Birta v Camperdown Childcare Centre

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Birta v Camperdown Childcare Centre [2024] NSWPIC 385
APPLICANT:	Regina Birta
RESPONDENT:	Camperdown Childcare Centre
MEMBER:	Fiona Seaton
DATE OF DECISION:	18 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; Workplace Injury Management and Workers Compensation Act 1998; alleged hearing loss due to noise exposure working as a chef; claim for hearing aids; permanent impairment; whether claim was brought within time; applicant was employed by the respondent in employment to the nature of which the injury, noise induced hearing loss, is due; Held – applicant brought her claim within time; matter remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment; the supply and fitting of binaural hearing aids to the applicant is reasonably necessary as a result of noise induced hearing loss; the injury has materially contributed to the need for hearing aids; respondent to pay the costs of the supply and fitting of binaural hearing aids in accordance with the applicable Workers Compensation (Hearing Aid Fees) Order.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant was employed by the respondent in employment to the nature of which the injury of industrial deafness is due for the purposes of s 17(a)(ii) of the Workers Compensation Act 1987 with deemed date of injury 1 November 1994. 2. The applicant became aware and made her claim for compensation within the time prescribed by s 261 of the Workplace Injury Management and Workers Compensation Act 1998. 3. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 1 November 1994 (deemed); (b) Body systems/parts: permanent binaural hearing loss (Noisy employment hearing loss), and (c) Method of assessment: Table of Disabilities. 4. The documents to be referred to the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents, and (b) the respondent’s Reply and attached documents. 5. The respondent is to pay the cost of the supply and fitting of binaural hearing aids pursuant to s 60 of the Workers Compensation Act 1987 in accordance with the applicable Workers Compensation (Hearing Aid Fees) Order.

STATEMENT OF REASONS

BACKGROUND

The applicant Ms Regina Birta was employed for 24 years as a chef. Her last employer was the Camperdown Childcare Centre (the respondent) and the deemed date of injury is 1 November 1994. The applicant alleges she sustained a hearing loss injury due to loud noise during her employment with the respondent.
The applicant claims medical and related expenses for the costs associated with the supply and fitting of hearing aids in accordance with the Workers Compensation (Hearing Aid Fees) Order 2024 and lump sum compensation for permanent impairment for 9.34% binaural hearing loss.
The respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 7 December 2023 disputing liability for the claim on the basis that the respondent is not a noisy employer and that the applicant’s claim was brought outside legislative timeframes.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (the Commission) on 9 May 2024 claiming the cost of supply and fitting of hearing aids and lump sum compensation for binaural hearing loss with a deemed date of injury of 1 November 1994.
The dispute was listed for conciliation/arbitration for determination of whether the respondent was the last noisy employer of the applicant and whether the claim was made within time.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the respondent was a noisy employer pursuant to s 17 of the Workers Compensation Act 1987 (the 1987 Act), and
(b) whether the applicant’s claim was made within the time prescribed by s 261 of the 1998 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing before the Commission on 28 June 2024. Mr Luke Morgan appeared for the applicant instructed by Mr Ayoub. Mr Thomas Murray, legal practitioner, appeared for the respondent. Ms Magalhaens was present for the insurer. Ms Stephenson, the applicant’s daughter, was also present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) respondent’s Reply and attached documents.

Oral evidence

No application was made to call oral evidence.

Applicant’s evidence

The applicant’s evidence is contained in her statement signed on 3 May 2024.
The applicant is 85 years of age. She first gained employment as a chef in or around 1970 with Church of England National Emergency FundUniversity Hall where she remained until 1980.
Her employment as a chef, usually working full time, was then as follows; Presbyterian Ladies College Croydon between 1980 and 1982, St Joseph’s Monastery at Hunters Hill between 1982 and 1984, the Royal Automobile Club of Australia from 16 March 1984 to 9 November 1984 and St Basil’s Homes from 14 July 1986 to 5 August 1988.
During each of these employments the applicant was exposed to continuous loud noise from large mixers, industrial ovens, range hoods and commercial dishwashers. The applicant was forced to shout if she wanted to be heard by someone who was approximately only one metre away from her. She did not wear ear protection during this period.
In or around October 1988 she gained full time employment as a chef with the respondent, ceasing the employment in or around November 1994. She was required to work five days per week for approximately six to eight hours per day.
The applicant was required to cook for around 60 children between two and six years of age. She was subjected to continuous loud noise from the children screaming. She was always surrounded by children, especially when serving food during morning tea, lunch and afternoon tea, and as the kitchen was next to the classroom which was adjacent to the dining room.
As well as the noise from children screaming, the applicant was exposed to noise within the kitchen area from large mixers, industrial ovens, mix masters, range hoods and commercial dishwashers.
The noise level while working at the respondent’s childcare centre was always at a level where the applicant was forced to raise her voice or shout in order to be heard by someone or communicate with someone one metre away from her. She did not wear ear protection as she was required to communicate and give directions in the kitchen.
The applicant retired in 1994.
Approximately 10 years ago the applicant consulted Australian Hearing in Campbelltown as she was having trouble in her day-to-day life with difficulty hearing clearly in particular situations. She was fitted with hearing aids under the Government Pension Scheme.
Due to difficulty hearing the applicant consulted her general practitioners at Ingleburn Medical Centre in or around early 2022. She had not found the hearing aids to be very beneficial. She was referred to Connect Hearing Campbelltown.
On 30 May 2022 she attended at Connect Hearing for a hearing test. Following the test she was advised of their measurements and it was suggested that her hearing loss may be due to exposure to noisy employment. Her details, with her permission, were forwarded to her current solicitors.
Her solicitors arranged for her to be assessed by Dr Thandavan Raj, ear, nose and throat specialist, on 22 August 2023. Dr Raj informed her that a degree of hearing loss was a direct result of exposure to loud noise due to her employment. This was the first time she was told the respondent was responsible for her industrial deafness.
After receiving confirmation of her entitlements associated with occupational hearing loss the applicant instructed her solicitors to make the claim in respect of her injury.
The applicant’s evidence is that while she has been aware of her hearing loss for some time, she was not aware that it was related to exposure to noise during her employment with the respondent until she received legal advice from her solicitors.
There has been no exposure to loud noise outside of the applicant’s employment and she has not previously received compensation for her hearing loss.
The applicant has difficulty watching television and talking on the telephone. Turning the volume up on the television annoys and irritates her family. She struggles to hear people talking in a different room inside her house and she needs to be face to face to hear what they are saying and to read their lips. She has difficulty hearing in group situations with prominent background noise and in open spaces such as shopping centres, food courts or anywhere where there is background noise.
Her hearing difficulties mean she often feels socially withdrawn because of her struggle to maintain free-flowing conversations, and this negatively impacts her quality of life, her mental health and wellbeing.
The Notice of Injury is dated 29 November 2022.
The applicant’s claim was made to the respondent by letter dated 15 September 2023 relying on the report of Dr Raj of 23 August 2023 and including the notice of injury. The claim was forwarded to the respondent’s insurer by letter dated 20 September 2023. The solicitors for the insurer served the s 78 notice dated 7 December 2023 and requested further and better particulars.
The respondent disputed liability for the claim on the basis that there was insufficient evidence adduced to establish the respondent was the last noisy employer, and there was no evidence supplied addressing the nature, extent, volume and duration of the purported noise exposure.
The respondent also disputed that the applicant had made her claim within the time prescribed by s 261 of the 1998 Act. She had been wearing hearing aids for some 10 years, suggesting she had received treatment for the alleged injury and received advice as to the nature and cause of her hearing loss well prior to making the current claim.
The respondent’s reliance on its s 78 notice of 7 December 2023 was confirmed by way of email on 3 May 2024.
The applicant relies on the medico-legal report of Dr Raj dated 23 August 2023.
Dr Raj notes the applicant has been exposed to noise for 24 years in her employment as a chef from large mixers, industrial ovens and commercial dishwashers, and in her last job with the respondent also from the children screaming.
In the doctor’s opinion the noise to which the applicant was exposed during her employment with the respondent was of such a nature that would cause boilermaker’s deafness or another deafness of similar origin.
Based on the history Dr Raj obtained from the applicant it is his opinion that the tendencies, incidents, and characteristics of her employment with the respondent are such as to give rise to a real risk of boilermaker’s deafness or deafness of a similar origin.
The doctor assessed the applicant’s binaural hearing loss at 9.34% and provided his opinion that hearing aids will assist the applicant in the high frequencies where the loss is due to industrial deafness, so that hearing aids would be considered reasonably necessary as a result of the injury. The industrial deafness in Dr Raj’s opinion materially contributes to the requirement of those hearing aids.
Connect Hearing Campbelltown’s audiogram of 30 May 2022 is included with the application as well as their quotation dated 8 May 2024 for the supply and fitting of hearing aids in the amount of $7,871.67.

Respondent’s evidence

In his referral of the applicant to Ingleburn Community Health Centre on 29 January 2018 Dr Kallan, general practitioner, requests assessment and advice on further hearing assessment.
Mr Johnson, audiologist, of Australian Hearing at Campbelltown reports to Dr Kallan on 14 May 2018 with a summary of his audiological assessment. This revealed a slight change in hearing levels in the left ear only and he says the applicant would benefit from hearing aids in both ears.
On 1 October 2018 Dr Kallan refers the applicant to Dr Naidoo and requests an assessment and advice on further treatment and management, noting tinnitus on the applicant’s left ear and that hearing aids did not help.
Dr Sam McGuinness, locum ear, nose and throat specialist, reports to Dr Kallan on 27 November 2018 that the applicant has a long history of a left sided hearing loss and tinnitus and a clinical hearing test suggested left sided sensorineural hearing loss. He sent her for an MRI scan and repeat audiogram.
The audiogram of Ms Phillipa Hunt, audiologist, dated 10 December 2018 in summary found mild/moderate to moderately severe sensorineural loss and normal middle ear function in both ears. She strongly advises that the applicant’s hearing aids be attended to.
The clinical notes of Connect Hearing include on 30 May 2022 that the applicant lost her right hearing aid, that they had not previously been fitted through workers compensation, and that the applicant commented that she first started to notice her hearing deteriorate when she was working in a noisy kitchen environment as a chef. It was recommended she consider an initial workers compensation claim on the basis that her employment makes a significant or enough of a contribution to her hearing loss.
The notes made on that date include “[g]radual decline to hearing first noticed in the 90s when working as a chef in a busy kitchen (e.g. for a nursing home). Very loud machinery. Initially put HL down to this, but continued to deteriorate.”[1]
[1] Reply page 11.
The clinical notes of Ingleburn Medical and Dental Centre note ‘Hearing aid’ in Past Medical History 2023. There is a record of recommendations to have a hearing test and see an audiologist in 2018, difficulties with using hearing aids in 2019, that hearing aids are being used in 2019 and 2021, and the applicant is waiting for a new hearing aid in 2022.
The respondent’s s 78 notice dated 7 December 2023 is also attached to its Reply, referred to above.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record, and these are summarised below.

There is only one factual case put by the applicant on noisy employment. Deputy President Roche in Dawson & Ors t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (Dawson) at [35] and onwards discusses the authorities and effectively confirms that the applicant does not need to have a noise study done if she can show the ‘tendencies, incidents or characteristics ‘ of the employment were such as to give rise to the risk or the likelihood of suffering hearing loss.
The evidence in that regard is that of the applicant in her statement. She describes her employment over many years and in particular with the respondent.
The applicant has identified the fact that she was working full time and the noise levels were always high. You would need to shout if you wanted to be heard by someone who is only one metre away, and she did not wear ear protection.
In addition to that the work with the respondent was in a childcare centre which is by its very nature noisy. The applicant describes being required to cook for 60 children. She was subjected to a continuous level of noise from screaming, she was surrounded by children during her work and especially when serving food at morning tea, lunch and afternoon tea, she was always within the proximity of noise generated by the children.
The applicant was also exposed to continuous noise in the kitchen from large mixers, industrial ovens, mix masters, range hoods and commercial dishwashers. The noise while working in the centre was always at a level which forced her to raise her voice or shout to be heard or communicate with someone. She did not wear ear protection as she was required to communicate and give directions. The applicant retired in 1994.
There is identification of the type of work likely to give rise to hearing loss and identification of the last noisy employer as the named respondent in these proceedings.
There is no evidence to suggest the applicant engaged in any subsequent employment at all, let alone in any employment that was relevantly noisy for the purposes of the 1987 Act.
The report of Dr Raj supports that proposition. Dr Raj records a consistent history of the nature of the work engaged in. The doctor’s testing suggested that some of the pathology was not related to industrial deafness but there were parts of it that were.
Dr Raj says: “it is my opinion that the tendencies, incidents, and characteristics of the worker’s employment with Camperdown Child Care Centre are such as to give rise to a real risk of boilermaker’s deafness or deafness of a similar origin.”[2]
[2] ARD page 25.
That is the factual matrix and there is no evidence brought by the respondent to suggest anything to the contrary. The applicant’s submission is that there is little difficulty accepting the worker was engaged in employment the nature to which the disease was due, that is industrial hearing loss, and this has been established by the applicant.
The next question to determine is the operation of s 261 of the 1998 Act.
Assuming the respondent is asserting the applicant has failed to make the claim within six months after the injury or accident happened, when the injury happened with reference to the exculpatory section s 261(4) needs to be considered. This provides that it is not a bar to recovery if the failure to make a claim was occasioned by ignorance, mistake, absence from the State or other reasonable cause and the claim is made either within three years in accordance with s 261(4)(a) or (b).
Based on the medical reporting of Dr Raj and the applicant’s own statement there is evidence that she suffers from serious and permanent disablement.
The applicant’s significant hearing loss at this stage of her life creates a level of uncertainty and clearly discomfort one would imagine of any individual not being able to communicate with others in some circumstances. An otherwise healthy individual could expect to be in a position to enjoy their retirement, but she is faced with having to manage significant hearing loss.
Section 261(4) would exclude the operation of s 261(1) but the applicant’s submission is that the respondent falls at the first hurdle as the claim was made within time in accordance with the 1998 Act.
Unilever Australia Ltd v Petrevska [2013] NSWCA 373 (Petrevska) discusses identifying the relevant date of injury for the purposes of the section. The applicant submits that the same facts apply in this case.
It was not until the applicant saw Dr Raj and he provides the opinion on the relationship between the hearing loss she is suffering and the workplace that the injury actually manifests itself. Dr Raj also says there are other contributors to the hearing loss.
An audiologist who performs the testing by simply saying ‘I think it is related to workplace issues and go and see a solicitor” is not sufficient in the applicant’s submission. The relevant date for the purposes of the section is not identified until the particular type of hearing loss that is industrial is identified by a specialist, the applicant is asked who she last worked for, what was the work and what sort of noise exposure did she have and Dr Raj then expresses an opinion. It is on that basis that the applicant makes a claim.

The applicant’s submission is that those sections do not apply to this claim for those reasons. The employment with the respondent was noisy and the respondent was the last noisy employer.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record, and these are summarised below.
The respondent refers to the description given by the applicant with respect to the circumstances of her employment and the associated noise exposure.
What cannot happen in this jurisdiction is to elevate a lay history given by a worker to establish noisy employment. That is solely a matter for expert evidence and the authorities plainly confirm that.
Expert evidence must draw a link between the circumstances of the applicant’s employment as known by the expert or as reported by the expert, and whether that exposure to noise or the level of noise is sufficient to constitute noisy employment.
There is no acoustic expert evidence relied upon by the applicant. That is not necessarily fatal as Dawson makes clear. The only evidence the applicant relies upon as expert evidence is the report of Dr Raj who is the ear, nose and throat surgeon.
Dr Raj takes the following history;
“She started at the CENEF University Hall in 1970 for ten years. Her subsequent employers were PLC College, Croydon, St Joseph’s Monastery, RAC, and St Basil Homes, all between 1980 and 1988. Her last employment was with Camperdown Child Care Centre between 1988 and 1994.”[3]
[3] ARD pages 24-25.
The respondent submits this is the only history seen from Dr Raj. The doctor goes on to say the noise exposure was similar in all the jobs from large mixers, industrial ovens and commercial dishwashers, and at her last job also from the children screaming.
In the respondent’s submission Dr Raj has dealt with the nature of the applicant’s employment duties and associated noise exposure in wholistic terms and he has not engaged with the question of the applicant’s specific employment with the respondent.
Dr Raj does not have the applicant’s statement which was prepared some six months after his examination of the applicant. The history recorded above is effectively the only history the doctor has.
There is no evidence of a history going to the two critical issues necessary to establish noisy employment in the respondent’s submission.
The first is the level of noise to which the applicant was exposed. The report is completely silent on that issue. The doctor has not even attempted to record a history of the level of noise the applicant was exposed to in the course of her employment.
There is no comment made by Dr Raj on the duration of the noise exposure and whether it was constant, temporary or sporadic. The doctor does not engage with those critical issues.
Three authorities support the respondent’s submission that the evidence the applicant has adduced falls well short of discharging her onus of proof in establishing noisy employment.
The first is Dawson where DP Roche says at [44]:
“Whilst it is not necessary for a worker to call an acoustics engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say ‘my employment was noisy and I have boilermaker’s deafness’. It is always essential that he or she present detailed evidence (if no acoustics expert is to be relied on) of the nature (volume) and extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the ‘tendency, incidents or characteristics’ of that employment are such as to give rise to a real risk of boilermaker’s deafness.” (Emphasis in original.)
The claim falls short as the evidence in the applicant’s statement has not been given to an expert. Dr Raj has no history of the nature, volume, extent or duration of the noise exposure which Dawson says is essential.
DP Roche in Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181 (Rikaloski) at [34] referred to a specific history recorded by Dr Lucchese which did not provide any basis for the acceptance of his conclusion;
“The bald assertion that Mr Rikaloski was exposed to the noise of ‘construction site machinery’ was of no assistance. The relevant question is: how noisy was that machinery and over what period was Mr Rikaloski exposed to that noise? Without answers to those questions from a properly qualified expert, Mr Rikaloski’s claim must fail.”
The respondent’s submission is that there is a direct correlation between the nature of the evidence put forward by Dr Raj and the comments of DP Roche above.
Finally, referring to Murie v Schindlers Lifts Australia Pty Ltd [2012] NSWWCCPD 22 (Murie) and noting Dr Raj was coincidentally criticised in that case, President Keating held at [62]:
“The Arbitrator’s conclusion hinged on the inadequacy of the history relied upon by Dr Raj as a basis for forming an opinion as to whether the tendency, incidents or characteristics of the worker’s employment were such as to give rise to a real risk of boilermaker’s deafness.”
The respondent submits that the above comments were made in Murie even while accepting the worker’s evidence and that he told Dr Raj what he had discussed in his statement. There is the same scenario in this case. The lay evidence in the applicant’s statement cannot cure the deficiencies with Dr Raj’s expert opinion.
The question of noisy employment must turn on the nature and quality of the expert evidence the applicant puts forward and there is only Dr Raj’s expert opinion. His report falls short when you look at the above three authorities, and noting it is the applicant’s onus.
The same areas identified in these three cases squarely apply to this particular case and accordingly the respondent submits there should be an award for the respondent.
On the question of the late making of the claim under s 261, sub-s 1 requires a claim to be made within six months after the injury or accident occurred. Sub-section 6 requires consideration of the date on which the applicant became aware.
That applicant suggests as in Petrevska the applicant had seen an audiologist and that is not an appropriate specialist. The respondent does not accept that the issue in that case arises here, or the submission advanced. The respondent squarely submits that an audiologist or audiometrist is such a specialist capable of creating awareness on the part of an applicant.
The applicant was referred to Australian Hearing at Campbelltown in 2018. There is reference to an audiological assessment and hearing aids being provided. There is no indication in that report that the applicant was informed of the relevance of noisy employment but she was as at 30 May 2022.
The applicant is noted as commenting that she first started to notice her hearing deteriorate when she was working in a noisy kitchen environment as a chef. Given she was really wanting a pair of new hearing aids and would be better off with a non-custom option, it was recommended she consider a workers compensation claim. The applicant was quoted as saying “I don’t want to lie”.
There is a letter addressed to Turner Freeman Lawyers on 30 May 2022. There can be no doubt in the respondent’s submission that as of 30 May 2022 the applicant was aware she had suffered an injury in accordance with Petrevska. She had undergone an audiogram, she had had a discussion with an expert audiologist regarding her alleged exposure to noise in the course of her employment and she had moreover been referred to a lawyer at that point in time.
The delay is not greater than three years so the question of serious and permanent disablement does not arise in the respondent’s submission. The delay is greater than six months and so the factors in s 261(4) are to be considered and whether the applicant has put forward a satisfactory explanation or excuse for failing to make a claim within time.
There is no evidence dealing with mistake, absence from the State or other reasonable cause.
On the question of ignorance the respondent makes two submissions; first that there is little doubt the applicant was informed by Connect Hearing in Campbelltown in 2022 that the respondent was responsible for her deafness. In accordance with Petrevska awareness does not turn on legal advice, it is when medical or specialist advice is given to draw the connection between the nature of the hearing loss and its cause.
Ignorance means ignorance of the rights deriving under the 1998 Act and the obligations imposed by it: Gregson v L & M R Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520. The applicant was not ignorant after 30 May 2022.
There is no evidence given by the applicant herself of any other reasonable cause. The applicant does not address why, after 30 May 2022 when she was plainly aware of her injury, the claim was not made within six months from that date.

Applicant’s submissions in reply

Regarding the ignorance point, as in Petrevska there are a variety of possible causes for the hearing loss and all you have is an audiologist who is not a medical practitioner expressing a view to the applicant of her thoughts on what the cause of some of her hearing loss might be, and she recommends she seek legal advice.
The lawyer then takes a statement and takes notice of the potential injury and refers the applicant to a specialist for an opinion of whether there is indeed a work cause. The specialist’s report comes back and says there is a work cause. As is proper in the circumstances the legal practitioner then makes a claim once there is evidence that there is a work injury, and that is exactly what occurred in Petrevska.
As discussed in Petrevska at [25] the cause of hearing loss is gradual and will ordinarily not be a fact of which the worker is aware until he or she receives medical advice. While the worker may well have, as did Ms Petrevska and Ms Birta, an opinion or belief that the hearing loss is related to the employment this is not sufficient. This will ordinarily require expert advice. All that puts Petrevska on all fours with this case.
The applicant’s submission is that s 261 has no role to play as it is clear the applicant became aware of the injury once she had Dr Raj’s expert opinion.
Regarding the criticism of Dr Raj, the doctor identified in the history that was taken the noise in this particular instance, not only noise exposure being similar in all the jobs. He talks of large mixers, industrial ovens, commercial dishwashers but also in the last job children screaming. The applicant worked in that employment for some 24 years. We have the length of her exposure and the identification of the particular industrial devices giving rise to the noise. The doctor pulls the threads together to provide his opinion that the tendencies, incidents and characteristics of the work are such as to give rise to the risk of boilermaker’s deafness or deafness of similar origin.
The authorities referred to by the respondent are not authorities for the proposition that there needs to be on the part of the doctor a word for word recitation of everything the applicant tells him. The doctor has recorded a history consistent with the applicant’s subsequent statement.
On the background of that evidence tied in with the detailed evidence of the applicant in her statement there is more than enough evidence available to be satisfied, as in the authorities and particularly Dawson, relative to the incidents, tendencies and nature of the work that the work involved was noisy, and awards as sought would follow.

FINDINGS AND REASONS

Was the respondent a noisy employer

Section 17 of the 1987 Act contains special provisions in respect of hearing loss injuries caused by a gradual process.
Section 17(1)(a)(ii) deems the hearing loss injury to have happened on the last day on which the worker was employed in an employment to the nature of which the injury was due. Section 17(1)(c)(ii) states that compensation is payable by the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave notice of the injury.
The applicant is required to establish that the employment with the respondent was of such a nature as to be capable of causing boilermaker’s deafness relying on evidence that the ‘tendencies, incidents or characteristics’ of the employment were of such a type which could give rise to her hearing loss.[4]
[4] Dawson & Ors t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 at [35].
She does not necessarily need to rely on expert evidence to establish noise levels and it is possible for her to discharge her onus through her evidence and appropriate medical evidence.[5]
[5] Dawson & Ors t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 at [37]-[43].
Evidence of the extent and duration of the noise exposure must be sufficiently detailed and given to an expert for their opinion as to whether the ‘tendency, incidents or characteristics’ of that employment are such as to give rise to a real risk of boilermaker’s deafness.[6]
[6] Dawson & Ors t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 at [4].
In my view the applicant has discharged her onus of proving on the balance of probabilities that the ‘tendencies, incidents or characteristics’ of her employment with the respondent could give rise to her hearing loss for the reasons that follow.
The applicant’s evidence is that during her employment as a chef with the respondent between about October 1988 and November 1994 she worked five days per weeks for approximately six to eight hours per day. She was subjected to continuous loud noise from being surrounded by approximately 60 children of between two and six years of age who screamed, and particularly while she served food at morning tea, lunch and afternoon tea times. The kitchen was next to the classroom which was adjacent to the dining room.
The continuous noise from screaming children was in addition to the exposure to noise from the kitchen where there was continuous loud noise from large mixers, industrial ovens, mix masters, range hoods and commercial dishwashers.
The applicant’s evidence is that the noise level was always of such a level that forced her to raise her voice or shout to be heard by someone one metre away. There is no evidence provided by the respondent to challenge that and it is accepted.
As discussed in Dawson, it is not sufficient that the applicant simply states that her employment is noisy and she has boilermaker’s deafness, it is essential that her detailed evidence of the nature and extent of her noise exposure be given to an expert for their opinion.
The history Dr Raj records is consistent with the applicant’s statement evidence although he did not have her statement at the time of writing his report.
Dr Raj states that the applicant has been exposed for 24 years to noise from large mixers, industrial ovens and commercial dishwashers, and in her employment with the respondent also to noise from the children screaming. He specifically notes that the noise exposure during the applicant’s employment with the respondent was of such a nature that would cause boilermaker’s deafness or another deafness of similar origin.[7]
[7] ARD page 25.
Dr Raj states:
“[b]ased on the history I have obtained from the worker, it is my opinion that the tendencies, incidents, and characteristics of the worker’s employment with Camperdown Child Care Centre are such as to give rise to a real risk of boilermaker’s deafness or deafness of a similar origin.”[8]
[8] ARD page 25.
The respondent’s submission is that there is no history of two critical issues; the level of noise is not dealt with by Dr Raj and the evidence of the applicant falls well under what is required in Dawson.
In support of the requirement that detailed evidence be given by the applicant to Dr Raj of the nature and extent of her noise exposure, the doctor in my view has recorded a brief but sufficiently detailed history and description of the applicant’s noise exposure.
Dr Raj does not comment directly on the level of noise however he describes the various sources of the noise the applicant was exposed to, and evidence of the level of noise is found in the applicant’s statement evidence.
I do not accept the submission that the history relied on by Dr Raj is inadequate as the basis for forming his opinion as to whether the tendency, incidents and characteristics of the applicant’s employment with the respondent were such as to give rise to a real risk of boilermaker’s deafness.
Unlike the circumstances in Murie, the history recorded by Dr Raj provides the basis for the acceptance of his conclusion, and that history is consistent with the applicant’s statement evidence.
Unlike the facts in Rikaloski Dr Raj has in my view described the causes of the noisy environment, being the various kitchen devices as well as the screaming of children, and over a period of 24 years, the last six of which were while she was employed by the respondent.
As I have found that the applicant’s claim was made within six months in accordance with s 261(1) of the 1998 Act it is not necessary to consider the factors in s 261(4).
I note the respondent’s submission regarding failure to claim within the statutory period due to ignorance in the context of s 65 of the 1998 Act discussed in Gregson v L & M R Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520.
For completeness I observe that if it were necessary to determine whether the applicant failed to claim within six months due to ignorance in accordance with s 261(4), it is arguable that the applicant remained ignorant of her rights and obligations until she received the expert opinion of Dr Raj.
On 30 May 2022 the audiologist recommends she consider a workers compensation claim on the basis that her employment makes a contribution to her hearing loss, and she should seek legal advice. There is no evidence that the applicant was aware of her obligations under the legislation at that time, and she was arguably not aware of more than a potential entitlement to claim the cost of hearing aids. However this question does not require determination in this case.
The applicant has established through her statement evidence and the report of Dr Raj that the tendencies, incidents and characteristics of her employment with the respondent are such as to give rise to a real risk of boilermaker’s deafness or deafness of a similar origin.

Was the applicant’s claim made within time

Section 261 of the 1998 Act precludes recovery of compensation unless a claim for compensation has been made within six months after the injury or accident happened.
Section 261(4) states that failure to make a claim within that six month period is not a bar to the recovery of compensation for an injury if the failure was due to ignorance, mistake, absence from the State or other reasonable cause.
Section 261(6) states that if a worker first becomes aware that he or she has received an injury after the injury was received for the purposes of this section, the injury is taken to have been received when the worker first became so aware.
The applicant’s submission is that the applicant first became aware of her hearing loss injury in accordance with s 261(6) when she received the advice of Dr Raj in his report of 23 August 2023. The claim was made on 15 September 2023, therefore within six months of her becoming aware of receiving the injury.
The respondent’s submission is that the applicant first became aware of receiving the injury on 30 May 2022 when she consulted an audiologist at Connect Hearing who recommended she consider a workers compensation claim.
In her statement the applicant says it was suggested to her on 30 May 2022 that her hearing loss may be due to exposure to noise in employment and her details were referred to solicitors.
She says she became aware that she had hearing loss related to her employment with the respondent when she was assessed by Dr Raj on 22 August 2023. This was the first time she was told the respondent was responsible for her industrial deafness. There is some support found in the clinical records of Australian Hearing on 30 May 2022 where the applicant refers to noise from employment as a chef in a busy kitchen for example “for a nursing home”.[9]
[9] Reply page 11.

The respondent submits that the applicant’s evidence is contrary to the contemporaneous evidence with regard to the assessment by the audiologist on 30 May 2022 and that an audiologist is an appropriate expert.
This submission cannot be supported in my view as an audiologist does not appear to be an appropriate medical practitioner with specialised knowledge as discussed in Petrevska. It may be that there are cases where awareness can come before or without specialised knowledge. In Petrevska, as in this case, there were also different causes of the applicant’s hearing loss on which the advice of the audiologist was not provided.
In Petrevska the arbitrator summarised the observations made by DP Roche in Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17, including that the test of first becoming aware in s 261(6) is an objective test but based on the individual worker’s knowledge, and the worker cannot be said to be aware if he or she is unaware that the hearing loss has been caused by work. This will usually require specialised knowledge that will normally come from an appropriate expert in the field. The requisite awareness requires establishing awareness of having sensorineural hearing loss that has been contributed to by the employment.[10]
[10] Unilever Australia Ltd v Petrevska [2013] NSWCA 373 at [11]-[13].
It is not sufficient that the applicant is merely aware of loss of hearing and that she worked in a noisy place. In this case, as in Petrevska, I find that the applicant was not in a position to have awareness that she had sensorineural hearing loss which has been contributed to by her employment with the respondent until she received the advice of Dr Raj, an appropriate medical practitioner with specialised knowledge.
Considering all of the evidence on the balance of probabilities I find the applicant first became aware of her hearing loss injury when she received the expert opinion of Dr Raj on 23 August 2023. Her claim was brought within six months as required by s 261(1), entitling the applicant to recover compensation for the injury.

Lump sum compensation

The applicant claims lump sum compensation for 9.34% binaural hearing loss in the amount of $6,071 relying on the assessment of Dr Raj.
There is no evidence challenging that the applicant suffers permanent hearing loss.
The claim for lump sum compensation will be remitted to the President for referral to a Medical Assessor to determine the degree of the applicant’s permanent impairment.

Hearing aids

The applicant claims the costs of the supply and fitting of hearing aids pursuant to s 60 of the 1987 Act.
There is in evidence a quotation from Connect Hearing Campbelltown for the supply and fitting of hearing aids in the amount of $7,871.67.
Dr Raj’s opinion is that hearing aids will assist the applicant as her hearing loss in the high frequencies is due to industrial deafness. Therefore in the doctor’s view hearing aids would be considered reasonably necessary as a result of the injury, and industrial deafness materially contributes to the requirement of those hearing aids.
Hearing aids are an accepted treatment, there is no alternative treatment identified and no submissions have been made that the cost is excessive.
There will be an order that the respondent pay the reasonably necessary medical and related expenses for the supply and fitting of hearing aids in accordance with the applicable Workers Compensation (Hearing Aid Fees) Order.

[2024] NSWPIC 385

18 July 2024