Combined Civil Pty Ltd v Rikaloski

[2007] NSWWCCPD 181

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181

APPELLANT:  Combined Civil Pty Ltd

RESPONDENT:  Stanko Rikaloski

INSURER:CGU Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC783-07

DATE OF ARBITRATOR’S DECISION:          7 May 2007

DATE OF APPEAL DECISION:  20 August 2007

SUBJECT MATTER OF DECISION:                Boilermakers deafness; expert evidence; application of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; right of Arbitrator to rely on his own experience in the absence of expert evidence

PRESIDENTIAL MEMBER:  Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      TurksLegal

Respondent:   IDC Lawyers

ORDERS MADE ON APPEAL:  The Arbitrator’s determination dated 7 May 2007 is revoked and the following order made:

“1.Award for the Respondent Employer.

2.No order as to costs.”

No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. Stanko Rikaloski (‘the Respondent Worker/Mr Rikaloski’) worked for Combined Civil Pty Ltd (‘the Appellant Employer/Combined’) from 1994 until 13 September 2001 as a traffic controller for four hours per day seven days per week.  His duties were to change line posts on the road.  In the course of his work he was exposed to “noise of truck engines and traffic movements” (Mr Rikaloski’s statutory declaration 2 February 2007, paragraph six).  As a result of that noise he was “not able to communicate with co-workers at a normal conversational level” but had to “shout in order to be heard” (Mr Rikaloski’s statutory declaration 2 February 2007, paragraph seven).

1. He has not worked since ceasing employment with Combined in September 2001.  On 13 January 2003 he went onto the disability pension.

1. He completed an “Industrial Deafness - Notice of Injury Form” on 22 January 2005.  On 9 June 2005 Dr Lucchese assessed him to have a 9.2% binaural hearing loss, after adjustment for his age.  By letter dated 23 June 2005 Mr Rikaloski claimed the sum of $5,980.00 in respect of 9.2% binaural hearing loss.

1. His claim was denied by letter dated 9 March 2006 from CGU Workers Compensation (NSW) Limited (‘CGU’) on the basis of evidence from Dr Carroll in his report of 24 November 2005.

1. An Application to Resolve a Dispute (‘the Application’) was registered in the Workers Compensation Commission (‘the Commission’) on 8 February 2007 claiming lump sum compensation as particularised in the letter of 23 June 2005.

1. By its Reply filed on 23 March 2007 Combined disputed liability on the grounds that Mr Rikaloski had not been employed by it in employment to the nature of which hearing loss was due, he suffered no hearing loss and it was not the last entity to employ Mr Rikaloski in employment to the nature of which hearing loss was due.

1. The matter was listed for conciliation and arbitration before a Commission Arbitrator on 4 May 2007 when it proceeded to arbitration.  In an ex tempore decision the Arbitrator found in favour of Mr Rikaloski. 

1. In an ‘Appeal Against Decision of Arbitrator’ filed on 29 May 2007 Combined seeks leave to appeal that decision.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has yet been made in this case but if the appeal is successful Mr Rikaloski will receive no compensation. Therefore, the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

Interlocutory

1. The Respondent Worker has not made any submissions on whether the appeal is against a determination of a preliminary or interim order of an interlocutory nature.  Consistent with the decision of P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 I am satisfied that the determination is not a preliminary or interim determination of an interlocutory nature.

1. I grant leave to appeal.

PRELIMINARY MATTERS

1. Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 7 May 2007, records the Arbitrator’s orders as follows:

“1.That the Respondent is the last noisy employer of the Applicant of which the employment was such a nature as to cause hearing loss pursuant to s17 of the Workers Compensation Act 1987.

2.That the dispute concerning permanent loss due to industrial deafness pursuant to s66 of the Workers Compensation Act 1987 be referred to the Registrar to allocate to an Approved Medical Specialist.

3.That the deemed date of injury is 12 September 2001 and the assessment is to be undertaken based on the Table of Disabilities.

4.That the Application to Resolve a Dispute and the Application to Admit Late Documents (the Reply) and all attachments are to be disclosed to the Approved Medical Specialist.

5.That the Respondent pays the Applicant’s costs as agreed or assessed following the finalisation of this matter.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)finding that Combined was contracted to construct roads;

(b)finding that “presumably” Mr Rikaloski’s work site would have included “various pieces of road construction machinery, such as rollers, scrapers, front-end loaders, backhoes and trucks” (T6.19) when he conceded there was no evidence on this point;

(c)assuming that Mr Rikaloski was exposed to noise from road construction machinery when there was no evidence of that fact;

(d)finding that employment in the road construction industry was employment to the nature of which hearing loss was due when there was no evidence of that fact;

(e)finding that employment in the road construction industry, with its attendant construction noise and traffic movement noise, would “average out at around about 85 decibels per working day” (T6.44) when there was no evidence of that fact;

(f)relying on his own experience to conclude that employment in the road construction industry would have averaged out at around 85 decibels per working day;

(g)misunderstanding and incorrectly applying the law in relation to the test for noisy employment as stated in Callaby v State Transit Authority (NSW) & another (2000) 21 NSWCCR 216 (‘Callaby’) and in Blayney Shire Council v Lobley & another (1995) 12 NSWCCR 52 (‘Lobley’);

(h)giving no reasons for preferring the history taken by Dr Lucchese over that taken by Dr Carroll, and

(i)making his decision without any reference to the evidence.

REVIEW

1. The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission.  In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:

“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”

1. The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 (‘Zheng’) where Bryson JA said at [38]:

“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”

1. This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’).  To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).

1. Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion.  The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).

1. I intend to apply the above principles in the matter before me.

SUBMISSIONS

1. The Appellant Employer’s submissions may be summarised as follows:

a)   the test for whether a worker’s employment is employment to the nature of which boilermaker’s deafness is due is whether the “tendencies, incidents or characteristics” of that employment were of a type which could give rise to boilermaker’s deafness (Lobley);

b)   a worker has to prove that the nature of his or her employment involves a real, as opposed to a theoretical, risk of hearing loss (Callaby);

c)   in Galdemar v Asta Enterprises Pty Ltd (1998) 17 NSWCCR 155 (‘Galdemar’) it was held that the level of noise to which a worker is exposed and whether that level is sufficient to cause boilermaker’s deafness is not evidence that can be given by a layperson;

d)   the best evidence is from a sound or acoustic engineer.  No such evidence was called in the present matter so the Arbitrator was required to look for guidance from the next best evidence, the medical experts;

e)   Mr Rikaloski’s medical evidence was from Dr Lucchese who said at page two of his report of 10 June 2005 that “the last noisy employer was Combined Civil Pty Ltd”;

f)   Combined relied on a report from Dr Carroll dated 24 November 2005 in which he concluded that he was not convinced “upon the history which I obtained that Combined Civil would qualify as the last noisy employer”;

g)   the Arbitrator should have preferred the opinion of Dr Carroll because it was based on a history of employment that was consistent with the description of employment given by Mr Rikaloski in his statutory declaration of 2 February 2007 whereas Dr Lucchese’s history was not consistent with that statutory declaration;

h)   Mr Rikaloski only worked for four hours per day and Dr Lucchese did not have that history;

i)   as Mr Rikaloski only worked for four hours per day he could have been safely exposed to noise levels in excess of 85 decibels;

j)   the Arbitrator’s finding that “presumably” Combined contracted to construct roads (T6.17) was unsupported by the evidence;

k)   none of the Arbitrator’s findings as to noisy employment were supported by the evidence, and

l)   the Arbitrator was not entitled to rely on his personal experience (Barbour v BHP Steel Pty Limited [2004] NSWWCCPD 42 (‘Barbour’)).

1. The Respondent Worker’s submissions may be summarised as follows:

a)   Mr Rikaloski’s history to Dr Lucchese was not inconsistent with his statutory declaration or the history given to Dr Carroll.  The fact that Mr Rikaloski did not mention machinery in his statutory declaration did not mean that the Arbitrator could not make a finding that he was in fact working in and around machinery;

b)   the submission that Mr Rikaloski could safely be exposed to noise of 85 decibels per day assumes that the noise level was not more than 85 decibels, but the Appellant Employer called no evidence to that effect;

c)   the Arbitrator was at liberty to consider and rely on both medical reports in making his decision;

d)   the Appellant Employer never sought particulars about Mr Rikaloski’s duties nor did it question in writing the nature of Mr Rikaloski’s employment or his alleged exposure to noise;

e)   in rejecting the claim it was never asserted that the employer was not sufficiently noisy to have caused the loss;

f)   the Arbitrator relied on knowledge that was “held on a widespread basis by general members of the community, of which the Arbitrator is a member and therefore on which he is entitled to rely” (Respondent Worker’s submissions 10 July 2007, paragraph five), and

g)   the Arbitrator correctly applied the principles in Lobley and Callaby.

DISCUSSION AND FINDINGS

1. Dr Lucchese’s report recorded that Mr Rikaloski complained of progressive hearing loss in both ears for many years, associated with mild tinnitus.  He took no history of Mr Rikaloski experiencing any head injury, vertigo, ear infections or any non-occupational noise exposure.  There was no family history of hearing loss and no history of the ingestion of ototoxic drugs.

1. Under ‘Employment History’ the doctor recorded that from 1994 until 12 September 2001 Mr Rikaloski worked as a traffic controller for Combined.  In that time “he was exposed to noise of construction site machinery, without hearing protection.” (emphasis added)  The audiogram conducted by Dr Lucchese showed bilateral high tone sensorineural hearing loss.

1. Dr Lucchese concluded:

“On the balance of probabilities, Mr Rikaloski’s hearing loss in the low tones through to the high tones is attributed to exposure to industrial noise as detailed in the employment history above, as he has over twenty years of noise exposure.  The last noisy employer was Combined Civil Pty Ltd.”

1. In his statutory declaration Mr Rikaloski said:

“4.During my employment with CC [Combined] I was required to work about 4 hours a day, for 7 days a week.

5.I was employed as a traffic controller for about 7 years and 8 months.  My duty was to change line posts on the roads regularly using trucks.

6.I was exposed to noise of truck engines and traffic movements.

7.We were not able to communicate with co-workers at a normal conversational level.  Instead, we had to shout in order to be heard.” (emphasis added)

1. Dr Carroll recorded the following history:

“Mr Rikaloski was last employed at Combined Civil Pty Ltd where he worked for 6.5 years as a traffic controller.  They subcontracted to the RTA and he used [to] insert the candy bars into the road to divert the traffic on two major roads.  His noise exposure came from traffic movement.”

1. Based on this history Dr Carroll concluded, “I was not convinced upon the history which I obtained that Combined Civil would qualify as the last noisy employers”.

1. The Appellant Employer’s principal objection to the Arbitrator having relied on Dr Lucchese’s opinion is that he had the wrong history.  He recorded that Mr Rikaloski was exposed to noise from “construction site machinery” when Mr Rikaloski claimed in his statutory declaration that he was exposed to noise from “truck engines and traffic movements”.  This submission ignores the principle that a history recorded by a doctor can be evidence of the facts recorded (see Daw v Toyworld (NSW) Pty Limited [2001] NSWCA 25 and section 60 Evidence Act 1995). Therefore, this ground of appeal is not made out. Dr Lucchese’s history that Mr Rikaloski was exposed to noise from construction site machinery was evidence of that fact. However, much more is needed in order to establish that employment is employment to the nature of which boilermaker’s deafness is due. In Galdemar (at 161) it was noted that it is not merely the level of noise to which a worker is exposed but also the length of the exposure that is relevant. Those issues must be the subject of relevant specialist evidence (Galdemar at 160).

1. The more relevant challenge to the Arbitrator’s decision is that there was no evidence of the noise level to which Mr Rikaloski was exposed, the period of exposure, and whether those two factors were sufficient to result in his employment being employment to the nature of which boilermaker’s deafness is due.  I agree with this submission.  The Arbitrator conceded as much when he said there was no evidence that Mr Rikaloski’s employment exposed him to a noise level of 85 decibels (T6.46).  Therefore, it was not open to the Arbitrator to find that Combined was a ‘noisy employer’ under the legislation.  Whilst the Commission is an expert tribunal and it is taken to be aware of wage rates in the general labour market (see Akawa Australia Pty Ltd v Cassells (1995) 25 NSWCCR 385 at 392 and ICI Australia Operations Pty Limited (now known as Orica Australia Pty Ltd) and Another v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 60 NSWLR 18 at [219] - [232]) that expertise does not extend to determining issues of ‘injury’ and ‘causation’ in the absence of appropriate expert evidence (see Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 at [82]; Wallaby Grip v Macleay Area Health Service (1998) 17 NSWCCR 355 at [20] and Barbour at [27]).

1. The principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Makita’) are also relevant.  That case made it clear that the prime duty of experts in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions (per Heydon JA in Makita at [59]). Without that evidence the expert’s opinion will be a ‘bare conclusion’ (Makita at [59]). In many cases the history recorded by an expert will not accord precisely with the other evidence in the case. In that situation the question will be whether the history recorded provided a ‘fair climate’ for the acceptance of the expert’s opinion (Makita at 731-732; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510 and Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76).

1. In the present case Dr Lucchese’s history 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.

1. For the following reasons, I reject the Respondent Worker’s additional arguments:

a)   the submission that the Appellant Employer did not call evidence that the noise level was not more than 85 decibels is misconceived.  The onus of proof rested with the Respondent Worker to prove his case (Galdemar).  He did not do so;

b)   it is correct that the Arbitrator was at liberty to consider and rely on the evidence from both experts.  Even doing that the Respondent Worker has not established his case;

c)   the Arbitrator at T1.20 identified the issue in dispute as being whether Combined was the last noisy employer.  That issue was clearly identified in the Appellant Employer’s Reply which was “admitted into the proceedings” without objection (T1.27), and

d)   there was no obligation on Combined to seek particulars of Mr Rikaloski’s duties and its failure to do so was irrelevant to the issue in the case.

Conclusion

1. In the absence of appropriate expert evidence on the matters in issue, Mr Rikaloski’s claim must fail.

DECISION

1. The Arbitrator’s determination dated 7 May 2007 is revoked and the following order made:

“1.Award for the Respondent Employer.

2.No order as to costs.”

COSTS

1. No order as to costs of the appeal.

Bill Roche

Deputy President  

20 August 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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