Cunningham v State of New South Wales
[2017] NSWWCCPD 27
•30 June 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Cunningham v State of New South Wales [2017] NSWWCCPD 27 | |
| APPELLANT: | Stephen Cunningham | |
| RESPONDENT: | State of New South Wales (Sydney Local Health District) | |
| INSURER: | Employers Mutual (NSW) Ltd – NSW Treasury Managed Fund | |
| FILE NUMBER: | A1-5749/16 | |
| ARBITRATOR: | Ms C McDonald | |
| DATE OF ARBITRATOR’S DECISION: | 22 February 2017 | |
| DATE OF APPEAL DECISION: | 30 June 2017 | |
| SUBJECT MATTER OF DECISION: | Loss of hearing; s 17 of the Workers Compensation Act 1987; whether the employment had the “tendency, incidents or characteristics” such as to give rise to a real risk of industrial deafness; application of Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 and Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Taylor & Scott Lawyers |
| Respondent: | Bartier Perry | |
| ORDERS MADE ON APPEAL: | 1. The Senior Arbitrator’s determination of 22 February 2017 is confirmed. | |
INTRODUCTION
This appeal concerns a dispute regarding a worker’s entitlement to lump sum compensation and recovery of the cost of the provision of hearing aids in respect of hearing loss. It is accepted that the worker suffers from industrial deafness. However, the appeal concerns a challenge to a Senior Arbitrator’s finding that the respondent did not employ the worker in employment which has the tendency, incidents or characteristics which give rise to a real risk of suffering noise induced hearing loss.
For the reasons that follow the appeal fails.
BACKGROUND
In 1998 Stephen Cunningham, the appellant worker, commenced employment at Royal Prince Alfred Hospital as a security officer. His role required him to monitor alarms, assist staff to manage aggressive persons at work, carry out foot patrols, and, amongst other things, conduct lock up and unlock procedures. He is aged 65.
On 16 May 2016, Mr Cunningham’s legal representatives issued the respondent an Industrial Deafness Notice of Injury Form (notice form) dated 2 May 2016.
On 9 September 2016, Mr Cunningham completed a NSW WorkCover Permanent Impairment Claim form, in respect of hearing loss/industrial deafness deemed to have occurred on 16 May 2016. He relied upon the report of Dr Joseph Scoppa, ear nose and throat medico-legal consultant, dated 28 July 2016, and an audiogram report dated 8 April 2016.
On 15 September 2016, Mr Cunningham’s legal representatives made a claim for compensation in respect of his hearing loss. In particular, a claim for 12 per cent whole person impairment in respect of hearing loss and a claim for the cost of hearing aids.
On 20 October 2016, the respondent’s insurer, Employers Mutual Ltd, issued a s 74 notice denying liability. It claimed that the tendencies, incidents or characteristics of Mr Cunningham’s employment with the respondent was not employment to the nature of which loss of hearing was due (s 17 of the Workers Compensation Act 1987 (the 1987 Act)). It also claimed that Mr Cunningham’s employment prior to his employment with the respondent was likely to have been “noisy employment”.
On 8 November 2016, Mr Cunningham lodged an Application to Resolve a Dispute (the Application) seeking the costs of hearing aids and lump sum compensation in respect of 12 per cent whole person impairment for hearing loss. He claimed that his hearing was affected as a result of “working in a loud noisy environment on a repetitive and continuous basis whilst employed by the Respondent”.
On 21 November 2016, the respondent lodged a Reply to the Application relying upon the s 74 notice.
On 2 February 2017, the matter proceeded to conciliation/arbitration before a Senior Arbitrator, following which she reserved her decision. On 22 February 2017, the Commission issued a Certificate of Determination in favour of the respondent. The Certificate of Determination is in the following terms:
“The Commission determines:
1. The name of the respondent is amended to read ‘State of NSW (Sydney Local Health District)’.
2. Award for the respondent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Mr Cunningham appeals the Senior Arbitrator’s decision.
THRESHOLD MATTERS
There is no issue that the threshold requirements of s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as to the quantum of compensation in issue have been satisfied.
The appeal was lodged within 28 days of the Senior Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
ON THE PAPERS
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.”
Having regard to Practice Direction No 1 Determination of Matters “On the Papers” Without a Conciliation Conference or Arbitration Hearing or Hearing on Appeal Against a Decision of the Commission Constituted by an Arbitrator and Practice Direction No 6 – Appeal Against a Decision Constituted by an Arbitrator (Practice Direction No 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.
LAY EVIDENCE
In evidence are two statements by Mr Cunningham dated 21 September 2016 and 8 December 2016. He records that while he has been employed by the respondent he has been “exposed to loud noise on a regular and repetitive basis”. He said that he is exposed to the noise of fire alarms, duress alarms, ambulance and police sirens, and noise in the control room “on an intermittent and at times continuous basis for up to 8 hours per day”.
Mr Cunningham’s duties include work in a control room and outside the control room, where he attends to alarms. He could feel his “ears ringing from the noise level of some of the alarms”. His duties also included attending helicopter landings over the Sydney University Oval for about four years, during which time he was not provided with hearing protection.
Mr Cunningham was exposed to noise from 40 to 60 alarms per shift, each shift being 12 hours. He added that, when testing alarms, he might be exposed to as many as 100 or more alarms per shift. He stated that he was exposed to the noise of each alarm for between “30 seconds and 2 minutes while [he] check[ed] the location of the alarm, see if anything need[ed] to be done and turn it off, for a total exposure of up to 2 hours per day.” The personal duress alarm can take up to 10 minutes to deactivate. He further added that it is often necessary to raise his voice to be properly heard when the alarms were activated.
Mr Cunningham further states that he has worked in noisy employment in the hospital/security industry for many years. During his employment with Parramatta Council, between 1990 and 1998, he was exposed to plant machinery, chain saws, and lawn mowers. He was also exposed to noise, in his employment with the Department of Main Roads, from 1971 to 1990. During that employment he was exposed to the noise of “steel cutting, metal impacts, metalwork, machinery, jackhammers, rust removal machinery, sandblasting, hammering and grinding.”
In evidence is an email from the respondent’s WHS Manager – Staff Occupational Health, dated 22 September 2016. That email contains a table regarding a visit to assess noise levels in the respondent’s security office. In respect of possible noise hazards, the table records:
“Duress Alarm- 10 per shift of 10-15 secs duration (measured at 74 DB)
Fire Alarm- 0- to max of 3-4 per shift of approx.. 15 sec duration ( not assessed)
Pager- one pager per hour ( measured at 83 dB)”The table also records that approximately 12 years ago there “was an introduction of monitors and duress alarms”. It is also recorded that the noise of the duress alarm can be adjusted on the computer with the highest setting measured at 81 dB. It is further recorded that alarms are switched off immediately and the security team leader investigates.
In evidence is a statement from Malcolm Duguid, a security officer of the respondent, dated 19 December 2016. Mr Dugid stated that on average there were seven helicopter landings at the Sydney University Oval. He confirmed that there was no ear or eye protection. He also confirmed that his duties extended beyond the control room to attending onsite and offsite alarms. He does not state the frequency or time of those attendances.
In evidence is a statement from Hany Faltas, dated 12 January 2017. He is the respondent’s security lead hand. He was responsible for leading and managing the other security officers and the safety and protection of all staff, patients and visitors at the hospital. This included the oversight of the alarm systems.
Mr Faltas said:
“The noise sources in the security office are signals built onto the control system that trigger a response to the duress alert and fire detection systems. A pager also sounds every time a duress signal activates.
The sounder for the signals are located on the far side of the desk and the volume of the duress signal can be controlled by the security officer. The pager can be muted and also set to vibrate.”
Mr Faltas said that the duress alert system is tested at two-weekly intervals; being a total of 180 tests conducted over two to three shifts. Each test lasts “between 1 to 10 seconds before the alarm is switched off at a click of a button by the security officer”. The fire system is tested one day a fortnight. That is, 150 tests are conducted by fire alarm technicians, not security officers, “over that shift over a 6 to 7 hour period”. The fire signal is activated for each test and can be heard in the security room.
Mr Faltas also said that on average, the duress alarm sounds about 10 times per shift lasting between one and 10 seconds, the fire alarm sounds between zero to up to four times per shift lasting between five and 20 seconds, and the pagers sound once per hour lasting between five to 10 seconds. At most, “between 10 and 15 alarms will go off per shift” and at most will take 20 seconds to switch off. While these alarms are activated, Mr Faltas said he does not need to raise his voice to converse with someone standing a metre away in the security office.
Mr Faltas further said that it is not normal practice for leading hands to attend plant rooms and other buildings to switch off alarms and that he had personally done so only about 30 times per year. During those occasions he was exposed to the alarms for approximately 10 seconds.
Mr Faltas said that in 2006 helicopter landings on the Sydney University oval ceased. He conceded that he did not attend these landings but if he did he would stand approximately 100 metres away from the helicopter in the security car and that the landings would last between 30 seconds and one minute.
HIBBS & ASSOCIATES PTY LTD
In evidence is an occupational noise assessment of the hospital, dated October 2016, conducted by T Dudman and R Patel of Hibbs & Associates Pty Ltd on behalf of the respondent. It recorded that the Security Control System produced alert signals in response to the activation of a duress alarm or a fire alarm. A pager sounds when the duress signal activates. The sounder for the signals is located on the far side of the desk. The volume of the duress signal can be controlled by the security officer and the pager can be muted and set to vibrate. The alarm system is tested by a security officer at two-weekly intervals, a total of 180 tests over two to three shifts.
The results of the occupational noise exposure assessment indicated that the noise exposure standard of 85 dBA over an eight hour shift or a peak of 140 dBC was highly unlikely to be exceeded for workers in the security office “for the equipment set up and work activities observed at the time of assessment”. It also found that noise from alert signals of the Security Control System to be highly unlikely to cause hearing damage. It did not recommend hearing protection signage and/or earplugs or earmuffs.
On 17 January 2017, Hibbs & Associates Pty Ltd issued a further report to the respondent commenting on exposure to noise outside the security office. The report noted that, in the absence of measured noise level data and relying upon data sheets published by the manufacturers of alarm sounders, the noise level was between 105 and 120 dB(A) at one metre for an electric sounder and up to 95 dB(A) at one metre for a motorised fire bell. Having regard to published research, the loudest operating air ambulance in 2012 generated maximum noise levels of around 87 to 96 dB at 100 m during take-off and landing.
Hibbs & Associates confirmed its opinion contained in the 13 October 2016 report. The available information describing attendance to alarms in other areas of the hospital was not sufficient to determine the likelihood of exceeding the occupational noise exposure standard due to those difficulties.
DR SCOPPA
In his report dated 28 July 2016, Dr Scoppa took a history of “[o]ccupational exposure to loud industrial noise for many years.” In respect of Mr Cunningham’s employment with the respondent, Dr Scoppa recorded that Mr Cunningham oversaw the monitoring of alarms, such as fire and duress alarms, throughout the hospital from a control room. Once the alarm was detected as set off he would locate the source and attend to turn it off. On average “from 40 to 60 alarms went off each day” and he was exposed to the alarm between one and two minutes before being able to turn it off. The daily noise exposure from alarm noise “could be as long as 2 hours a day.”
Dr Scoppa recorded that Mr Cunningham was not provided with ear protection and that most alarms emitted a sound level of about 100dB or louder, being capable of causing noise induced hearing loss.
Dr Scoppa also recorded a history of Mr Cunningham having been exposed to loud noise consistent with the noise level being well above 90dBA from his previous employment with Parramatta Council as a plant operator for about eight years and before then with the Department of Main Roads. This required him to raise his voice and often shout in order to communicate with a person standing about a metre away. In his employment with Parramatta Council Mr Cunningham was exposed to loud noise from plant machinery such as tractors, ride-on mowers, whipper snippers, and chain saws. In his employment with the Department of Main Roads he was exposed to loud noise from metal impact, cutting of steel, metalwork and machinery, jackhammers, rust removal machinery, sandblasting, hammering and grinding.
Dr Scoppa conducted a pure tone audiological test. He made the following findings: total binaural hearing impairment of: 37.7 per cent; 26.4 per cent due to industrial deafness; 24.4 per cent due to industrial deafness less two per cent for presbycusis correction. Applying the WorkCover Guides, table 9.1, Dr Scoppa found Mr Cunningham’s 24.4 per cent binaural hearing impairment converted to 12 per cent whole person impairment.
From the description of Mr Cunningham’s employment history, Dr Scoppa found the respondent to be the last noisy employer. He opined that the tendencies, incidents, and/or characteristics of Mr Cunningham’s employment with the respondent would give rise to a real risk of industrial deafness, or deafness of a similar origin. He further found Mr Cunningham’s employment with the respondent to be a substantial contributing factor to the development of his industrial deafness. He added that bilateral digital hearings aids were reasonably necessary for the rehabilitation of the noise induced hearing loss.
Dr Scoppa issued a supplementary report dated 10 December 2016, commenting on whether the sole issue is noisy employment with the respondent. Dr Scoppa referred to several factors capable of causing industrial deafness, including:
“(a) the type of noise (whether impact of steady state etc)
(b) the frequency characteristics of the noise
(c) the intensity or sound level of the noise
(d) the duration of noise exposure throughout a working day
(e) the individual susceptibility of the worker to developing industrial deafness”
In that report Dr Scoppa conceded that he knows of no objective method to determine Mr Cunningham’s past noise levels. However, from a clinical perspective, he recorded that an environment in which a person has to raise his or her voice to be heard by a person standing one metre away is consistent with a sound level of 85 dBA and capable of causing industrial deafness over an eight hour period. For every three decibel increase in sound level, the exposure period halves. He added that 15 minutes of exposure to 100dB over an eight hour day is sufficient to cause industrial deafness.
Dr Scoppa recorded:
“I obtained the impression from Mr Cunningham that his daily occupational noise exposure varied depending on how much time he spent in the control room, and how much time he spent at various locations within the hospital and on associated nearby sites attending to alarm callouts. My reference above to 2 hours exposure to alarm noise referred to the impression that I was given that on a worst case scenario he was exposed to the alarm source (i.e. away from the control room) for up to 2 hours per day.”
Having regard to the history he obtained, Dr Scoppa found Mr Cunningham’s exposure to noise in the respondent’s employment would be above 100 dB, which would be “capable of causing industrial deafness after 15 minutes of exposure per 8 hour working day, and less if the daily shift was greater than 8 hours.” Dr Scoppa added that it is well known that many alarms as described by Mr Cunningham are known to emit sound levels exceeding 110 dB and have been reported as causing permanent hearing loss after exposure for only a few minutes. The reporting of onset of ringing tinnitus is consistent with the occurrence of temporary threshold shift as a result of loud noise exposure and capable of causing industrial deafness.
Dr Scoppa found Hibbs and Associates assessment report to be unreliable measure of Mr Cunningham’s occupational noise exposure at the respondent. This was because:
“…it only addressed the noise levels within the control room and makes no reference to the other much noisier sources of noise away from the control room as documented on page 2 of his Supplementary Statement Number 2, and in my report.”
Dr Scoppa added:
“Given the nature of the noise exposure away from the control room as described and the reporting of probable temporary threshold shift, I would confirm my opinion that the tendencies, incidents, and/or characteristics of Mr Cunningham’s employment with [the respondent] would, on balance of probabilities, give rise to a real risk of boilermakers’ deafness, or deafness of a similar origin.”
THE SENIOR ARBITRATOR’S FINDINGS AND REASONS
The Senior Arbitrator noted that there was no dispute that Mr Cunningham suffers from noise induced hearing loss. She noted Dr Scoppa’s evidence that Mr Cunningham’s previous employment as a plant operator at Parramatta City Council and the Department of Main Roads was likely to have exposed him to noise levels of well above 90 dBA. Dr Scoppa’s opinion is founded on two matters that he described as “well known”. Namely, that most alarms emit a sound level of 100 dBA or louder and that if a worker has to raise his voice to be heard by someone a metre away that would constitute an environment consistent with a sound level of more than 85 dBA. The Senior Arbitrator noted that whilst Mr Cunningham said that this was so, the evidence of Mr Faltas and the respondent’s acoustic expert was that this was not the case.
In his second report, Dr Scoppa concluded that the hospital’s noise assessment was unreliable because it only addressed noise in the control room and made no reference to other “much noisier sources of noise”.
The Senior Arbitrator stated (at [39]):
“In making that statement, Dr Scoppa has accepted the results of the testing in the control room were correct and that the environment was not such as to give rise to a risk of noise induced hearing loss. There is no evidence from Dr Scoppa with respect to the noise in the previous control rooms and therefore no expert evidence that that noise in those rooms was such as to give rise to a real risk of noise induced hearing loss.”
Dr Scoppa identified the potentially unsafe daily noise exposure dose at 100 dBA is 15 minutes per shift.
Mr Cunningham said he was exposed to the noise of 40–60 alarms per shift. In the context of his statement, that was the number of the alarms in the control room. He also attended to alarms on site, in the plant room and off site. He said that “some of” those alarms caused ringing in his ears as did the noise from helicopter landings.
Mr Cunningham provided a brief description of the helicopter landings and Dr Scoppa did not deal with it, therefore the Senior Arbitrator concluded there was no expert evidence to permit her to draw the conclusion that the noise of those landings was likely to give rise to a real risk of hearing loss.
The Senior Arbitrator accepted the respondent’s submission that the history obtained by Dr Scoppa fails to distinguish between the noise of an alarm going off and the signal of an alarm. Based on Mr Faltas’ evidence and the noise assessment, the number of alarms Mr Cunningham was exposed to was far fewer than he asserted.
Dr Scoppa’s opinion was based on a worst case exposure to alarms outside the security office of up to two hours a day. That was Mr Cunningham’s evidence. However, Mr Cunningham did not provide evidence as to the amount of time he might spend attending to those alarms outside the control room. There is no evidence that Mr Cunningham was exposed to noise above 100 dBA for 15 minutes per shift.
The Senior Arbitrator found (at [45]) that Mr Cunningham’s evidence did not provide a satisfactory basis for the assumptions on which Dr Scoppa based his opinion, particularly when compared to the statement of Mr Faltas and the respondent’s noise survey.
The Senior Arbitrator concluded that she could not be satisfied that the respondent employs Mr Cunningham in an employment which has the tendency, incidents or characteristics which give rise to a real risk of suffering noise induced hearing loss.
DISPOSITION OF THE APPEAL
This being an appeal under s 352 of the 1998 Act, the appeal is limited to the identification of “error of fact, law or discretion, and the correction of any such error” (s 352(5)).
The Commission’s Practice Direction No 6 deals with appeals against a decision of the Commission constituted by an Arbitrator. The Practice Direction requires that an application must, among other things, include full details of the arguments in support of the appeal. The Practice Direction requires:
“All submissions must deal clearly and succinctly with each ground of appeal and include relevant page references to the evidence and transcript. Full and correct names, citations and page or paragraph references for any judicial authorities must also be provided.
It is not acceptable to merely allege that the Arbitrator erred in fact, law or discretion. Submissions must clearly and succinctly identify the alleged error, how that error has affected the outcome, and why the outcome should be different.”
Mr Cunningham’s notice of appeal does not comply with Practice Direction No 6. No grounds of appeal have been separately stated and supported by relevant submissions. Rather, Mr Cunningham has merely identified a series of alleged errors of fact and law.
Practitioners are again reminded that an appeal against a decision of an Arbitrator must be fully compliant with Practice Direction 6.
LEGISLATION
Section 17 of the 1987 Act provides:
“17 Loss of hearing-special provisions
(cf former s 7 (4B), (4BB))
(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect:
(a)for the purposes of this Act, the injury shall be deemed to have happened:
(i)where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due-at the time when the notice was given, or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury-on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b)the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(c)compensation is payable by:
(i)where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury-that employer, or
(ii)where the worker was not so employed-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 the notice,
(d)an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,
(e)in paragraph (d), the
‘relevant period’ means:(i)where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing)-in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,
(ii)where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury-in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and
(iii)where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury-in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,
(f)where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c), the Commission may direct the Nominal Insurer to pay to that employer out of the Insurance Fund such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Nominal Insurer is to pay out that amount accordingly as if it were a payment made in respect of a claim under Division 6 of Part 4,
(g)where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.
(2) Without limiting the generality of subsection (1), the condition known as “boilermaker’s deafness” and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.
(3) Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”
ALLEGED ERROR OF LAW
Did the Senior Arbitrator err by having regard to the antecedent employment? (ground four)
Mr Cunningham submits that the Senior Arbitrator erred by giving any weight to the fact that Mr Cunningham’s employment with Parramatta City Council was likely to have exposed him to noise well above 90 dBA. Such a consideration was irrelevant, so it is submitted, to the question of whether Mr Cunningham’s employment with the respondent was of a nature to which Mr Cunningham’s industrial deafness might be due.
In Mr Cunningham’s submission to succeed all that he needed to establish was that his employment was noisy, sufficient to cause industrial deafness and not that it in fact did. The Senior Arbitrator’s reference to the prior employment and to the extent that it appears possibly to have influenced her decision was an error of law.
The Senior Arbitrator made reference to Mr Cunningham’s prior employment at [35] of the reasons. She said:
“There is no dispute that Mr Cunningham suffers noise induced hearing loss. Dr Scoppa said that his previous employment as a plant operator with Parramatta City Council and the Department of Main Roads was likely to have exposed him to noise levels of well above 90dBA.”
There was no dispute that Mr Cunningham suffered from noise induced hearing loss. The Senior Arbitrator did nothing more than to note a concession that Mr Cunningham’s antecedent employment was likely to have exposed him to noise levels well above 90 dBA. I have not been taken to, nor can I discern from the Senior Arbitrator’s reasons, anything to establish that the notation of such a concession “possibly influenced her decision”.
Mr Cunningham’s submission is somewhat disingenuous given the concession his counsel made during the arbitration proceeding (T11.20) where he said:
“Ultimately I'll show you that Dr Scoppa - and I accept what my friend said, there's no dispute that Mr Cunningham has a significant issue with respect to industrial deafness and there are parts of his history which would suggest a cause of that. That is, the employment he'd had previously in heavy industry and with Parramatta City Council which would explain why he does have industrial deafness.”
Given the frank concession made by Mr Cunningham’s counsel it was appropriate, indeed incumbent, upon the Senior Arbitrator to record her views about Mr Cunningham’s former employment with Parramatta City Council. In any event, it did not affect her ultimate finding.
For these reasons, I am not satisfied that the Senior Arbitrator erred at law.
ALLEGED ERRORS OF FACT
I intend to approach the alleged errors of fact with the following principles in mind.
In Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 Roche DP, dealing with the identification of ‘error’ pursuant to s 352 of the 1998 Act, referred to and applied Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Muir) and Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227 (Zuvela), saying at [19]:
“An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.”
The Senior Arbitrator erred in failing to consider the effect of exposure to 85 dBA over an eight hour period (ground three)
Mr Cunningham submits that the Senior Arbitrator failed to give proper weight to Dr Scoppa’s evidence that a sound level of 85 dBA over an eight hour period is prima facie evidence of a work environment that is potentially hazardous to hearing. Further Mr Cunningham submits that the Senior Arbitrator failed to have regard to Dr Scoppa’s evidence that for every three decibel increase in the sound exposure, the time is halved in order not to exceed a potentially unsafe daily dose. Further it is submitted that Dr Scoppa’s evidence establishes that exposure to a noise level of 103 dBA is likely to cause damage after 7.5 minutes of exposure.
Mr Cunningham submits that the evidence of Mr Faltas “of itself” would tend to establish that attendances on fire alarms up to four times a day lasting for up to 20 seconds on each occasion would be sufficient to establish that the employment had the tendency, incidents and characteristics such as to cause industrial deafness. Not to consider this evidence and its implications was, so Mr Cunningham submits, an error.
I do not accept Mr Cunningham’s submissions. In Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (Dawson) it was held (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.”
The reference in Dawson to the “tendency, incidents or characteristics” of the employment is a reference to the Court of Appeal decision in Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley). Lobley has long been accepted as authority for the proposition that in a claim for industrial deafness, a worker must prove, by way of accepted evidence of the nature and extent of exposure to noise, that the “tendency, incidents or characteristics” of his or her employment were such as to give rise to a real risk of industrial deafness.
I accept the respondent’s submission that with respect to exposure to noise from external alarms, Dr Scoppa’s opinion was confined to broad ranging assertions on generic matters. As Dr Scoppa noted, on page four of his report of 10 December 2016, with reference to Mr Cunningham’s supplementary statement:
“he makes no reference in this statement to the noise levels emitted during these duties away from the control room, however the history that I obtained and recorded above would be consistent with the noise levels being more than 100 dBA.”
Dr Scoppa’s reference to the history he obtained is a reference to Mr Cunningham’s statement of 8 December 2016 where he said:
“My duties also involve work outside the control room. I also attended to alarms that occurred on site, in plant rooms and off site. I could feel my ears ringing form the noise level of some of the alarms, including the alarms at the old school of nursing, clinical education, Queen Mary, animal house, stores Alexandria and other buildings on site. For about four years my duties also included attending helicopter landings over in the Sydney University oval during which I was not provided with hearing protection.”
As Dr Scoppa pointed out in his report, in order for an accurate assessment of noise exposure in accordance with the relevant WorkCover and WorkSafe code of practice, the following matters would be relevant to an assessment of occupational noise exposure:
“(ii) A noise assessment should be done during a typical working shift and should determine:
(a)the noise levels produced during various tasks carried out during the shift
(b)how long your workers are exposed to noise during each of these tasks.
(iii) An assessment should take into account:
(a)plant, equipment and other sources of noise in operation at the workplace
(b)how work activities are carried out
(c)the length of the shift
(d)environmental factors (eg types of walls, surfaces, layout of work stations).
8. Whether all the noise sources that may be operating at the time were taken into account
9. Whether there were any significant noise sources that were not operating during the assessment.”
The evidence presented by Mr Cunningham fell well short of those requirements for an accurate assessment of the level of noise exposure to be undertaken. Apart from the evidence of exposure in the control room, which Dr Scoppa, at least impliedly, accepted was unlikely to give rise to hearing loss, Mr Cunningham’s evidence was in the most general terms certainly inadequate for an expert to conclude reliably that exposure to noise outside the control room was of a sufficient level and frequency to give rise to industrial deafness.
When asked to comment on the Hibbs & Associate survey Dr Scoppa concluded that it was unreliable only because it failed to measure exposure to noise external to the control room. Dr Scoppa did not challenge the survey findings in so far as they related to noise exposure within the control room (see [42] and [43] above). It is therefore reasonable to infer that he accepted the finding of exposure within the control room to be within acceptable limits and unlikely to give rise to industrial deafness.
It follows that this ground of appeal fails.
Did the Senior Arbitrator fail to have regard to attendance on external alarms? (ground seven)
Mr Cunningham submits that, the Senior Arbitrator’s finding (at [43]) fails to take into account his evidence that he attended old fire alarms outside the security office and that those alarms caused him to experience ringing in his ears. Mr Cunningham submits that Mr Cunningham’s evidence was supported by the history obtained by Dr Scoppa of exposure of up to two hours to external alarm noise.
Although the respondent conceded that the noise emitted by external alarms was likely to be in the order of 100 dBA, the Senior Arbitrator did not accept, for the reasons already identified, that Mr Cunningham was exposed to the noise of external alarms for up to two hours a day.
I accept the respondent’s submission that, Mr Cunningham was required to satisfy a more rigorous test than to simply assert that he was attending to noisy alarms. It further submits that Mr Cunningham failed to introduce evidence of the kind discussed in Dawson. As previously discussed, I accept that submission. It was open to the Senior Arbitrator to find that the evidence presented was insufficient and that Mr Cunningham did not discharge his onus of proof. It follows that this alleged error is not made out.
Failure to have regard to exposure to noise above 100 dBA for 15 minutes per shift (ground eight)
Mr Cunningham submits that the Senior Arbitrator erred (at [44]) by finding:
“There is no evidence that Mr Cunningham was exposed to noise above 100dBA for 15 minutes per shift.”
Mr Cunningham also submits that the evidence establishes that he was exposed to noise exposure from old fire alarms which left him with ringing in the ears. He submits that the “inevitable conclusion” was that irrespective of the exposure period and whatever the level of noise, it was sufficient in Dr Scoppa’s view to cause industrial deafness. Mr Cunningham submits that such exposure was sufficient to cause a “temporary threshold shift” which “can lead to a permanent threshold shift that is industrial deafness”.
Further, Mr Cunningham submits:
“Therefore whilst the evidence may not with precision establish that the Applicant was exposed 15 minutes above 100 dBA this precise measure is irrelevant because the exposure it did establish time of exposure in that the exposure period to the level of noise from the old fire alarms was sufficient to cause tinnitus and provide unchallenged evidence of exposure to noise of a level sufficient to lead to the development of industrial deafness.”
I reject Mr Cunningham’s submission that liability for compensation arising under s 17 is established where there is evidence of a worker suffering a sensation of ringing in the ears irrespective of evidence of the exposure period or level of noise. The submission is directly contrary to accepted authority: Dawson and Lobley. Ringing in the ear may be a relevant factor to consider, however, it is not determinative of whether the employment has the tendencies, incidents or characteristics to give rise to a real risk of industrial deafness.
It follows that this ground of appeal fails.
Did the Senior Arbitrator err by inferring that exposure to noise of 100 dBA for 15 minutes was the test to be applied? (ground nine)
Mr Cunningham submits that the following evidence was sufficient for him to succeed in his application. Firstly, that he was exposed to old fire alarms. Secondly, that the evidence established that such alarms can give rise to noise of 100 dBA. Thirdly, exposure to noise of 112 dBA or more for less than one minute in an eight hour day is sufficient to cause industrial deafness.
This submission in substance repeats Mr Cunningham’s earlier submissions. It is rejected for the reasons identified above. In addition, there is absolutely no evidence that Mr Cunningham was ever exposed to noise levels exceeding 112 dBA. The respondent conceded that exposure to noise above 100 dBA can give rise to industrial deafness. However, for the reasons discussed, Mr Cunningham failed to prove that he was exposed to such noise for a period of time sufficient to give rise to a real risk of suffering industrial deafness. It follows that this ground fails.
DR SCOPPA’S EVIDENCE
Was the history Dr Scoppa relied on correct? (ground five)
Mr Cunningham submits that the following finding of the Senior Arbitrator (at [43]) involves an error of fact:
“Dr Scoppa set out the history obtained from Mr Cunningham and I accept Mr Morgan’s submission that the history obtained fails to distinguish between the noise of an alarm going off and the signal of an alarm. Based on Mr Faltas’ statement and the noise assessment, the number of alarms was far lower.”
Mr Cunningham submits that the finding refers to the noise assessment study which was confined to recent testing in the security office alone and therefore has no bearing upon the acceptance or otherwise of the history provided to Dr Scoppa in relation to exposure to noise.
The respondent submits that the alleged error appears to repeat the error submitted in the first alleged error of fact and relies on its submissions accordingly.
I reject Mr Cunningham’s submission. The history upon which Dr Scoppa relied is set out at the foot of page three of his report of 10 December 2016. He relied on a history that Mr Cunningham was exposed on average to 40-60 alarms per day. On average the exposure lasted between one and two minutes before the alarms were switched off. The daily occupational noise exposure from alarm noise varied from day to day but could last as long as two hours per day. That history does not differentiate between noise exposure to off-site alarms and the exposure to the signal alarms within the control room. The Senior Arbitrator’s factual finding was entirely accurate. No error is established.
Did the Senior Arbitrator fail to properly consider or give proper weight to Dr Scoppa’s evidence? (ground one)
Mr Cunningham submits that he attended upon old fire alarms from time to time and on occasions when doing so felt ringing in his ears. Dr Scoppa diagnosed this as ringing tinnitus consistent with a temporary threshold shift and with noise exposure capable of causing industrial deafness. Mr Cunningham submits that the Senior Arbitrator failed to properly consider or give proper weight to his evidence and Dr Scoppa’s evidence which was “a clear error of fact”. He submits the correction of such error would lead to the worker establishing that his employment with the respondent had the “tendency, incidents or characteristics” such as to give rise to a real risk of causing industrial deafness and thus establishing it to be employment of a nature to which the injury was due (s 17(1)(a)(i) and (c)(i); Dawson).
As the respondent submits, there is an important distinction in the evidence between internal alarms (the signals internal to the control room) and external alarms (the alarms external to the control room). Dr Scoppa’s critical assumption was that Mr Cunningham was in regular attendance at the source of the external alarms and that that was a central part of his duties.
The Senior Arbitrator found (at [44]) that Dr Scoppa’s opinion was based on a worst case exposure of alarms outside the security office of up to two hours a day. Mr Cunningham’s evidence in his second statement was that he may be exposed to the noise of alarms in the security office for up to two hours per day. He did not, however, provide evidence as to the amount of time spent attending to alarms outside of the control room. Nor was there any evidence as to the frequency or intensity of such exposure. The Senior Arbitrator accepted the evidence of Mr Faltas established, contrary to Mr Cunningham’s evidence, that the exposure outside of the control room was limited to 10–15 alarms lasting for up to 20 seconds each per shift. Given Mr Faltas’ more detailed evidence concerning the extent of exposure to alarms outside the control room, it was open to the Senior Arbitrator to prefer his evidence as to the extent of exposure to noise outside the control room.
Dr Scoppa assumed, wrongly, that Mr Cunningham was exposed to an average of 40-60 external alarms per day and that his exposure to the noise from alarms could be as long as two hours per day. The expert evidence from Hibbs and Associates, which the Senior Arbitrator also accepted, concluded that noise exposure in the control room was highly unlikely to cause industrial deafness, an assessment which Dr Scoppa at least impliedly accepted (see [76] above).
The extent of the correlation, between proven facts and the assumptions on which medical opinion is based, goes to the weight to be afforded to the opinion: Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 at [19], Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 at [82]-[83], Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509B-510B. As there was little or no correlation between the facts proven and the assumptions upon which Dr Scoppa’s opinion was based, the Senior Arbitrator was correct to conclude (at [45]) that it did not provide a satisfactory basis for the acceptance of his opinion.
For these reasons this ground fails.
The evidence of ringing in the ears (ground 11)
Mr Cunningham submits that his evidence of suffering from a sensation of ringing in the ears on exposure to the noise of fire alarms was of itself sufficient to establish that his employment was of a type to the nature of which his deafness was due. It is submitted that this in itself is all that was needed to succeed when coupled with the evidence of Dr Scoppa.
This submission was dealt with in ground eight. As I have stated, I do not accept this submission. It is contrary to accepted authority for the reasons that have already been explained. The mere existence of ringing in the ears is not sufficient evidence to discharge the Dawson test. Much more is required as is discussed in response to ground seven above. The evidence of ringing in the ears in the absence of the nature (volume and extent), duration of the noise exposure and the absence of expert opinion concerning the tendency, incidents or characteristics of the employment such as to give rise to a real risk of industrial deafness was fatal to Mr Cunningham’s application.
I reject the submission that ringing in the ears leads to an “inevitable conclusion” that exposure to old fire alarms was the cause of Mr Cunningham’s deafness. Dr Scoppa’s evidence with respect to “ringing tinnitus” went no further than to state that repeated ringing in the ears (or temporary threshold shift) can “serve as a warning sign of impending permanent NIHL [Noise-Induced Hearing Loss]”. Dr Scoppa did not state that evidence of ringing in the ears inevitably led to the conclusion that exposure to old fire alarms caused Mr Cunningham’s hearing loss.
It follows that this ground fails.
Did the Senior Arbitrator fail to consider or give proper weight to Dr Scoppa’s evidence concerning the effect of exposure to external alarms? (ground two)
Mr Cunningham submits that the Senior Arbitrator erred by failing to give proper weight to Dr Scoppa’s evidence that most alarms emit a sound level of 100 dBA or louder which was sufficient to induce industrial deafness. Dr Scoppa’s evidence together with Mr Cunningham’s evidence of ringing in the ears after exposure from time to time to such alarms was consistent with the employment being of such a nature as to give rise to industrial deafness.
The respondent conceded that regular exposure to alarms of the type described by Dr Scoppa, that is, with levels in the order of 100 dBA for more than 15 minutes per shift, was likely to cause relevant damage. However, the Senior Arbitrator found (at [44]) that there was no evidence that Mr Cunningham was exposed to noise levels above 100 dBA for more than 15 minutes per shift. That finding was correct. It was therefore open to the Senior Arbitrator to conclude that, the assumptions upon which Dr Scoppa’s opinion was based had not been made out and therefore little weight could be given to his evidence at least in so far as it concerned exposure to noise outside of the control room.
For these reasons, and for the reasons referred to above, I reject the submission that the Senior Arbitrator either failed to consider or give proper weight to Dr Scoppa’s evidence
MR FALTAS’ EVIDENCE
Did the Senior Arbitrator err in accepting Mr Faltas’ evidence? (ground six)
Mr Cunningham submits that the Senior Arbitrator erred by basing her decision on the evidence of Mr Faltas. He submits that Mr Faltas was a leading hand who did not normally attend other buildings to switch off alarms, but when he did so he was exposed to noise from alarms on between 5 and 10 occasions per shift. Further, it is submitted that Mr Faltas did not seek to directly contradict Mr Cunningham’s evidence or challenge the accuracy of his account. Accordingly, it is submitted that, the Senior Arbitrator erred by relying on Mr Faltas’ evidence as a reason for not accepting the history given to Dr Scoppa.
As the respondent submits, the Senior Arbitrator (at [43]) refers to the failure on the part of Mr Cunningham to establish the relevant distinction between noise exposure to signals in the control room (the signals) and the noise emanating from exposure to alarms, external to the control room (the alarms).
The respondent submits, that the Senior Arbitrator properly found that Mr Cunningham had not discharged the relevant evidentiary onus because Mr Cunningham’s evidence was that he worked “primarily in the control room”, whereas Mr Faltas’ evidence went to the question of the frequency of attending upon external alarms.
It is disingenuous of Mr Cunningham to submit that he was not challenged either by way of cross-examination or other evidence regarding exposure to noise external to the control room. It was directly challenged by the evidence of Mr Faltas. As I have said, Mr Cunningham’s evidence of noise exposure external to the control room was extremely scant. When he had the opportunity to expand upon it in his statement of 8 December 2016, he merely said, as I have referred to at [73] above, that he:
“also attended to alarms that occurred on site, in the plant rooms and off site.”
Mr Cunningham described the ringing in his ears and identified the locations where he may be exposed to such noise. However, he failed to present any evidence of the extent of his exposure at such locations.
As the Senior Arbitrator correctly found (at [44]) Mr Cunningham made no attempt to introduce evidence of the kind referred to in Dawson. Mr Cunningham’s submissions merely assert that his evidence should have been preferred to Mr Faltas.
I do not accept Mr Cunningham’s submission that the evidence of Mr Faltas would be sufficient, of itself, to establish that the employment had the tendency, incidents or characteristics such as to cause industrial deafness.
It has not been established that other probabilities so outweigh that chosen by the Senior Arbitrator that it can be said that her conclusion was wrong (Muir and Zuvela). On the contrary, given the paucity of evidence from Mr Cunningham on the extent of exposure to noise emanating from external alarms compared with Mr Faltas’ detailed evidence on that issue, the weight the Senior Arbitrator gave to Mr Faltas’ evidence was entirely appropriate. It follows that there is no basis to interfere with the Senior Arbitrator’s finding with respect to Mr Flatas’ evidence. Accordingly this ground also fails.
The challenge to Mr Cunningham’s evidence (ground ten)
Mr Cunningham challenges the Senior Arbitrator’s finding (at [45]) where she said:
“Mr Cunningham’s evidence was challenged. It does not provide a satisfactory basis for the assumptions on which Dr Scoppa based his opinion, particularly when compared to the statement of Mr Faltas and the [respondent]’s noise survey.”
Mr Cunningham alleges that the Senior Arbitrator’s finding constituted an error of fact for the following reasons:
(a) Mr Cunningham’s evidence was not challenged. He was not cross-examined and no evidence was called by the respondent to contradict any of the evidence provided by Dr Scoppa;
(b) it was conceded that Mr Cunningham suffers from industrial deafness;
(c) the evidence established that Mr Cunningham was exposed to noisy fire alarms from time to time. The evidence was that the level of noise exposure when attending the fire alarms was likely to be 100 dBA or more;
(d) the increasing noise levels exponentially increased the risk of industrial deafness;
(e) there was no challenge to Mr Cunningham’s evidence that he suffered ringing in the ears on exposure to some alarms;
(f) Dr Scoppa was not challenged in regard to his evidence of the effect of ringing in the ears and the connection of such a phenomenon with industrial deafness;
(g) Mr Faltas’ evidence did not challenge Mr Cunningham’s evidence. He had a different job being a leading hand and did not normally attend to fire alarms. He did not say that Mr Cunningham did not attend to fire alarms or that in a given day exposure might be up to two hours on such occasions. It is submitted that Mr Faltas’ evidence is “to a degree” supportive of Mr Cunningham’s history, and
(h) the respondent’s noise survey has no bearing at all on Mr Cunningham’s evidence as to the level of noise to which he was exposed away from the control room. Further it is submitted “it is difficult to see how the Arbitrator might see that the study would. In any event she did not give any explanation as to why she came to this conclusion”.
Mr Cunningham’s submissions fails to recognise the distinction correctly drawn by the Senior Arbitrator between the evidence of exposure to noise in the control room and exposure to noise at external sites. Mr Cunningham’s evidence as to the latter was challenged. As I have already indicated, his evidence in his supplementary statement made no attempt to identify the extent of the exposure that would be required in order to satisfy the evidentiary onus in terms of exposure to noise outside the control room.
Many, if not all, of the issues raised by Mr Cunningham have previously been considered and rejected. The inference that Mr Faltas’ evidence should be given little weight because he did a different job is rejected. Mr Faltas worked as a leading hand at the respondent and had worked there for some 17 years in the security office. He worked the same hours as security officers such as Mr Cunnigham. His duties included leading and managing the other security officers and a range of other tasks. His experience and his duties qualified him to provide reliable evidence as to the source and extent of exposure to industrial noise. His evidence directly contradicted Mr Cunningham’s evidence that he may be exposed to the noise of alarms on a given day of up to two hours. His evidence was not supportive of Mr Cunningham; indeed it was directly contrary to it.
The evidence did not establish that Mr Cunningham was exposed to a noise level of 100 dBA or more when attending the fire alarms. The evidence merely established that alarms of that kind are known to emit a noise level of 100 dBA. Mr Cunningham failed to establish how frequently he attended such alarms or the duration of exposure.
I agree that the respondent’s noise survey had no bearing on Mr Cunningham’s evidence of exposure to noise whilst away from the control room. As I have said, Dr Scoppa impliedly conceded that staff would not be exposed to a level of noise, in the control room, sufficient to cause industrial deafness.
It follows that this ground fails.
CONCLUSION
Whilst it was accepted that Mr Cunningham suffered a hearing impairment which was partly induced by exposure to industrial noise, he failed to satisfy the onus of proof that his employment with the respondent had the tendencies, incidents or characteristics such as to give rise to a real risk of industrial deafness.
DECISION
The Senior Arbitrator’s determination of 22 February 2017 is confirmed.
Judge Keating
President
30 June 2017
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