Dawson t/as The Real Cane Syndicate v Dawson
[2008] NSWWCCPD 35
•19 March 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Reported Decision: Dawson and Others t/as The Real Cane Syndicate v Dawson (2008) 7 DDCR 427
CITATION:Dawson and others t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35
APPELLANT: Arthur Allen Dawson, Brian Gordon Durrington, Frank Alwyn Durrington, Joyce Ann Habbard, Lindsay Roland Hibbard, Lorraine May Bartlett, Margaret Durrington, Ronald Roy Bartlett and William Macleay Hibbard t/as The Real Cane Syndicate
RESPONDENT: Kevin James Dawson
INSURER:Tower Insurance Ltd
FILE NUMBER: WCC7220-07
DATE OF ARBITRATOR’S DECISION: 7 December 2007
DATE OF APPEAL DECISION: 19 March 2008
SUBJECT MATTER OF DECISION: Boilermaker’s deafness; evidence required to establish “noisy employment” under section 17 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Dibbs Abbott Stillman
Respondent: Whitelaw McDonald
ORDERS MADE ON APPEAL: The Arbitrator’s determination of 7 December 2007 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
INTRODUCTION
This appeal concerns whether the worker’s duties as a cane harvester/operator between 1980 and 1985 were duties that constituted “noisy employment” within the meaning of the Workers Compensation Act 1987 (‘the 1987 Act’) and the kind of evidence that is required to establish that fact. All references in this decision to “noisy employment” are references to employment to the nature of which the condition of boilermaker’s deafness or deafness of like origin is due (section 17 of the 1987 Act).
BACKGROUND TO THE APPEAL
Kevin Dawson (‘the Respondent Worker’) is currently 70 years old. He worked for The Real Cane Syndicate (‘the Appellant Employer/RCS’) as a cane harvester/operator from 1980 until 1985. He also alleged that in the first half of 1986 he worked for J H Williams & Son Pty Ltd (‘Williams’) operating a ‘grass seed cutter’.
In an Application to Resolve a Dispute (‘the Application’) filed in the Commission on 24 September 2007, Mr Dawson claimed lump sum compensation in respect of 47.4% binaural hearing loss alleged to be due to his employment with either RCS or Williams, the First and Second Respondents respectively before the Arbitrator. Williams denied that Mr Dawson was a “worker” employed by it under the 1987 Act or, if he was, that it was a “noisy employer”. RCS denied that it was a noisy employer or, if it was, that it was the last noisy employer to employ Mr Dawson in employment to the nature of which his injury was due.
The parties were unable to resolve the dispute and the matter proceeded to arbitration on 30 November 2007. Counsel represented each party and made lengthy submissions, but the Arbitrator heard no oral evidence. In a reserved decision delivered on 7 December 2007, the Arbitrator made the following orders:
“1.Award for the Second Respondent JWH [Williams] against the Applicant in respect of there being no liability of the Second Respondent JWH for the claims made by the Applicant.
2.There is no Order as to costs with regard to the claims made by the Applicant against the Second Respondent JWH.
3.Award for the Applicant in respect of the claims made as to lump sums and section 60 medical expenses against the First Respondent RCS.
4.That pursuant to section 60 of the Act the First Respondent RCS is to meet the reasonable and necessary medical expenses of the Applicant upon production of accounts and / or receipts.
5.That the Applicant’s claim found in liability against the First Respondent RCS is to be referred under delegation by the Registrar to an Approved Medical Specialist in respect of industrial deafness for a deemed date of injury of November 1985 (and thus under the applicable Table as at that date) for assessment. There is no material from within the proceedings excluded from the material to go before the AMS.
6.The claim of the Applicant, found in liability against the First Respondent RCS for a lump sum under section 67, is reserved pending the outcome of the AMS referral.
7.The First Respondent RCS is to pay the Applicant’s costs as agreed or assessed in respect of the entirety of the proceedings. The proceedings, including as to costs, are not declared as complex.”
The Arbitrator found in favour of Williams on the basis that it never employed Mr Dawson (Statement of Reasons for Decision (‘Reasons’) at paragraph 50) and, in the alternative, that it was not the last noisy employer under the 1987 Act. He found that RCS was the last noisy employer to employ Mr Dawson in employment to the nature of which his injury was due.
By an appeal filed on 2 January 2008, RCS seeks leave to appeal the Arbitrator’s decision. Williams has not been joined to the appeal and neither party has suggested that it should be a party.
LEAVE TO APPEAL
Monetary Threshold
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’).
The quantum in issue on the appeal is in excess of $5,000.00 and there is no dispute that the thresholds in section 352 are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
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.”
The Appellant Employer argues that the appeal should not be determined on the papers due to complex issues of law that arise and that the Commission would be assisted by an oral hearing. The Respondent Worker has made no submissions on this question. Having regard to the written submissions filed by both sides, I do not believe that the issues raised on appeal will be advanced in an oral hearing.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, 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.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether there is sufficient evidence to support the Arbitrator’s finding that Mr Dawson’s employment with RCS was employment to the nature of which his injury was due.
REVIEW
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 Ltd 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.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘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.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [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]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
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, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
THE EVIDENCE
The basis of Mr Dawson’s claim is that between 1980 and 1985 he worked for RCS as a cane harvester/operator and that that work exposed him to noise from the following sources:
(a)the engine and exhaust of the cane harvester;
(b)blades and gatherers cutting crops;
(c)tractors;
(d)manual tools, and
(e)a pump.
Mr Dawson stated at paragraphs five, six and seven of his statement of 28 August 2007 that:
“5.The noise, whilst operating the cane harvester, was such that to require two workmen, if standing a metre apart, to shout to the other in order to be heard. In fact, if this method of communication were to be used, even shouting would not overcome the noise in the environment in which I was working.
6.I would often go home at the end of a work day with ringing in the ears. The ringing in the ears would tend to dissipate in the quiet of my home only to return to [sic] when [I was] exposed to further noise in the course of my employment.
7.I would also develop a dead or dull feeling in the ears during the course of the work day when exposed to noise only for this dead or dull feeling to dissipate in the quiet of the environment of my home and to return when exposed to further noise in the course of my work.”
His hours of work varied between 8 and 16 per day, depending on the urgency of the harvesting required. In addition to operating a cane harvester, Mr Dawson visited a sugar mill from time to time in the course of his employment where he stated he was exposed to “substantial noise” though not as great as when he operated the harvesting machines.
For several months in the first half of 1986 Mr Dawson worked for Williams operating a grass seed cutter. According to his evidence, this machine generated noise equivalent to a “normal car” which was “not substantial” in comparison to the noise with RCS (Mr Dawson’s statement 28 August 2007, paragraphs 10 and 11).
In support of his claim, Mr Dawson tendered reports from two ear, nose and throat specialists, Drs Fernandes and Macarthur. In his report of 27 June 2005, Dr Fernandes took a history that after working for himself as a cane loader, in which he was exposed to the noise of a tractor, Mr Dawson “was subject to machinery noise” when he worked for RCS from 1980 until 1985. He diagnosed Mr Dawson to be suffering from noise induced hearing loss due to “work related noise exposure”.
On 30 October 2007 Mr Dawson’s solicitors (Whitelaw McDonald) wrote to Dr Fernandes setting out the contents of Mr Dawson’s statement of 28 August 2007 and, on the basis that the contents of the statement were an accurate description of the noise to which Mr Dawson was exposed, requested his opinion as to whether Mr Dawson’s employment with RCS and/or Williams was employment to the nature of which the disease process of boilermaker’s deafness was due. In his response on 2 November 2007, Dr Fernandes stated:
“Further to your letter dated 30 October 2007 I wish to advise that the relevant last employer (with respect to noise induced hearing loss i.e. these employments have the necessary incidents, tendencies and characteristics so as to give rise to a real risk of a person suffering noise induced hearing loss there from) is Real Cane Syndicate.
The noise exposure at J H Williams & Sons Pty and Primac Merchandising does not appear to be significant and hence is unlikely to induce an industrial hearing impairment.
I hope this answers all the questions posed in the above letter.”
Dr Macarthur examined Mr Dawson at the request of the solicitors for RCS (Dibbs Abbott Stillman) on 22 October 2007. In his report of 2 November 2007, Dr Macarthur recorded a history of Mr Dawson’s noise exposure with RCS consistent with Mr Dawson’s statement (engine noise and exhausts of the cane harvester, the blades and gatherers cutting crops, tractors and various tools and pumps). He recorded that Mr Dawson worked at Williams in January/February 1986 for a total of nine days and in that time the noise to which he was exposed was not as loud as with RCS because the grass seed cutter only had a 30hp motor with a car exhaust system. Based on this history, Dr Macarthur concluded at page three of his report that “the Real Cane Harvesting Syndicate was the last noisy employer” and the employment with Williams over a very short period of time “would have contributed very little if any to his noise induced hearing loss”.
On 6 November 2007, Dibbs Abbott Stillman wrote to Dr Macarthur and asked him to assume that Mr Dawson worked for Williams/Primac “over a number of years up to and including 1987” which work was “carried out in seasonal tandem with his employment” with RCS and exposed Mr Dawson to noise from the grass seed cutter and his own tractor. The doctor was also advised that the legislation does not require that the last employment concerned has caused the hearing loss, but only that it is employment that “would have the propensity to cause a noise induced hearing loss.” The letter then added “In that event, it must inevitably follow that J H Williams/Primac was relevantly the applicant’s last noisy employer.”
Dr Macarthur replied to this letter by letter dated 6 November 2007, in which he said:
“1. HISTORY OF EMPLOYMENT
From the information you have now given to me there can be no doubt that Mr Dawson has given me an incorrect history with regard to his employment with J H Williams. I accept that Mr Dawson’s concurrent/seasonal employment with J H Williams and thereafter Primac commenced in or about 1983 and continued up to and including 1987.
2.LAST NOISY EMPLOYER
Now that the employment history of Mr Dawson has been clarified I wish to correct my conclusion with regard to Mr Dawson’s employment with J H Williams/Primac. In my opinion now his employment with these companies would have contributed to his noise induced hearing loss and therefore J H Williams/Primac is his last noisy employer. I believe his employment with these companies has been employment of a nature to which the disease Boilermaker’s deafness may be due. Such employment would have had the propensity to cause a noise induced hearing loss.”
SUBMISSIONS AND FINDINGS
The Appellant Employer submits:
(a)the Arbitrator incorrectly relied on Blayney Shire Council v Lobley & another (1995) 12 NSWCCR 52 (Lobley) for the proposition that it is only necessary for a worker to establish that the relevant employment had a tendency, incident or characteristic to cause industrial deafness. In that case, it was conceded that employment in an abattoir and timber mill was noisy and the issue before the Court of Appeal was whether the wearing of earmuffs prevented a finding of noisy employment;
(b)the Arbitrator erred by stating at paragraph 81 of his Reasons, contrary to the authority of Callaby v State Transit Authority (NSW) & another (2000) 21 NSWCCR 216 (Callaby), that it is not necessary for each noise related contention to be “backed” forensically or scientifically;
(c)it was not appropriate for the Arbitrator to merely rely on a series of assumptions or to carry out ex post facto reasoning to come to the conclusion that the relevant employment was noisy;
(d)the Arbitrator erred in stating at paragraph 81 that it was not necessary for there to be evidence of the specific noise level of, for example, the pump Mr Dawson referred to at paragraph four of his statement. There is no evidence regarding the noise levels emitted by the pump, where Mr Dawson worked in relation to it, for how long over his working day he was exposed to noise from it, or whether the pump operated all the time or only some of the time. In respect of the “manual tools” Mr Dawson used, there is no evidence of the nature of the tools, the noise level emitted by them, Mr Dawson’s proximity to them, nor the time over which he was exposed to them;
(e)there is no evidence of the noise level of the cane harvester or whether Mr Dawson operated it with the door open or closed. In the absence of such evidence the Arbitrator was merely speculating that the employment was noisy;
(f)a need for workers to shout to be heard does not provide an answer to the question of whether the employment was noisy;
(g)the Arbitrator wrongly relied on the evidence Mr Dawson gave in the Compensation Court of NSW in 1988 because in those proceedings Mr Dawson contended that any “trouble” with his hearing resulted from exposure to chemicals, not from exposure to noise. Further, the extent of his “troubles” was not defined;
(h)that Mr Dawson has hearing loss does not establish that his employment with RCS was noisy and the Arbitrator has wrongly moved from a conclusion to a cause;
(i)the Arbitrator could not rely on the ex post facto opinions of Drs Fernandes and Macarthur as their opinions were based on a series of unsubstantiated assumptions. That a worker has industrial deafness and was exposed to noise in the course of his or her employment does not establish that the employment was noisy;
(j)the Arbitrator has made a similar error to that made by the Arbitrator in Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181 (Rikaloski) in that he has made assumptions regarding Mr Dawson’s exposure to noise with RCS and exercised ex post facto reasoning to support his conclusion, and
(k)the finding of injury should be revoked and an award entered for the Appellant Employer.
Whilst I will not set out the Respondent Worker’s submissions in full, I have referred to them extensively below and found them to be thorough and most helpful. I thank the authors of those submissions (Mr McDonald, solicitor, and Mr O’Rourke of counsel) for their helpful and thorough research of the issues and their succinct submissions.
The Arbitrator’s reliance on Lobley was not misplaced and discloses no error. As the analysis below illustrates, noisy employment was an issue (but not the only issue) in that case. Cole JA (Kirby A-CJ and Rolfe A-JA, agreeing) held at 64D:
“It follows from these authorities [Smith v Mann (1932) 47 CLR 426; Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269 and Commonwealth v Bourne (1960) 104 CLR 32] that in determining whether, at the time when notice of injury was given, Mr Lobley was ‘employed in an employment to the nature of which the injury was due’, attention must be directed not to whether the employment then engaged in actually caused the injury but whether the ‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered.”
In respect of evidence to be called, Cole JA added at 64E:
“Such an expression of the issue indicates the requirement of a claimant to bring evidence concerning the tendencies, incidents or characteristics of the nature of the employment engaged in at the time of giving notice.”
His Honour then referred to the evidence concerning the “tendency, incidents or characteristics” of Mr Lobley’s employment with the timber mill as being “scant” (at 66F). That evidence consisted of Mr Lobley’s description of the work as noisy and some medical reports that provided opinions not dissimilar to those expressed by Drs Fernandes and Macarthur. None of the parties called an acoustic engineer to establish the noise levels of the particular machinery with which Mr Lobley worked. The omission to call such evidence was not fatal to the allegation that work in the timber mill was noisy, which allegation the Court of Appeal concluded was clearly established (at 67F).
Callaby is not authority for the proposition advanced by the Appellant Employer, namely, that scientific evidence is needed to establish the noise level of each machine with which Mr Dawson worked. In that case the parties called expert evidence from a “scientific officer”, an “acoustician” and an audiologist, but it is not authority for the proposition that such evidence must be called in every case. The dispute in that case focused on which of two employers was the last noisy employer. There was no real contention that the first employer in time (Nylex) was noisy. Nylex argued that Mr Callaby’s employment as a bus driver with the second employer in time, State Transit Authority, was also noisy and to that end called expert evidence of the level of noise emitted from buses driven by Mr Callaby in that employment. That evidence established that the level of noise emitted by the Leyland buses driven by Mr Callaby was 80 dB(A) Laeq, which the judge held was insufficient to establish that the employment carried a real risk of hearing loss.
The Arbitrator in the present matter did not accept the Appellant Employer’s submission that there had to be “forensic noise affectation descriptions attaching to a number of the Applicant’s noise assertions” (Reasons, paragraph 81). He added that it was not necessary “that each individual noise-related contention necessarily is to be backed forensically or scientifically.” Nothing in these statements is inconsistent with Callaby. The Arbitrator did not say there was no need for expert evidence on the issue of noisy employment, but merely that precise noise measurements are not necessarily needed for each item of equipment. This statement discloses no error and is consistent with the relevant authorities.
The preferred method of proving noisy employment is to call an acoustics expert to give evidence as to the level of noise to which the worker was exposed, over what period, and an expert as to whether that exposure involved a real risk of boilermaker’s deafness. I acknowledge, however, that it is not always possible to call such evidence, especially if the employer has ceased business or changed its equipment or method of operation. No such evidence was called in Lobley and the failure was not fatal to the claim.
The Respondent Worker points to a number of authorities where the courts considered the need to call expert evidence in hearing loss cases. In Ilievski v Sutherland Shire Council (unreported 6 March 2001), Judge Burke expressly noted “a worker is not obliged to establish his case by scientific evidence as to noise levels”. I agree with that statement. However, as his Honour acknowledged, a “subjective account of noise” will not suffice if there is expert evidence that the particular employment was not noisy. The Appellant Employer called no such evidence in the present case.
In Costello v Citra Constructions Limited & ors (1989) 22 FCR 247 (Costello) the Full Federal Court held that the absence of expert evidence of the noise levels to which the worker was exposed was not fatal to the claim which was supported by the worker’s subjective evidence and the evidence of a medical practitioner. The Court added at 253/4:
“Although expert evidence is undoubtedly necessary to prove a case of work-induced deafness, it is not necessary that it be of the extent and particularity claimed on behalf of the Respondents. Clearly the Appellant in this case, as a mere lay witness, could not give evidence of the causal connection between the noise level of his workplace and his deafness. This must necessarily have been a matter for expert testimony. But the law does not prescribe the mode or content of that expert testimony.”
Whilst under the NSW legislation it is not necessary to prove that the employment has caused the hearing loss, the comments in Costello are equally applicable to a claim under section 17 of the 1987 Act, which involves establishing that the worker was employed in employment to the nature of which boilermaker’s deafness was due. The nature and quality of the evidence needed for a worker to succeed will depend on the circumstances of each case. In Lobley, no acoustics expert was called and the Court held that it was sufficient to rely on the worker’s evidence together with expert medical evidence. In Callaby, where the issue of noisy employment was much more contentious, several were called.
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. That is exactly what Mr Dawson did in the present matter. His evidence as to the noise to which he was exposed was unchallenged and that evidence, combined with the evidence from Drs Fernandes and Macarthur, clearly discharged the onus of proof he carried. The Arbitrator’s acceptance of that evidence discloses no error.
The Arbitrator did not merely rely on a series of assumptions and apply an ex post facto reasoning to come to the conclusion that the relevant employment was noisy. He relied on Mr Dawson’s evidence in his statement together with the evidence of Drs Fernandes and Macarthur. The Appellant Employer did not seek leave to cross-examine Mr Dawson and did not call expert evidence of the noise levels to which Mr Dawson was exposed. Its own expert, Dr Macarthur, conceded, based on the history put to him, that work with RCS was noisy. The history put to Dr Macarthur included Mr Dawson’s statement, which became evidence that the Arbitrator accepted. The letter to Dr Macarthur dated 6 November 2007 was not designed to elicit from the doctor a change in that opinion, but was directed to obtaining evidence that the last noisy employer was Williams, not RCS. Whilst the doctor did change his opinion about the identity of the last noisy employer, he did not resile from his opinion that RCS was a noisy employer. Even if the Arbitrator had accepted Dr Macarthur’s changed opinion (that the work with Williams was noisy) that would have made no difference to the result because Mr Dawson was found not to have been a “worker” employed by Williams (Reasons, paragraph 50) and, as a result, Williams was not the last noisy “employer” under the legislation.
The Arbitrator’s decision makes it clear that he accepted Mr Dawson’s evidence together with the evidence of Drs Fernandes and Macarthur in reaching his conclusion that Mr Dawson’s employment with RCS was noisy employment within the meaning of section 17 of the 1987 Act. That conclusion was open on the evidence and discloses no error. The evidence set out at [29] and [30] above supports his conclusion and I agree with it.
The doctors’ opinions were not based on unsubstantiated assumptions, but were based on their findings on examination and on an acceptance of Mr Dawson’s unchallenged history, set out in detail in his statement, which was tendered in evidence and accepted by the Arbitrator. They were entitled to express those opinions and the Arbitrator was entitled to rely on them. Their conclusions did not depend on whether Mr Dawson operated the cane harvester with the door open or closed, or on the noise level of one particular machine, but on an acceptance of Mr Dawson’s evidence. The critical features of that evidence are set out at paragraphs [24] and [25] above. Therefore, I reject the Appellant Employer’s challenge to the Arbitrator’s findings.
Whether the need for workers to shout indicates that the particular employment is noisy depends on the circumstances and evidence in each case. That was not the only important feature of Mr Dawson’s evidence about the noise to which he was exposed. He also stated that he would often go home at the end of a working day “with ringing in the ears”. He also gave evidence as to the duration of his exposure to noise. Drs Fernandes and Macarthur accepted that Mr Dawson’s evidence established that his employment was noisy employment within the terms of the legislation. RCS called no evidence to the contrary.
The Arbitrator’s references to the proceedings in the Compensation Court were mainly in the context of the claim against Williams and are therefore irrelevant to the appeal. At paragraph 86 he referred to Mr Dawson’s evidence in the Compensation Court that he first noticed trouble with his hearing in 1984. That evidence was not critical to the Arbitrator’s ultimate finding and, even if the Arbitrator was in error in referring to it (and I do not believe he was) it is of no consequence as he did not base his ultimate conclusion on it.
The Arbitrator has made none of the errors identified in Rikaloski. In that case the worker’s medical expert had an inaccurate and incomplete history about the worker’s duties and noise exposure. His history was of Mr Rilaloski being exposed to noise from construction site machinery, but he had no history about the level or duration of that exposure. The worker’s evidence was that he had been exposed to noise from truck engines and traffic movements as a traffic controller. The correct history was never given to an expert for comment on whether it might have been sufficient to constitute noisy employment. Therefore, there was no basis for acceptance of the expert’s opinion as it was based on an incorrect and incomplete history. In addition, the employer’s expert, Dr Carroll, who did have a history of Mr Rikaloski being exposed to noise from traffic movements, stated that he was “not convinced upon the history which I obtained that Combined Civil would qualify as the last noisy employer”. The Arbitrator relied on his own experience to conclude that employment in the road construction industry would have averaged out at around 85 decibels per working day and, therefore, was noisy employment. In the present matter the Arbitrator has relied on the totality of the evidence and on his acceptance of the evidence of Drs Fernandes and Macarthur, who both had detailed histories of Mr Dawson’s duties and noise exposure. The Arbitrator’s approach discloses no error.
DECISION
The Arbitrator’s determination of 7 December 2007 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
19 March 2008
I NING DONG CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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