Despotoski v Qantas Airways Ltd

[2009] NSWWCCPD 42

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Despotoski v Qantas Airways Ltd [2009] NSWWCCPD 42
APPELLANT:		Miroslan Despotoski
RESPONDENT:		Qantas Airways Ltd
INSURER:		Allianz Workers Compensation (NSW) Ltd
FILE NUMBER:		A1 –8596/08
DATE OF ARBITRATOR’S DECISION:		29 December 2008
DATE OF APPEAL DECISION:		17 April 2009
SUBJECT MATTER OF DECISION:		Industrial deafness claim; whether the worker’s evidence was sufficient to discharge the onus of proving ‘ noisy employment’.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Maurice Blackburn Pty Ltd
Respondent:	Sparke Helmore
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 29 December 2008 is confirmed. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 21 January 2009 Miroslan Despotoski (‘the Appellant / Mr Despotoski’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 29 December 2008.

1. The Respondent to the Appeal is Qantas Airways Ltd (‘the Respondent/ Employer’).

1. The Appellant is presently 60 years old. He commenced employment with the Respondent in 1987 in its division known as Q Catering. Up until about 1998 he was employed in the wash up area, and claimed to have been exposed to noise all day from washing machines and other machinery. Since 1998 he has been employed delivering carts to jet aircraft on the tarmac at Sydney Airport. He claims to have been exposed to significant noise from aircraft engines on the tarmac as well as from loading and unloading trucks in the dock area.

1. He claimed that, as a consequence of his employment, he suffers from industrial deafness within the meaning of section 17 of the Workers Compensation Act 1987 (‘the 1987 Act’). Notice of his claim was given to the Respondent on 19 February 2008.

1. There was no dispute that the Appellant suffers from sensori-neural hearing loss of a type that is due to industrial noise. What was in issue between the parties was whether or not the Respondent was responsible for that loss.

1. On 27 October 2008 the Appellant filed an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission seeking lump sum compensation and medical expenses pursuant to the provisions of the 1987 Act. The parties attended a conciliation / arbitration hearing on 16 December 2008. Since the claim had not been assessed by an Approved Medical Specialist (‘AMS’) the issue for determination was solely whether or not the Respondent was liable to pay compensation for any hearing loss and any consequential hearing aids.

1. The Arbitrator found in favour of the Respondent on the basis that the Appellant had failed to discharge the onus upon him to prove that his hearing loss arose out of or as a consequence of his employment with the Respondent.

1. It is from this decision that the Appellant seeks leave to appeal.  

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’ dated 29 December 2008 records the Arbitrator’s orders as follows:

“1.Award for the Respondent employer.

2.No order as to costs.”

ISSUES IN DISPUTE

1. The real issue in dispute in this appeal is whether or not there was sufficient evidence to support a finding that the Appellant’s employment was employment to the nature of which his injury was due. The Appellant has identified seven grounds of appeal as follows:

“1.The Arbitrator erred in applying the wrong legal test by finding that the Appellant required expert evidence of the noise levels in the areas in which he worked.

2.The Arbitrator erred in misdirecting himself that the Appellant relied on the noise survey.

3.The Arbitrator misdirected himself by believing that he was required to accept the noise survey in full, without any analysis as to the factual content on which the survey was based.

4.The Arbitrator failed to make a finding that the noise survey demonstrated that the employment of the Appellant…was a type which contained the tendencies, incidents and characteristics which could give rise to an injury as that suffered by the Appellant.

5.The Arbitrator failed to take into account the history of the onset of symptoms, whilst deciding whether or not the employment with the Respondent had the tendencies, incidents and characteristics of a type which could give rise to the injury suffered by the Appellant.

6.The Arbitrator misdirected himself in focussing upon the level of noise exposure required to cause industrial deafness in ‘one second’.

7.The Arbitrator erred in finding that the Appellant’s exposure was limited to a safe range as found by Geraghty J [in Wright v State Transit Authority of NSW (7 February 1996)].”

The Appellant has also claimed that the Arbitrator erred in not finding that employment in both the wash up area and on the tarmac had the tendencies, incidents and characteristics to cause the injury.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 submission by the Appellant that the appeal can proceed to be determined on the basis of these documents, notwithstanding the Respondent’s “request” that it be given an opportunity to make oral submissions, 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. 

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the requirements of section 352(2) of that Act.

1. Leave to appeal is granted.

THE EVIDENCE

The Appellant’s evidence

1. In his statement dated 17 October 2008 the Appellant said:

“From 1987 to date I have been employed by Q Catering.

I worked in the catering department and was exposed to noise from aircraft engines on the tarmac and also to noise from loading and unloading of trucks in the dock area.

I wore ear protection occasionally.

Before working for Q Catering I worked in the kitchen at King George Hospital.
I have had difficulty with my hearing for many years.

I have no history of ear problems or infections, family incidence of deafness, head or neck injuries. I have had no exposure to firearms or recreational noise exposure.”

1. In a subsequent undated statement filed on 1 December 2008, the Appellant added:

“[In the wash up area] I found that I had to look at people in the face to completely understand what they were saying…[loading the carts] for the Boeing 737 can be up to 10 times a day.

The noise from the planes is very noisy. I wore small hearing plugs. They would not block out all the noise. I would still hear significant noise from the aircraft. It would almost be impossible to communicate with other workers at these times. I am not able to speak to the person next to me unless I get very close to their face and raise my voice. If someone begins talking to me and they are not in my field of vision, I am not able to hear them. Sometimes I would have to remove the ear plugs to communicate…”

1. The Appellant relied upon a report from Dr Stylis, ENT surgeon, dated 19 February 2008. He recorded this history:

“Originally he worked in the wash up area where dishes were being washed, which is very noisy because of the washing machines. Later, perhaps in the last ten years, he was involved only in delivering newly laden carts from the catering section out to the aircraft where these are loaded onto the craft and the old carts are taken off and brought back. The whole process takes about twenty minutes at the site of the aircraft. This happens six or seven times a day, sometimes more often.

He used to work in the kitchen at King George Hospital for four or five years…the kitchen was also noisy to a significant degree.”

1. Dr Stylis concluded that the Appellant had a hearing loss “consistent with that seen in people who have a chronic exposure to industrial noise” and that the Respondent was the last noisy employer.

1. An Application to Admit Late Documents filed by the Appellant on 20 November 2008 contained a report from Dr Scoppa, ENT physician, dated 13 November 2008. This report was essentially a commentary on some flaws Dr Scoppa considered were contained in the Noise Survey Report dated June 2008 relied upon by the Respondent. The report did not refer to the Appellant: the identity of the claimant to whom the report referred was blacked out. However, this report was withdrawn from evidence apparently prior to the hearing [Transcript page 16].

The Respondent’s Evidence

1. The Respondent relied upon a report titled “Workplace Noise Survey, Q Catering, Kingsford Smith Airport” dated June 2008. The report was prepared by “Environmental Results [Engineers & Consultants] Environmental, Architectural, Building & Occupational Acoustics” under the hand of Mr Stuart McLachlan.BE, Grad Dip Envi Studies, and a member of the Australian Acoustical Society. Noise testing was carried out at the Q Catering food preparation facility at Sydney Airport presumably some time in June 2008. The aim of the survey was to obtain typical ambient noise profiles in defined zones of the facility and near the ears of operators servicing aircraft. Measurements were obtained at 17 locations in the building. For operators servicing aircraft, a noise dose meter was attached to an operator for a complete shift. The microphone was attached to the shirt collar of the operator as close to the ear as possible. A summary of the results appeared to show a peak level of 127dB obtained from “tarmac sources” when “servicing aircraft”. The report stated:

“The highest noise exposure was for the operator involved in taking food to the aircraft and collecting used catering trolleys to take back to the catering facility. The measured noise dose of this operator was 82dB(A) which is within the 85Laeq,8h noise exposure criterion. This operator experienced a peak noise level of 127dB(A) for one second during the 8 hour shift. This was within the criterion for peak noise of 140dB(C).”

1. The report concluded:

“The measurement results indicated that no operators were exposed to noise levels that exceeded the 85dB(A) criterion either within the Q Catering facility or for the operator that was involved in the servicing of aircraft. There were no operators exposed to noise that exceeded the peak criterion 140LCpk(MaxP).

It was concluded that since noise levels were found to be within the national criteria that no special hearing protection is required.”

1. The Respondent arranged for the Appellant to be examined by Dr Kenneth Howison, ENT Surgeon, on 19 September 2008. In a report dated 23 September 2008, Dr Howison concluded:

“Mr Despotoski has a binaural high tone sensori-neural noise induced deafness of 5.7%…In view of [the Workplace Noise Survey of June 2008] Q Catering cannot be considered a noisy employer and therefore Mr Despotoski’s noise induced deafness cannot be due to this employment…In view of the noise studies, Q Catering is not a noisy employer and could not have contributed to Mr Despotoski’s noise induced deafness…All of Mr Despotoski’s hearing loss is due to unacceptable noise levels.” 

THE SUBMISSIONS

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

a.It was not necessary for the Appellant to produce his own expert acoustic report (Dawson & Ors t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35) (‘Dawson’) when the Appellant accepted the findings of the Respondent’s report as to the noise levels in relevant areas.

b.The Appellant’s challenge to the Respondent’s report was to the duration of exposure. The Appellant’s statement that he was on the tarmac for twenty minutes at least six or seven times per day was accepted. The Noise Survey’s finding that the noise level on the tarmac reached 127dB(A) for one second was inaccurate given the Appellant’s evidence of the nature of his duties.

c.The Arbitrator found that “the duration of exposure far exceeded one second during an 8 hour shift” such that the Appellant’s evidence should have been accepted.

d.The Arbitrator should have accepted the opinion of Dr Stylis.

e.One second of exposure at 127dB(A) was sufficient to find that the incidents, tendencies and characteristics of the Appellant’s employment could give rise to industrial deafness.

f.The Noise Survey’s conclusion that the daily noise level dose was 82dB(A) could not be accepted since the Appellant’s exposure to loud noise was not for ‘one second’ per shift, but for periods of 20 minutes, six or seven times per shift.

g.The Arbitrator erred in finding he was bound to accept the findings of a daily noise dose of 82dB(A).

h.An exact calculation of noise levels is not required: all that is required is to determine whether the employment has the ‘tendencies, incidents and characteristics’ to cause industrial deafness.

i.The Arbitrator ignored the uncontested fact that the Appellant began to notice hearing loss within the last ten years, in the middle of his employment with the Respondent.

j.The Arbitrator should have accepted the finding of Geraghty CCJ in Wright v State Transit Authority of NSW (7 February 1996) (‘Wright’) that “There also seems to be general agreement that a maximum sound of 115 dB(A) would constitute, in one second, the equivalent of a daily noise dose of 1.”  An exposure of even one second to noise on the tarmac of 127dB(A) was sufficient to cause traumatic hearing loss.

k.The Noise Survey taken in June 2008 was not relevant to the work performed in the wash up area up to about 1998. That Survey did not conduct tests in that area.

l.It was not open to the Arbitrator to accept the Noise Survey and the report of Dr Howison in relation to the Appellant’s employment in the wash up area ( Makita (Australia ) Pty Ltd v Sprowles [2001] NSWCA 305) (Makita).

m.Because of the inaccurate daily noise dose levels in the Noise Survey, accepted by Dr Howison, the Arbitrator was bound to accept the opinion of Dr Stylis, particularly since he specifically found that the Appellant’s statement and the report of Dr Stylis were sufficient for the Appellant to establish his claim.

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

a.The Appellant relied only upon his own statements, accepted by Dr Stylis.

b.The Appellant offered no expert evidence to support the allegations he made as to the degree of noise to which he was exposed.

c.Because the Respondent adduced evidence in response to the Appellant’s claim of noisy employment, the Appellant then had the onus of proving that he was exposed to noise that could cause industrial deafness. The determination of other issues, while relevant to the case at first instance, are not relevant to the appeal.

d.The Appellant failed to discharge this onus and this was the basis of the Arbitrator’s findings.

e.The Appellant’s evidence did not fulfil his obligation “ to bring evidence concerning tendencies, incidents or characteristics” of the type which could give rise to the injury. ( per Cole JA in Blayney Shire Council v Lobley & Anor (1995) 12 NSWCCR 52). (‘Lobley’).

f.The Appellant accepted the findings of the Noise Survey only demurring that the findings were not representative of the totality of the Appellant’s employment. However, the Appellant adduced no evidence to show that the conditions tested were any different from those he experienced during his employment with the Respondent.

g.There was no evidence from the Appellant of the noise levels to which he was exposed, the period of exposure and whether those factors were sufficient to result in his employment being employment to the nature of which boilermaker’s deafness is due.( Per Roche DP in Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181)(‘Rikaloski’).

h.The Respondent accepts that it is not always necessary for expert evidence to be adduced to enable a worker to succeed in such a claim, but “ it is always essential that he or she present detailed evidence (if no acoustic 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…” (per Roche DP in Dawson).

i.The Appellant’s evidence did not meet the test in Dawson.

j.Without other material being made available to Dr Stylis in relation to the type of noise or the position of the Appellant to that noise, his report did not meet the evidentiary requirements of expert evidence as set out in Makita and in Hevilift (PNG) Ltd v Etherington (2005) NSWCA 42.

k.The results of the Noise Survey were well known to the Appellant who failed to adduce evidence to support the contentions he made as to its apparent defects.

l.The Noise Survey report demonstrated that during an operator’s eight hour shift servicing aircraft and on the tarmac, he was only exposed to the peak noise level of 127dB(A) for one second. There is no evidence from the Appellant that his duties were any different from those of the operator tested.

m.Even if the Appellant was exposed to 127dB(A) for longer than the operator in the Survey, the peak noise level is still below the national standard.

n.The Appellant has not adduced any evidence that the duration of his exposure was any greater than that of the operator tested, or that the duration of exposure could have caused industrial deafness.

o.The case law relied upon by the Appellant required the decision maker to either choose between competing expert opinions or non-expert factual scenarios. These positions can be distinguished from the current case where there is expert opinion adduced by the Respondent and not by the Appellant.

THE ARBITRATOR’S FINDINGS AND REASONS

1. The Arbitrator’s Reasons were both thorough and well researched. After setting out in considerable detail the submissions made by both parties, with reference to the various authorities upon which they each relied, he set out his “Findings and Reasons” commencing at [41]. Those findings however to some extent appear to simply reiterate the parties’ submissions such that it is not always clear whether he is in fact making ‘findings’ or merely repeating the submissions. I will consider the implications of this in due course.

1. The Arbitrator noted that there was no dispute that the Appellant suffered from industrial deafness. The issue to be determined was whether employment with the Respondent was employment to the nature of which the injury was due. He noted that the Appellant bore the onus of establishing that the Respondent was a ‘noisy employer’ stating at [41]:

“It was not disputed that the correct test is, as established in Lobley and other cases, is not whether the relevant employment actually caused the injury or loss but whether the ‘tendencies, incidents and characteristics of that employment were of a type which could give rise to the injury in fact suffered’.”

1. He noted that the Appellant adopted the Respondent’s Noise Survey report as to noise levels on the tarmac area of 127dB(A) but disputed that the survey accurately represented the usual working day of the Appellant “as the survey seems to be in the quiet area of the airport, and the Applicant did not work in those areas.”  The Arbitrator accepted [at 43] the Appellant’s statement “as to his working day”.

1. He continued at [44]:

“He relies on the history set out in Dr Stylis’ report as evidence of his exposure to industrial noise and the doctor’s statement as his expert that ‘The last noisy employer was Qantas Airways Ltd …’ Accordingly he attributes his uncontested boilermaker’s deafness to his employment with the Respondent, without his own acoustics report.”

1. The Arbitrator then noted and accepted the Appellant’s submission, in line with Dawson, that “it is not necessary to present a noise survey provided his expert as in that case a doctor had a correct history, which is not disputed herein.”  

1. It is appropriate to set out in some detail the balance of his findings at [47 – 56] as follows:

“47.The Applicant submits the noise survey is correct and the Applicant’s statement has not been disputed as to his working day. There is no other evidence than the Applicant’s statement as to his noise exposure and it is uncontested. There is no doubt that the Applicant has been exposed to noise of 127dB(A) on the tarmac for 6 to 7 times a day whilst moving food carts to and fro[sic] aircraft which is alluded to in the Respondent’s noise survey upon which the Applicant relies and that based on Geraghty J’s decision in Wright a level of 115dB(A) would constitute, in one second, the equivalent of a daily noise dose of 1 and could cause instantaneous damage. Hence he claims repeated exposures to 127dB(A) could cause traumatic damage and the claimed hearing loss.

48.However, the Respondent has submitted that following the decision in Rikaloski the Applicant can only succeed if he adduces expert evidence of the sound levels and the duration of exposure… It is submitted that the Applicant’s case must fail as there is no expert evidence that the noise level in the employment was sufficient to create a real risk of loss of hearing.

49.Moreover the Respondent relies on Galdemar (Galdemar v Asta EnterprisesPty Ltd [1998] 17 NSWCCR 155) where Neilson J said that evidence as to the extent of the noise to which the applicant was exposed at the respondent’s premises… given by an acoustic engineer was preferred to that of a lesser experienced mechanical engineer… He said that only at a peak 140dB(A) was there a risk of traumatic damage to the ear. In this case no peak reading of 140 or over has been recorded.

50.The Applicant submitted that a doctor could be the appropriate expert and he partly relied upon the Respondent’s survey but at the same time challenged the noise readings by asserting that they are at the lower end and are unreliable( though he did not produce any evidence to support his submission), and noted that the microphones were on a shirt collar, which he asserted was different to the ear level ( but did not produce any evidence to prove this point). In the absence of an appropriate expert’s report, other than Dr Stylis for the Applicant, I prefer the expert evidence in the Respondent’s survey, as the author…is a member of the Australian Acoustical Society, whereas Dr Stylis is an [ENT] specialist. He has the greater expertise in the field of acoustic measurement.

51.Moreover the Applicant seeks to rely on the survey to support his assertion that the ‘tendency, incidents or characteristics’ of employment at Qantas, in particular on the tarmac, were such as to give rise to a real risk of boilermaker’s deafness due to the survey indicating that the noise level on the tarmac was 127DBA where the Applicant worked 6 to 7 or more times a day for 20 minutes at a time, which created a real risk of boilermaker’s deafness. But I prefer the specific expert testimony of Mr Day an acoustics engineer referred to by Neilson J in the more recent decision of Galdemar to the general statement by Geraghty J in the earlier case of Wright that ‘There also seems to be general agreement that a maximum sound of 115dB(A) would constitute, in one second, the equivalent of a daily noise dose of 1’. Although the Applicant relies in part on the Respondent’s noise survey, he has not lead any evidence to challenge the Respondent’s expert’s statement [as to peak noise standards]…Accordingly his reliance on the 127dB(A) reading on the tarmac as being sufficient to cause traumatic hearing damage has not been established on the basis of any scientific evidence, and relies entirely on a statement by Geraghty J in Wright… which I feel has since been superseded by Neilson J in Galdemar and the 140dB(A) National standard .

52.In any event the Applicant is being very selective about what he accepts or rejects from the Respondent’s survey. He cant have it both ways, he either relies on the survey or should provide his own expert evidence which he has failed to do. Moreover the Applicant’s submission ignores Geraghty J’s conclusion in Wright that ‘it seems to me that a reasonable assessment of noises which are safe, must be judged against a standard of 85dB(A) over an 8 hour period, with the LA max of instantaneous level of 115dB(A). If the incidence and tendencies of employment are generally contained within these limits, the employment should not be found to be noisy’.

53.As stated in Galdemar, ‘The Applicant has the onus of proof…’ All we have in this case is the Applicant’s statements…and Dr Stylis’ acceptance that the Respondent was the last noisy employer, without any appropriate supporting expert report. Roche DP noted in Rikaloski ‘…a history recorded by a doctor can be evidence of the facts recorded…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 it was noted that it is not merely the level of noise to which the 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).’ Accordingly whilst Dr Stylis’ history can be evidence of the facts recorded, and if there were no expert acoustic report, that, together with the Applicant’s statements would be sufficient to satisfy the onus as was the case in Lefoe ( Brian Lefoe v Fugen Masonry Pty Ltd, a decision of a Commission Arbitrator dated 14 May 2008) and Dawson.

54.However, this case is distinguishable from Lefoe and Dawson as there is an acoustic expert report which I have preferred to the report of Dr Stylis as to the nature of exposure. The Applicant has in fact not produced any evidence of the nature or volume of exposure, and I am left with the findings of the Respondent’s expert…The Applicant does not accept that the survey represents the usual working day of the Applicant, and submitted that it seems to be in the quiet are of the airport, and the Applicant did not work in those areas. However the Applicant has not adduced his own expert evidence of what the noise levels are in the areas he alleges he worked.

55.That leaves the Respondent’s noise survey as the only evidence of noise exposure…The only evidence before me is of noise levels below the 85 decibels cut off subject intermittently to 127dB(A) (which is less than the national standard of 140 for traumatic damage). This is not expected to cause hearing damage. The Applicant has no scientific proof of his claim… The Applicant could have been exposed to sufficient noise to cause boilermaker’s deafness…in another environment. The Applicant has failed to discharge the onus of proof.

56.Therefore having reviewed all the evidence, I could not be satisfied that the undisputed sensori-neural hearing loss of a type that is due to industrial noise from which the Applicant suffers is related to his employment with the Respondent. Therefore I find he did not suffer an injury to his hearing in the course of his employment with the Respondent.”

DISCUSSION AND FINDINGS

1. The thrust of the Appellant’s submissions on appeal is that the Noise Survey was defective or unreliable in some way. However, as the Arbitrator rightly noted, there was simply no evidence in support of the Appellant’s argument on this issue.

If, as he pointed out, there had been no expert acoustic report from the Respondent, the Appellant may well have succeeded based upon the principles in Dawson. In that case, Mr Dawson worked as a cane harvester/ operator for the Respondent between 1980 and 1985. He claimed that he was exposed to significant industrial noise during that time. He provided a detailed statement of his duties and the nature and extent of the noise exposure. His statements were supported by two ENT specialists. No expert acoustic evidence was adduced. Deputy President Roche confirmed that expert scientific evidence was not required to establish the noise level of each machine operated by Mr Dawson nor that such evidence must be called in every case (Callaby v State Transit Authority (NSW) & Anor (2000) NSWCCR216) (‘Callaby’) noting at [39-44] as follows:

“39.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.

40.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.

41.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), (Ilievski) 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 [1990] FCA 9; (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.’

43.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.

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. 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.”

1. In the present case, just as Burke CCJ observed in Ilievski , the Appellant’s “subjective account of noise” could not suffice when faced with expert evidence that the employment was not noisy. What was required was either expert acoustic evidence or commentary on the existing report, or evidence to support the Appellant’s dispute with the accuracy or reliability of the survey such as that contained in the withdrawn report of Dr Scoppa to which I referred in paragraph 20 above. The weight of that particular evidence is of course a different issue, but it is the nature of the commentary contained in that report that may have provided some support for the criticisms of the Noise Survey raised by the Appellant.

1. In Rikaloski, the worker was employed 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 claimed that he was exposed to “noise of truck engines and traffic movements” As a result of that noise he said he was “not able to communicate with co-workers at a normal conversational level” but had to “shout in order to be heard.” 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. As Deputy President Roche observed:

“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… 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]). 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. Contrary to the Appellant’s submission, I do not accept that the Arbitrator found as a matter of fact that “the duration of exposure far exceeded one second during an 8 hour shift” in [47] of his Reasons. That paragraph, read in context, is in effect a summary of the Appellant’s submissions. It is perhaps regrettable that the Arbitrator’s purported ‘findings’ were expressed in this way, but even if I were to accept that such a finding had been made, it is clearly contrary to the evidence. While I accept the Appellant’s account of his daily activities, as did the Arbitrator, those activities, carried out by a similar operator, apparently only exposed him to one second of 127dB(A) in an eight hour shift. There was no evidence from the Appellant that his duties differed in any way from those carried out by the test operator. Nor was there any evidence that the Noise Survey was carried out in a quiet area of the premises, and not where the Appellant worked. The report covered assessments in 17 areas including “the wash area, transport dock, coolroom, chiller centre and packing area”. Even if, as the Respondent points out, the Appellant was exposed to 127dB(A) for more than one second in a shift, that peak level is still below the national standard such that the duration of any exposure to such levels would not necessarily mean that such exposure was capable of causing industrial deafness.

1. The Appellant’s criticisms of the Noise Survey are simply no more than that, and are unsupported by any evidence.  The authorities relied upon by the Appellant could be distinguished for the reasons given by the Arbitrator.

1. I accept the Respondent’s submission that the Arbitrator’s acceptance of the opinion of Dr Stylis over the findings of the Noise Survey would have been an error of the kind identified in Makita and Hevilift. Once the Noise Survey was in evidence, the onus was on the Appellant to respond with appropriate expert evidence. The report of Dr Stylis simply did not meet that requirement.

1. The Appellant was unsuccessful not because he failed to establish that he suffered from industrial noise induced deafness, but because he failed to discharge the onus of proof required of him to prove ‘noisy employment’.  His submissions on appeal, while correctly identifying the relevant principles, do not demonstrate that, as Spigelman CJ said in State Transit Authority v Fritzi Chemler [2007] NSWCA 249 (‘Chemler’) the “true and correct view” of the case was other than as determined by the Arbitrator.

CONCLUSION

1. Having conducted a review on the merits (per Spigelman CJ in Chemler) I can see no basis upon which to overturn the Arbitrator’s decision. The nature and quality of the Appellant’s evidence was insufficient for him to succeed.

DECISION

1. The decision of the Arbitrator dated 29 December 2008 is confirmed.

COSTS

1. No order as to costs of the appeal.

Deborah Moore

Acting Deputy President  

17 April 2009

I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE