Grzenda v Menzies Property Services Pty Ltd - [2014] NSWWCCPD 35

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Grzenda v Menzies Property Services Pty Ltd [2014] NSWWCCPD 35
APPELLANT:	Catherine Grzenda
RESPONDENT:	Menzies Property Services Pty Ltd
INSURER:	GIO General Limited
FILE NUMBER:	A1-1332/13
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION:	6 March 2014
DATE OF APPEAL DECISION:	13 June 2014
SUBJECT MATTER OF DECISION:	Section 17 Workers Compensation Act 1987; employment to the nature of which the injury was due; findings made in absence of argument having been advanced; procedural fairness
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turner Freeman
Respondent:	Turks Legal
ORDERS MADE ON APPEAL:	1. The findings made by the Arbitrator and the orders made as found in the Certificate of Determination dated 6 March 2014 are revoked. 2. The matter is remitted for hearing afresh by another Arbitrator. 3. The respondent is to pay Mrs Grzenda’s costs of the appeal. 4. The costs of the proceedings before Arbitrator Phillips SC are to follow the outcome of the determination following remitter.

BACKGROUND

Mrs Catherine Anne Grzenda was employed by Menzies Property Services Pty Ltd (the respondent) as a cleaner between 1993 and 15 February 2001. Mrs Grzenda has not worked since. In May 2012, Mrs Grzenda forwarded a notice of claim against the respondent and its insurer in respect of lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). It was Mrs Grzenda’s allegation that she had suffered 16.5 per cent binaural loss of hearing as a result of exposure to relevant industrial noise and that the respondent was the last employer who had employed her in employment to the nature of which the injury was due within the meaning of s 17 of the 1987 Act. The alleged deemed date of injury was 15 February 2001. That notice had also included a claim in respect of the cost of hearing aids.
The respondent’s insurer, on 20 December 2012, gave written notice to Mrs Grzenda’s solicitors that the claim had been declined. That correspondence constituted notice, as is required by the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), as to the matters in dispute and the reasons for denial of liability. The denial of liability was founded upon two matters; firstly it was disputed that Mrs Grzenda’s employment with the respondent was employment to the nature of which the alleged injury was due and, secondly, that Mrs Grzenda had no entitlement as she had not sustained an injury, or in the alternative, “she had not met the six per cent binaural hearing loss or more due to employment with [the respondent]”. I note in passing that the respondent’s reference to “due to employment with [the respondent]” in the notice demonstrates a fundamental misunderstanding of those provisions which govern claims concerning loss of hearing such as the present, being one in respect of a loss “which is of such a nature as to be caused by a gradual process”: s 17(1) of the 1987 Act.
The dispute between the parties was the subject of an Application filed with the Commission by Mrs Grzenda in December 2012. That Application came before Arbitrator Jeffrey Phillips SC for conciliation/arbitration on 27 November 2013. The matter proceeded to hearing on that day, following which the Arbitrator reserved his decision. A Certificate of Determination was issued on 6 March 2014 in which the following matters were recorded:
“The Commission determines:
1. In relation to a claim for lump sum compensation and for hearing aids for binaural hearing loss there is an award for the respondent.
2. No order as to costs save for a recommendation that the respondent’s costs be augmented by an uplift for complexity in the order of 20 per cent.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

PRELIMINARY MATTERS

Thresholds

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

On the papers

Both parties submit that the appeal can proceed to be determined “on the papers” as is permitted by s 354(6) of the 1998 Act. Having regard to Practice Directions Nos 1 and 6 and 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.

ISSUES IN DISPUTE

The grounds of appeal as enumerated in the application concerning the appeal are as follows:
“1. On the basis of the Arbitrators [sic] error of fact and law.
2. Fundamentally the Arbitrator erred in determining that the worker did not suffer an injury in the course of or arising out of her employment with the Respondent, as per s 4 of the Workers Compensation Act 1987.
3. The Arbitrator erred in applying an incomplete test to the determination of whether the respondent was a ‘noisy’ employer.”
It must be said at the outset that the “grounds” as noted above are deficient in at least two respects. Firstly, the asserted errors of fact and law as appear in “ground one” are not identified. As drafted, the ground does not comply with the requirements of the Commission’s Practice Direction No 6. That which appears at ground one does not constitute a ground of appeal.
Secondly, “ground two” is misconceived. The claim before the Arbitrator concerned an alleged injury being noise induced hearing loss. The respondent’s defence to that claim was founded upon a denial that Mrs Grzenda had suffered relevant injury and, further, a denial that Mrs Grzenda’s employment with the respondent was relevantly noisy. That is, it was denied that such employment was employment to the nature of which the injury was due.
The question as to whether or not Mrs Grzenda had “suffer[ed] an injury in the course of or arising out of her employment with the respondent” was not relevant to the Arbitrator’s determination of the dispute. The “ground” as expressed is thus founded upon a misconception of the nature of a claim such as the present, being one in respect of industrial deafness, and of those matters relevant to establishing the liability of a “last” employer who was allegedly a relevantly “noisy” employer: s 17(1)(a)(ii) of the 1987 Act.
Those misconceptions which are demonstrated by the manner in which “ground 2” has been articulated have, to some extent, been overcome by the content of those submissions furnished in support of the appeal. It is reasonably clear that the issues in dispute concern whether the Arbitrator erred in the following respects:
(a)in the manner of determining whether the tendencies, incidents or characteristics of Mrs Grzenda’s employment were of a type which could give rise to injury being industrial deafness;
(b)in disregarding the evidence of Dr Bal Krishan;
(c)in failing to deal with the evidence found in the Noise Survey dated November 2003, and
(d)in determining that the appellant, when operating the leaf/fuel blower did so “at safe acoustic levels because she always wore ear protection”.

THE ARBITRAL PROCEEDINGS

Both Mrs Grzenda and the respondent were represented by counsel before the Arbitrator. The proceedings were recorded and a transcript (T) has been produced and a copy made available to the parties.
The documentary evidence before the Arbitrator was identified by him at T1. No oral evidence was adduced at the hearing.

Evidence tendered on behalf of Mrs Grzenda

There is a statement dated 4 September 2013 made by Mrs Grzenda. A summary of her work history between 1965 and February 2001 establishes that Mrs Grzenda had, during that period, been employed in numerous jobs, all of which were described by her as being noisy working environments. Her work with the respondent, which commenced in 1993, was that of a cleaner. Mrs Grzenda worked at the Thurgoona Public School, near Albury New South Wales. During school term she worked a broken shift being 5.00 am to 8.00 am and thereafter between 3.00 pm and 6.00 pm, five days a week. The equipment used in the course of that work was identified by Mrs Grzenda and included a backpack vacuum cleaner, an electric polisher and an industrial blower. The statement includes detail of the duration of individual tasks and a description of the noise level of each machine. Those matters, where relevant, are considered below.
During school holidays, Mrs Grzenda’s work hours were altered to a single shift between 6.00 am and 12.00 midday, 5 days per week. Major clean up of the school premises was conducted during that period. Mrs Grzenda was required to operate the vacuum cleaner throughout one shift and for a few hours the following day. During holidays, Mrs Grzenda was occupied cleaning outdoors using the industrial blower for the entirety of her shift. The polisher was operated by Mrs Grzenda for two full straight days during the holiday cleaning operation. Mrs Grzenda described having a “buzzing noise” in her ears for “a couple of hours after” using the machines which she identified in that statement.
It was also stated that whilst operating any of the equipment identified she could not hear any person who attempted to speak to her. She would need to turn off the machine to enable her to hear what was being said.
Mrs Grzenda stated that she always wore “earmuffs” when using the blower. Mrs Grzenda stated that she has not worked since ceasing employment with the respondent in February 2001. The statement contains a description of the difficulties she has encountered by reason of diminished hearing acuity.
Mrs Grzenda relied upon two reports prepared by Dr Krishan. That practitioner conducts his practice at the Wagga ENT Centre in Wagga Wagga, New South Wales. It appears from Dr Krishan’s reports that he is a general surgeon and that he had received a DLO (Diploma in Laryngology and Otology). The results of an audiogram, which had been arranged by Dr Krishan, appear in his first report dated 28 April 2012. Dr Krishan recorded a history that Mrs Grzenda:
“had started to notice deafness in both ears over the last 20 years gradually becoming worse. She said that her television is so loud that even her neighbours complain about it.”
That report recorded no history concerning any noise exposure experienced by Mrs Grzenda whilst working for the respondent. Dr Krishan provided an opinion as to the calculation of Mrs Grzenda’s binaural hearing loss which had “occurred as a result of noise factors”. The relevant loss was said to be 16.5 per cent binaural hearing loss calculated by reference to the “1976 NAL Table”. Other hearing loss which had been demonstrated when Mrs Grzenda was tested was said by Dr Krishan to be “due to either presbycusis or non noise factors not determined or perhaps even determinable”. Dr Krishan had earlier observed that “the noise exposure history and the total amount of hearing loss do not seem to [sic, to be] commensurate with each other”. In conclusion, Dr Krishan expressed his view that “as [the respondent] were [sic] the last ‘noisy’ employer they [sic] are responsible for all of the hearing loss”.
Following receipt of the last mentioned report, Mrs Grzenda’s solicitors forwarded to Dr Krishan a copy of the statement which is summarised above and a series of specific questions were put to that practitioner. In response Dr Krishan provided a report dated 9 September 2013. A copy of the solicitor’s correspondence addressed to Dr Krishan, dated 5 September 2013 is in evidence. In response to a question as to whether the tendencies, incidents and characteristics of Mrs Grzenda’s employment with the respondent were such to give rise to a real risk of boilermakers’ deafness or deafness of similar origin, Dr Krishan responded:
“She certainly has worked with [the respondent] in the type of work which can give rise to the real risk of ‘boilermakers’ deafeness’.”
Dr Krishan made reference in the second report to information forwarded to him which suggested that Mrs Grzenda had used machines “that produced noise up to 89 decibels” whilst working for the respondent and expressed his view that the respondent was Mrs Grzenda’s “last noisy employer”.

Evidence tendered on behalf of the respondent

Reliance was placed by the respondent upon the opinion of Dr Robin Hooper, ear, nose and throat surgeon, found in his report dated 13 November 2012. Dr Hooper recorded a history that Mrs Grzenda had been:
“exposed to noise from cleaning inside a school using floor model vacuum, backpack vacuum cleaners and polishing machines in the school. She occasionally operated a fuel powered machine from time to time outside the school.”
Dr Hooper made reference to:
“worksite noise levels obtained from noise surveys in 2003”. Dr Hooper recorded that “the main noise levels of the floor vacuum cleaner was 71 dB, the backpack vacuum cleaner 78 dB and the floor polisher 71 dB. The maximum noise level of the fuel blower was 89 dB”.
Dr Hooper further recorded that Mrs Grzenda had worn ear protection when working outside operating the powered blower.
Dr Hooper had arranged audiometry tests which, he stated, demonstrated that “total hearing disability as determined by the 1988 NAL method is 19.2 per cent”. Dr Hooper expressed the view that the “audiometric pattern of the hearing loss does not suggest that the hearing loss is due to industrial noise exposure”. As to the question of the respondent’s liability, Dr Hooper stated:
“LIABILITY: It is noted that noise levels from the machines she operated, with the exception of the outside fuel blower, were low. It was noted that she wore ear protection when she operated the fuel blower when working outside and that the operation of the fuel blower was not continuous throughout the working day.
Taking into account the relatively low noise levels, daily duration of noise exposure together with the atypical audiometric pattern of the hearing loss, I do not think her employment from Menzies Property Service was a significant contributory factor to her hearing handicap.” (emphasis included in original)
Dr Hooper’s opinion was that Mrs Grzenda had suffered nil per cent compensable hearing loss.
The respondent tendered six noise surveys conducted “nationally” on its behalf. Those studies did not address conditions at the premises where Mrs Grzenda was employed but were said to represent studies of conditions similar to those encountered by her. The studies were conducted between 1998 and 2010 by Dr Boulais, National Human Relations and Welfare Manager of the respondent.
It is not proposed to detail the findings of the surveys other than to note that there was a pronounced consistency among the surveys as to noise levels recorded over the period. Only one type of machine assumed to have been operated by Mrs Grzenda, the fuel blower, demonstrated a reading in excess of 85 decibels. Hearing protection is addressed in some of the surveys.

SUBMISSIONS BEFORE THE ARBITRATOR

Counsel appearing on behalf of the respondent stated, somewhat confusingly, at the outset of his submissions (at T2.6), that the issues for determination were:
“…whether [Mrs Grzenda] suffered the disease process condition known as industrial deafness or Boilermaker’s Deafness as a result of her employment with the respondent, to which such deafness was caused by the tendencies, incidents or characteristics of the employment and to which the respondent was, in accordance with the legislative prescriptions, the last noisy employer. It is the respondent’s contention that the respondent employer was not the last noisy employer…”
Counsel was critical of the evidence of Dr Krishan given the absence found in his first report of any recorded history of relevant work conditions. Particular attention was given by counsel to Dr Krishan’s stated conclusion that the respondent was “the last ‘noisy’ employer” and that it was “responsible for all of the hearing loss”. The second report of Dr Krishan was also the subject of criticism. It appears to have been accepted (at T4) that the fuel blower, the noise level of which was recorded as being 89 decibels, was a machine that “can cause any form of industrial deafness”. It was argued that Dr Krishan’s opinion concerning the nature of noise exposure experienced by Mrs Grzenda was flawed in that the report does not record the duration of exposure and other relevant matters.
Counsel noted the evidence that Mrs Grzenda, when operating the fuel blower, wore earmuffs. That fact had not been recorded by Dr Krishan. It was argued that the opinion evidence of Dr Krishan did not, in other respects, meet the requirements of such expert evidence as stated by the Court of Appeal in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (per Heydon JA at [85]).
Reliance was placed by counsel on the opinion expressed by Dr Hooper that, having regard to the “relatively low noise levels, daily duration of noise exposure, together with the atypical audiometric pattern of the hearing loss” he did not think that Mrs Grzenda’s employment with the respondent “was a significant contributory factor to her hearing handicap”. Counsel made clear, in the course of his submissions, that there was no dispute that Mrs Grzenda “suffers hearing loss” but that the respondent’s answer to the claim was that it was “not the last noisy employer”.
Counsel argued that the noise level surveys which were in evidence and the evidence of the author of those surveys were relevant. The qualifications of the author, Dr Denis Boulais, Fellow of the Safety Institute of Australia, include a Masters of Business Administration, Masters of Applied Science in Occupational Health and Safety and a Doctor of Philosophy. Dr Boulais had stated that the equipment used and the noise generated by machinery utilised by the respondent throughout Australia was, as put by counsel, “... the same, or in some cases, very similar make or type, hence the results of this survey apply nationally”. Counsel accepted that the noise level findings concerning the fuel blower exceeded the acknowledged safe level of 85 decibels. Reference was made by counsel to the relevance of the duration of exposure to noise exceeding 85 decibels which is to be found in the noise survey dated November 2003. It seems that it was argued that the evidence did not support a conclusion that the duration of exposure to noise generated by the fuel blower was such that there existed a risk of hearing loss. Emphasis was placed upon Mrs Grzenda’s evidence that she used earmuffs as protection during the operation of the fuel blower. Counsel was unable to identify any express evidence of Dr Hooper which addressed the relevance of such ear protection.
Counsel made reference to relevant authority and acknowledged that it was “not necessary for a worker to call an acoustic engineer in every case of Boilermaker’s Deafness”. However in the present case, it was argued, the evidence presented on behalf of Mrs Grzenda was not capable of establishing that her work conditions were such that the employment was relevantly “noisy”.
In concluding his submissions, counsel put the following argument and sought an award in favour of the respondent (at T13.6):
“…if it is the industry standard that exposure beyond two hours per day, to 85 decibels or more, is causative of industrial deafness, but [Mrs Grzenda’s] only exposure, on an infrequent basis, was half an hour a day, with hearing protection, it is to be suggested in the strongest possible terms, that [the respondent] was not the last noise (sic, noisy) employer to which significant contribution was occasioned to [Mrs Grzenda’s] hearing loss.”

Counsel appearing on behalf of Mrs Grzenda opened submissions by making reference to the decision of the Court of Appeal in Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley). That decision, it was put, establishes the nature of the relevant enquiry to be made on the evidence. In a paraphrase of what was there stated, counsel put the following (at T13.54):
“…so that in determining whether, at the time when notice of injury was given, Mr Lobley was ‘employed in an employment to which the nature of 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.”
Counsel submitted that Dr Hooper in his evidence had applied “entirely the wrong test”. Dr Hooper had considered the question as to whether the work conditions were a “significant contributory factor” to her hearing handicap.
It was further argued that evidence as to the nature and extent of noise exposure is to be found in Mrs Grzenda’s witness statement and in the respondent’s noise surveys. It was further put that those matters had been put to Dr Krishan for his consideration.
Counsel made particular reference to the evidence found in the noise surveys concerning the noise levels emitted by the fuel blower. The evidence, it was put, established those levels as being between 88 and 91 dBA. It was argued that, having regard to Dr Boulais’s evidence concerning duration of exposure that two hours exposure to 91 decibels is, as put, “in the unsafe category”. The evidence of Mrs Grzenda was that during school holidays, she operated the fuel blower for the entirety of her shift.
In response to questions put to counsel by the Arbitrator concerning the relevance of ear protection, it was accepted by counsel that, in fact, the evidence supported a conclusion that earmuffs were used when using the fuel blower. However, it was put that the consequence of using such ear protection “would be a matter of entire speculation”. It seemed to be argued that the evidence of Dr Krishan would support a finding that the provision of ear protection did not alter his view that “the characteristics of the employment are such as to give rise to a real risk of Boilermaker’s Deafness” at (T17).
The evidence of Dr Krishan was said by counsel to have “sufficiently set out the basis for his opinion”. It had earlier been submitted that the second report of Dr Krishan had been provided following provision to that expert of the statement and the noise surveys. It appears that an argument was put that, by inference, Dr Krishan had taken that material into consideration when reaching his views as to the nature of the employment.
The Arbitrator again raised the subject of the relevance of ear protection and suggested that issues raised by the evidence concerning use of such protection “come down to a question of onus”. Counsel’s response was that Dr Hooper had said nothing about ear protection, other than noting the history concerning the use of earmuffs.
Counsel placed reliance upon the evidence of Dr Boulais that the two noisiest machines tested, one of which was the fuel blower, should not be used for more than two hours in an eight hour period. That witness further stated that “for added OH&S best practice, hearing protection (earmuffs) must be worn in addition to the above”. It was further put that the evidence is that Mrs Grzenda used the fuel blower at holiday time between 6.00 am and midday, a period “far in excess of what this OH&S compliance document [specifies]”. It was emphasised by counsel that:
“there is no evidence as to the extent of any attenuation of noise exposure, other than the evidence of [Mrs Grzenda], in this case, to which you’ve been thoroughly taken, at paragraphs 23 and 24, which were what she was experiencing when she was using the blower, about its excessive noise, ringing in the ears afterwards and so on, not being able to have a conversation with someone else and so on.”
Counsel for the respondent, in reply, argued that there was an absence of certainty as to the number of shifts during holidays which were occupied by Mrs Grzenda’s operation of the fuel blower. Counsel for Mrs Grzenda interposed that he had not argued that the blower was used throughout the working week, but that it had been used during at least one shift. Counsel for the respondent, in response to the Arbitrator enquiring as to whether one day’s operation of the blower might “be enough” stated: “No, it’s not enough. We don’t know what the effects of the earmuffs are and the hearing protection” (at T24). Counsel subsequently argued that “…the value of the ear protection…the value of decibel reduction by way of ear protection” was not known having regard to the state of the evidence. He proceeded to state: “[Mrs Grzenda] has to bear the onus of proof. That’s what (sic) palpably missing in those proceedings”.

The Arbitrator’s Decision

The Arbitrator, at the outset of his Reasons, stated (at [4]):
“The issue of liability is to whether [Mrs Grzenda] was employed by the respondent and that employment was the kind of employment for (sic) which hearing loss was occasioned to her.”
Following identification of the evidence before the Commission, the Arbitrator summarised submissions put on behalf of each party.
At [30] of Reasons, the Arbitrator stated:
“The relevant enquiry is whether or not the work the applicant had with the respondent up until 26 June 2000 (sic, 15 February 2001) was employment to the nature of which the injury was due. Further, if the respondent was a ‘noisy employer’ was it the last ‘noisy employer’ for whom the applicant worked as an employee?”
The Arbitrator proceeded to summarise a number of authorities relevant to the proper approach to resolving the “issue” identified, being the requirements of proof of relevantly noisy employment. Those authorities included the decisions in Dawson and ors t/as The Real Cane Syndicate v Dawson [2008] NSWCCPD 35; Lobley; Callaby v State Transit Authority (NSW) (2000) 21 NSWCCR 216; South Eastern Sydney Local Health District v Oztop (2012) NSWWCCPD 50, and BP Australia Ltd v Greene (2013) NSWWCCPD 60.
The Arbitrator considered the matters stated by the Court of Appeal in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43, 8 DDCR 399 (per Beazley JA (as her Honour then was) at [85]) concerning the requirements relevant to, and those principles governing, expert evidence. The Arbitrator noted her Honour’s statement that an expert should set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by [the subject], and information from x-rays and other tests”. The Arbitrator, with respect to the evidence of Dr Krishan, made the following observation (which, I note, mistakes “85” for “89” as Dr Krishan is quoted) at [42] of Reasons:
“Dr Krishan does not get close to complying with that instruction in either report particularly when he in the second report at paragraph numbered 4 in Exhibit C he commences ‘in view of the information provided that she has used machines that produce noise up to 85 decibels…’. How, one asks does that set out the facts observed the assumed facts’? In my opinion it doesn’t.”
The Arbitrator proceeded to note the noise survey evidence that the “only machine and the exposure [Mrs Grzenda] had above 85 decibels was the fuel blower” and that the duration of exposure was for half an hour per shift in school time and for a whole shift during school holidays. It was noted that at all such times “Mrs Grzenda wore ear protection while using this blower” (at [43] of Reasons).
The Arbitrator made reference to “un-contradicted evidence [earlier referred to at [28] of Reasons] that the use of earmuffs/protection reduces the decibel rating by 15 decibels”. The finding was then made (at [44] of Reasons) that:
“Accordingly while [Mrs Grzenda] was using the leaf/fuel blower she would have done so during her shift at safe acoustic levels because she always wore ear protection.”
The Arbitrator’s ultimate finding appears at [45] of Reasons as follows:
“Based on the principles set out above the evidentiary case of [Mrs Grzenda] fails to prove hearing loss while in the employment of the respondent.”
The Arbitrator proceeded to enter the award as noted at [3] above.

DISPOSITION OF THE APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
It is proposed to deal firstly with Ground 3 (noted at [6] above). As earlier observed the submissions provided by Mrs Grzenda on this appeal suggest error, being that the Arbitrator “failed to properly apply the Lobley test to the facts…”. Mrs Grzenda is there making reference to the decision of Cole JA (with whom Kirby P and Rolf AJA agreed) in Lobley where the Court was concerned with the proper construction and application of the provisions of s 17 of the 1987 Act which provides, relevantly:
“(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.
…
(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.
…”
In Lobley, Cole JA, following an exhaustive examination of relevant authority, stated (at 64):
“…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.”
On the present facts, adopting the analysis of Cole JA, it was necessary that the Arbitrator determine whether the employment in which Mrs Grzenda was engaged by the respondent, being her last employment prior to notice of claim, was employment which “had the tendencies, incidents or characteristics … of a type which could give rise to the injury in fact suffered”.
The Arbitrator, between [31] and [41] of his Reasons, appeared to have considered those authorities relevant to the proper application of s 17, and the evidentiary requirements of proof of “noisy” employment. However, when addressing the respondent’s defence that it was not relevantly “noisy”, the Arbitrator erred, as argued by Mrs Grzenda, in the manner of his application of the relevant test.
It is clear that the Arbitrator’s conclusion that Mrs Grzenda had failed “to prove hearing loss while in the employment of the respondent” (at [45] of Reasons) had led him to find in favour of the respondent. Whether Mrs Grzenda had suffered hearing loss “while in the employment of the respondent” had no relevance to the question before the Arbitrator. The error in so approaching the questions raised by the terms of s 17, was foreshadowed by the Arbitrator’s statement of the issues for determination which appears at [4] of his Reasons (noted at [41] above). I note, in passing, that the Arbitrator’s statement contains another error in that, contrary to the Arbitrator’s assertion, there was never any issue as to “whether [Mrs Grzenda] was employed by the respondent” as stated by him.
The respondent submits (at [15] of submissions) that:
“Having identified the correct test, but being unsatisfied with the expert evidence provided by [Mrs Grzenda], and with the uncontested evidence of the efficacy of the ear protection the Arbitrator was unable to find that the workplace was noisy such as to meet the test in Lobley.”
The respondent acknowledges that the Arbitrator failed to explicitly state that his “findings” made between [40] and [44] led him to conclude that the respondent had not been shown to be relevantly “noisy”. However, it is put that such a finding is “implicit” in the reasoning process. That submission must be rejected. Whilst it is correct that the evidence of Dr Krishan appears to have been rejected by the Arbitrator, it is not clear that any relevant findings had, by inference, been made by the Arbitrator as suggested, except those concerning the relevance of ear protection.
The following matters give rise to difficulties concerning the Arbitrator’s findings concerning ear protection. At the hearing, the Arbitrator had acknowledged that the Commission “could not speculate” as to the effects, if any, of the use of ear protection (at T19). Counsel for the respondent submitted that “you don’t know what the effect of the earmuffs are and the hearing protection” (at T24). It was asserted by counsel for the respondent, more than once during submissions before the Arbitrator that the onus as to the relevance of ear protection was upon Mrs Grzenda (at T25 and T26).
The Arbitrator noted that the noise surveys demonstrated that the fuel blower operated by Mrs Grzenda emitted noise in excess of 85 decibels, the acknowledged safe upper limit of noise exposure. The frequency of operation of the machine and Mrs Grzenda’s practice of using ear protection was noted by the Arbitrator and it was then stated (at [44] of Reasons):
“Neither the applicant’s expert Dr Krishan or the respondent’s Dr Hooper dealt with this issue. I was informed by Mr Horan that I could not speculate as to the effects if any of the use of ear protection on the applicant as the two experts had not provided an opinion. That submission may be correct, however there is un-contradicted evidence in Exhibit 3 page 36 referred to above at paragraph [28] that the use of ear muffs/protection reduces the decibel rating by 15 decibels. Accordingly while the applicant was using the leaf/fuel blower she would have done so during her shift at safe acoustic levels because she always wore ear protection.”
The Arbitrator in so concluding had not, in my view, touched upon the difficult questions addressed by Cole JA in Lobley which may arise in a matter concerning an allegation of relevantly “noisy” employment and the use of ear protection. Those matters were raised by his Honour when it was stated in Lobley (at 65):
“In my view it is sufficient for a claimant worker to establish that the employment in which he was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. If evidence establishes that circumstance the worker satisfies the onus of establishing that at the time of giving notice he was employed in an employment to the nature of which the injury was due. It is consistent with the intent of the workers’ compensation legislation, and with the intent that Dixon CJ referred to in Bourne (1960) 104 CLR 32 at 38 of giving to the worker ‘ready recourse by the employee to the latest employer who employed him in the work to the nature of which his complaint was due independently of the question whether working for that particular employer contributed at all to his condition or aggravated it or accelerated its development’ that this lesser onus be imposed upon the applicant. It also accords with the views expressed by Jordan CJ and Street J in Tame (1947) 47 SR 269 at 272, 273. The evidentiary onus then shifts to such employer sued to seek to establish that protective measures in fact in place excluded the possibility of any such injury. Like Davidson J in Tame, I prefer to express no concluded view regarding whether, if an employer were able to exclude the possibility of injury because of protective measures taken, the worker, having established the ‘tendency, incidents, or characteristics’ of the employment engaged in would, in those circumstances, fail. This case does not require a decision on that question.”
In submissions on this appeal Mrs Grzenda challenges the Arbitrator’s “approach” to the evidence concerning ear protection. Whilst the submission is expressed with considerable economy, it is asserted that the state of the evidence “did not permit the Arbitrator to make [the finding noted at [59] above]”.
Given the respondent’s acceptance before the Arbitrator that the “effect” of ear protection was unknown, the Arbitrator has in my opinion erred in finding as he did concerning the consequences of use by Mrs Grzenda of ear protection. Such finding was made in the absence of any such argument having been advanced on behalf of the respondent. Leaving aside the question of onus of proof and those other matters raised by Cole JA in Lobley, it is clear that Mrs Grzenda’s complaint as to the Arbitrator’s “approach” is well founded. With respect to this finding, Mrs Grzenda has been denied procedural fairness. Further error on the part of the Arbitrator has, in my view, been made out.
The Arbitrator’s errors in asking the wrong question concerning the application of s 17 and his failure to accord Mrs Grzenda procedural fairness concerning the ear protection finding, have each relevantly affected his decision. In the circumstances, it is necessary that the Arbitrator’s decision be revoked on this appeal. In such circumstances, other matters raised in submissions need not be addressed.
The question remains as to what course should be adopted following that revocation. Whilst it is desirable and in accordance with legislative intent that, if possible, a new decision be made on appeal, I have reached the view that there are a number of impediments concerning the state of the evidence and argument advanced which, in combination, do not permit that course.
I consider that an appropriate order would provide for the matter to be remitted to a different Arbitrator for hearing afresh. The conduct of that hearing is, of course, a matter for the Arbitrator before whom the matter is listed. It is nonetheless appropriate, and may be of some guidance to the parties when presenting their case afresh, that I record those matters which have led me to decline to attempt a redetermination of the matter on appeal.
Whilst there is no dispute that Mrs Grzenda suffers a substantial hearing loss, the respondent denies relevant injury, that is, that any portion of the loss assessed is noise related. Reliance is placed upon the evidence of Dr Hooper whose report, under the heading of “Liability”, did not address the question raised, but rather addressed an irrelevant matter, namely the absence of causal relationship between the loss assessed and the work performed with the respondent. However, Dr Hooper expressed the view “the audiometric pattern of the hearing loss does not suggest that the hearing loss is due to industrial noise exposure”. That last statement is not explained by the expert medical witness.

In contrast, the expert medical evidence in Mrs Grzenda’s case, that of Dr Krishan, suggests that she suffers a “mixed” hearing loss, that is that only part of the loss assessed, being 16.5 per cent of binaural hearing loss, is due to noise exposure.
Dr Krishan has made calculations by reference to “1976 tables” whereas Dr Hooper makes reference to determination of the extent of the loss by reference to “1998 NAL Scale”. No attention has been directed to the relevance or otherwise of that apparent point of distinction between the experts’ approach to assessment.
The parties may consider whether the state of the expert evidence is such as to permit a fair and just determination of the matters in dispute. The liability question, being whether Mrs Grzenda’s employment with the respondent was relevantly “noisy” might, arguably, give rise to the need to consider the relevance of the use by Mrs Grzenda of ear protection. That issue, if it is to be ventilated, will necessitate examination of those matters raised by Cole JA in Lobley (noted above at [60]). The questions raised by his Honour would undoubtedly require close attention in argument.
I note, in conclusion, that should a finding be made in favour of Mrs Grzenda with respect to the fundamental liability question, that is whether the employment was relevantly noisy, a referral to an AMS as required by s 65(3) of the 1987 Act would then, in my view, be appropriate (cf Boggian v James Hardie & Co Pty Ltd, McGrath J, Workers Compensation Commission, No 8847 of 1982, 20 April 1983, unreported, where his Honour considered the legislative predecessor of the presently relevant provisions; see also discussion per Neilson J in Smith v Norton Pty Ltd (1996) 13 NSWCCR 277). That being so, the question as to the “nature” of the loss, that is the existence or otherwise of noise related hearing loss, would be conclusively determined by the AMS: s 326(1)(c) of the 1998 Act. In such circumstances the difficulties which have, in the past, attended the resolution of matters concerning the distinction, as perceived, between liability disputes and medical disputes where causation is disputed (see Greater Western Area Health Service v Austin per Campbell J [2014] NSWSC 604) may not arise.

DECISION

The findings made by the Arbitrator and the orders made as found in the Certificate of Determination dated 6 March 2014 are revoked.
The matter is remitted for hearing afresh by another Arbitrator.

COSTS

The respondent is to pay Mrs Grzenda’s costs of the appeal.
The costs of the proceedings before Arbitrator Phillips SC are to follow the outcome of the determination following remitter.

Kevin O'Grady
Deputy President

13 June 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE