Holyoak v ISS Property Services Pty Ltd

[2024] NSWPIC 223

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Holyoak v ISS Property Services Pty Ltd & Ors [2024] NSWPIC 223

APPLICANT:

Andrew Paul Holyoak

FIRST RESPONDENT:

ISS Property Services Pty Ltd

SECOND RESPONDENT:

Assetlink (23) Pty Ltd

MEMBER:

Cameron Burge

DATE OF DECISION:

1 May 2024

CATCHWORDS:

WORKERS COMPENSATION - Industrial deafness; concurrent employment; whether first respondent was a noisy employer; second respondent admits noisy employment; medical expenses; claim for hearing aids; no issue applicant has reasonable necessity for hearing aids; only issue is whether both respondents are liable for cost of the treatment; lump sum compensation; no issue matter will be referred for medical assessment; issue is whether both respondents will be liable for payment of compensation, and if so, to what extent as between them; Held – the first respondent is not a noisy employer; award for the first respondent; second respondent to pay the costs of and incidental to the hearing aids; permanent impairment claim remitted to the President for referral to Medical Assessor to determine the applicant’s whole person impairment.

DETERMINATIONS MADE:

The Commission determines:

1.     Award for the first respondent.

2.     The second respondent is to pay the costs of and incidental to the hearing aids in accordance with SIRA rates and the quotation dated 1 July 2021.

3.     The claim for lump sum compensation is remitted to the President for referral to a Medical Assessor to determine the degree of impairment arising from the following:

Date of injury:                  2 December 2021 (deemed)

Body systems referred:   hearing loss

Method of assessment:   whole person Impairment.

4.     The documents to be referred to the Medical Assessor to assist with their determination are to include the following:

(a)    this Certificate of Determination and Statement of Reasons, and

(b)    Reply lodged by the second respondent and attached documents.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Andrew Paul Holyoak, was simultaneously employed by the first respondent, ISS Property Services Pty Ltd and the second respondent, Assetlink (23) Pty Ltd as a commercial cleaner. There is no issue the applicant suffered work-related hearing loss, with a deemed date of injury of 2 December 2021. There is also no issue that as a result of that hearing loss, the applicant requires hearing aids.

2. The applicant brings these proceedings seeking payment from the respondents of the costs of and incidental to the provision of hearing aids quoted by Freedom Hearing on 1 July 2021. He also seeks payment of lump sum compensation for his hearing loss.

3. The first respondent disputes that it was a noisy employer whose employment was in the nature of which the applicant’s accepted hearing loss was contributed to.

4. The second respondent admits that it was a noisy employer, however, both it and the applicant assert the first respondent was also a noisy employer.

5. There is agreement that regardless of the outcome of the liability dispute surrounding the first respondent, the applicant’s claim for permanent impairment compensation will be remitted to the President for referral to a Medical Assessor.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    whether the first respondent was a noisy employer, and

   (b)    if the answer to (a) is in the affirmative, the apportionment as between the respondents which flows from a finding that the first respondent was a noisy employer.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

2. The parties attended a hearing on 30 April 2024. At the hearing, the applicant was represented by Mr Stanton of counsel, instructed by Ms Faura. The first respondent was represented by Mr Murray, solicitor. The second respondent was represented by Mr Stiles of counsel, instructed by Mr Twemlow.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

   (a)    Application to Resolve a Dispute (the Application) and attached documents;

   (b)    Reply lodged by the first respondent and attached documents, and

   (c)    Reply lodged by the second respondent and attached documents.

Oral evidence

1. There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the first respondent was a noisy employer

1. The applicant set out the nature of his duties with the first respondent in his statement attached to the Application. Relevantly, the applicant said:

   “6.     I was employed on a permanent part-time basis to work 3.5 hours per day. However, I also usually did four hours of extra work per day, but on ‘casual’ rates. All up, I worked 7.5 hour days. I worked five days per week.

   7.     During my time at ISS, I worked at Camden Haven High for 3.5 hours in the morning, and then following this, I worked an additional four hours at Kendall Primary School.

   8.      I was not exposed to any loud noise when working at Kendall Primary School. I did not use any powered machinery in the course of this cleaning work. My duties involved general tidying and cleaning around amenities, which was all done by hand.

   9.      My duties at Camden Haven High did expose me to noise.

   10.    The only source of noise was from the backpack vacuum cleaner which I used for two hours each morning. I do not know the make or model of the vacuum cleaner.

   11.    I vacuumed the library and classrooms.

   12.    The backpack vacuum made a constant high-pitched piercing noise, like a very high volume squeal. It was extremely noisy. Talking to someone a metre away from me with the backpack vacuum on was not possible without yelling, so it was much more practical to turn the machine off if I had to communicate.

   13.    Other than the backpack vacuum cleaner, I did not use any other noisy equipment.

   14.    I was not provided with hearing protection by my employer. Instead, I bought my own sound buffering earplugs to use when vacuuming after Dr Fagan recommended I do to save what hearing I had left.”

2. The first respondent provided statement evidence from lay witnesses as to the equipment used by the applicant, the duration of its use by him and the noise associated with it. Of most significance was a product description and user and safety guide for the SuperPro 700 backpack vacuum cleaner which the applicant used in the course of his employment. That user guide noted the vacuum cleaner had a weighted emission sound pressure level measured at a distance of 1.5m of 67 dB(A) plus or minus 3 dB(A). There is no objective evidence which contradicts that reading, though the applicant’s independent medical examiner (IME) provides an opinion on the likely noise levels of the vacuum cleaner at issue.

3. The respondent provided a statement by Michael Green, client service supervisor for the first respondent. Mr Green provided the following relevant evidence:

   “9.     The claimant commenced employment with the insured in 2019 as a cleaner. He was a casual cleaner to begin with, and worked at several locations. He was appointed permanent part-time in May 2021 and worked at Camden Haven High School from 5:00 am to 8:30 am and at other sites as required, Monday to Friday. In 2021, he continued to work at the school and commenced working at Kendall Public School from 10:00 am to 2:00 pm, Monday to Friday…

   14.    The claimant’s duties at the school were typical cleaner’s duties, including vacuuming, mopping, dusting, emptying rubbish bins, cobwebbing and other duties.

   15. The claimant cleaned the Admin and Distance Education Building (Block B), other internal areas and the barbecue area until June 2022. He then cleaned Block A and the gym until he ceased employment.

   16.    Based on the areas he cleaned, I approximate that it would have taken him around one and a half hours to vacuum each day, perhaps less when he cleaned Block B, other internal areas and the barbecue area until June 2022.

   17.    The claimant did not appear to have any trouble hearing when I spoke to him in general conversation throughout his employment with the insured.

   18.    The claimant would not have used the vacuum cleaner continuously. He was able to rotate his duties and perform them interchangeably throughout the shift. For example, he generally would wipe, vacuum, dust and perform other duties in one room, then go to the next. He was allowed to take short breaks when required.

   21.    The only electrical equipment the claimant used was a vacuum cleaner. It was a corded backpack vacuum cleaner. The brand was PackVac. I do not know its specifications, including the noise volume emitted.

   22.    I do not know the level of noise emitted by the PackVac vacuum cleaners. They do not make a constant high-pitched piercing noise.

   23.    I have used PackVac vacuum cleaners. One can have a conversation next to someone with the vacuum cleaner turned on, however, it is a little difficult to hear clearly. It is more comfortable to have the conversation with the vacuum cleaner turned off.”

4. For the applicant, Mr Stanton noted that although there was a variance in the evidence between Mr Green and the applicant, the effect of both statements was a concurrence that there was some difficulty hearing while the vacuum cleaner was being operated. Moreover, Mr Stanton made the salient point that although the vacuum cleaner had tested at a noise rating placing it within the safe range from a distance of 1.5m, it was far closer to the applicant’s ears when it was strapped to his back.

5. The applicant and first respondent each submitted the evidence disclosed the vacuum cleaner was sufficiently noisy for the employment with the first respondent to be classed as noisy.

6. The respondent relied on the medical opinion of IME Dr Fagan, who provided two reports.
   Dr Fagan’s first report dated 18 November 2021 contains a plainly incorrect history, a fact which Mr Stanton quite appropriately conceded. The report noted the applicant as being exposed to noise with the first respondent from a number of different machines, however, the applicant concedes the only alleged noisy item in the first respondent’s employ was the backpack vacuum cleaner. It is difficult to ascribe much weight to Dr Fagan’s opinion with regards to noisy employment contained in his first report, given the history upon which he based it was so manifestly incorrect.

7. Nevertheless, Dr Fagan’s second report does correct the history with regards to the equipment to which the applicant was exposed, relying solely on the relevant backpack vacuum cleaner. In his second report dated 22 May 2023, Dr Fagan was specifically asked whether the tendencies, incidents or characteristics of the applicant’s employment with the first respondent were of a type which could give rise to a real risk of hearing loss, Dr Fagan replied:

   “During his employment with ISS Property Services as a cleaner performing 7.5 hours of daily work, he was exposed to the noise of a backpack vacuum cleaner for two hours daily, producing a constant high-pitched, piercing noise. He described needing to ‘yell’ to communicate at a distance of one metre, which indicates ambient noise levels of 100 dB(A). More than 15 minutes of exposure to 100 dB(A) is sufficient to cause permanent hearing loss, and Mr Holyoak used this machine for two hours daily. Accordingly, I agree with Dr MacArthur that his employment with ISS Property Services had the ‘tendencies, incidents or characteristics’ of injuriously noisy employment.”

8. Dr MacArthur, IME, provided a report for the second respondent dated 8 August 2022 in which he described the applicant as having been exposed to the noise of scrubbing machines, high pressure cleaners, heavy duty vacuum cleaners, backpack vacuum cleaners, ride on sweepers and gas buffing machines. Dr MacArthur opined the applicant’s last noisy employer was the first respondent. As with Dr Fagan’s first report, Dr MacArthur plainly has an incorrect history of the machinery used by the applicant whilst in the employ of the first respondent, and I place no weight on his opinion given the very important inaccuracies in the history upon which it is based.

9. The difficulty with the applicant and second respondent’s assertion as to the employment with the first respondent being noisy is there is no evidence to contradict the backpack vacuum cleaners’ noise rating being around 67 to 70 dB(A). Although I accept Mr Stanton’s submission that the noise level from the vacuum cleaner would be higher than the level recorded at 1.5m while it was placed on the applicant’s back, there is no evidence which aside from Dr Fagan’s opinion which places the level of noise within the range of that of noisy employment.

10. I note the applicant indicates the vacuum cleaner provided a constant high-level piercing noise. That evidence is refuted by Mr Green. Although I accept the applicant as a witness of truth, I likewise am of the view that Mr Green’s evidence is also truthful. Mr Stanton noted that the vacuum cleaner may well be old or have some defects, however, there is no evidence that this is the case.

11. The applicant has the onus of establishing noisy employment. Dr Fagan indicates that the applicant needing to yell to communicate at a distance of 1m would indicate ambient noise levels of 100 dB(A), however, it is apparent Dr Fagan did not have before him the relevant product and training manual for the vacuum cleaner at issue which lists its sound pressure level well below the 100 dB(A) margin which he opines was the level at which the machine operated.

12. As indicated, although I believe the applicant is doing his best, I prefer the evidence of Mr Green concerning the noise levels associated with the backpack vacuum cleaner at issue. The applicant was simultaneously employed by the first and second respondents and carried out repeated and strenuous cleaning duties. It is apparent there was some confusion as to the nature and extent of the duties between the parties when the applicant first provided a history to the various IMEs in this matter. That is not a criticism of the applicant, rather it is an understandable natural human failing that one’s memory can become somewhat unreliable when trying to reconstruct (using that term in a neutral sense) events leading up to the onset of an injury or injurious condition. Accordingly, I prefer the evidence of Mr Green as to the noise levels of the vacuum cleaner at issue.

13. Given Dr Fagan’s opinion in his second report is based on what I have found to be an unreliable history provided by the applicant as to the noise levels of the vacuum cleaner, I am not persuaded by Dr Fagan’s views.

14. On balance, having regard to all of the medical and lay evidence in this matter, I am not satisfied that the applicant has demonstrated the first respondent was a noisy employer, and accordingly, there will be an award for the first respondent on the applicant’s claim against him.

Further conduct of the proceedings

1. Given the above liability findings, it follows that the second respondent was the last noisy employer of the applicant.

2. No party at the hearing disputed the applicant’s reasonable need for the hearing aids as quoted. The dispute in the matter related solely to which of the respondents would be ordered to pay for them.

3. In accordance with the above liability findings, the second respondent will be ordered to pay the costs of and incidental to of those hearing aids.

4. The claim for permanent impairment compensation will be remitted to the President for referral to a Medical Assessor to determine the degree of whole person impairment arising from the applicant’s employment with the second respondent. In accordance with the submissions of the parties at the hearing, the first respondent’s Reply will not be forwarded to the Medical Assessor for consideration, as the attachments to that pleading go only to the question of the first respondent’s liability and are not relevant to the matters to be considered by the Medical Assessor.

SUMMARY

1. For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.