Honchera and Comcare (Compensation)
[2016] AATA 33
•29 January 2016
Honchera and Comcare (Compensation) [2016] AATA 33 (29 January 2016)
Division
GENERAL DIVISION
File Number(s)
2014/0213
Re
Edmund Honchera
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Gary Humphries
Date 29 January 2016 Place Canberra The decision under review is affirmed.
............................[sgd].........................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – Commonwealth employees – claim for hearing loss and tinnitus – whether injury or disease – whether contributed to, to a significant degree, by employment – decision under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7.
Cases
Dunn and Military Rehabilitation and Compensation Commission [2012] AATA 672
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
O’Kane and Comcare [2013] AATA 722
O’Kane v Comcare (2014) 221 FCR 482
Sandercock and Military Rehabilitation and Compensation Commission [2013] AATA 517
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
Deputy President Gary Humphries
29 January 2016
Background
Mr Edmund Honchera has been driving ACTION buses for 30 years, but in recent years has developed some hearing loss. He has difficulty understanding speech against background noise, on television or over the telephone. He has also developed bilateral tinnitus. He is 66 years old.
Mr Honchera has brought a claim for workers’ compensation against his employer because he believes that his binaural hearing loss is related to loud noises he has been exposed to during his time with ACTION. For example, at ACTION’s Kingston depot, which was enclosed, he would frequently be required to move around between buses as their engines were being started up in the morning. He also points to other noises which were part of his employment: trucks and motorcycles on the road, 2-way radio noises, the noise made by schoolchildren on school runs, rattling chassis and engine noises. In particular, he points to the noise made by ACTION’s so-called 301 Trams, modified trucks which ran a route through Canberra’s Civic centre during the 1990s and which he frequently drove.
His claim is for compensation under ss 14, 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). On 15 October 2013, Comcare denied liability for Mr Honchera’s hearing loss under s 14, a decision which it reconsidered but affirmed on 19 November 2013. On 16 January 2014, Mr Honchera applied to have that decision reviewed by this Tribunal.
At the initial hearing of this application on 14 and 15 May 2015, Mr Honchera sought to bring his claim under the provisions of s 7(2) and (3) of the Act. Section 7(2) is set out below.
The applicable law
Section 14 of the Act provides as follows:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In turn, “injury” is defined in s 5A, as follows:
(1) In this Act:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment…
Section 5B defines “disease”:
"disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
In relation to the question of whether an employee’s disease has been contributed to, to a significant degree, by his or her employment, s 7(2) provides for a shifting of the burden of proof in certain circumstances:
Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed.
Section 7(3) contains similar provisions dealing with an employee who suffers an aggravation of a disease.
Section 24 sets out an employee’s entitlements to compensation for permanent impairment arising from an injury, and s 27 makes equivalent provisions for an entitlement to compensation for non-economic loss consequent on permanent impairment.
The issues to be determined
The issues which it falls to the Tribunal to determine are:
(a)whether Mr Honchera’s hearing loss and tinnitus each qualify as an injury (other than a disease) or a disease, pursuant to s 5A. In turn, the Tribunal must determine:
(i)for either condition to qualify as an injury (other than a disease), whether it arose out of, or in the course of, Mr Honchera’s employment; or
(ii)for either condition to qualify as a disease, whether it was contributed to, to a significant degree, by his employment;
(b)if Mr Honchera contracted a disease under s 5A, whether the provisions of s 7(2) or (3) are triggered to shift the burden of proof;
(c)whether Comcare is liable to pay compensation for permanent impairment under s 24;
(d)whether Comcare is liable to pay compensation for non-economic loss under s 27.
Although there was some evidence at the hearing that there may have been some other, underlying condition which may have affected Mr Honchera’s hearing, this condition was not identified or diagnosed by the medical witnesses. Accordingly, the Tribunal proceeds on the assumption that the various provisions dealing with aggravation of an ailment or an injury are not relevant in this instance.
Mr Honchera’s working conditions
Though he began his work with ACTION in 1983 as a bus operator and washer, most of Mr Honchera’s time with this agency has been as a full-time bus driver. He first began work at the Woden bus depot, which had a tin roof but was an open air facility. As a bus driver, he alternated between eight and 10 hour shifts. He gave evidence that, at the beginning of the shifts, a number of buses were sometimes started and allowed to idle, to warm them up. He and other drivers would move between the buses at that time, preparing them for departure. The environment was noisy and conversation was difficult. In that environment he would have to speak very loudly to be heard. Hearing protection was not provided to Mr Honchera during his working life.
He sometimes did school runs from the Woden depot. He might do one in the morning or one in the afternoon. He would also sometimes do charter runs. He first began by driving Volvo and Leyland buses, followed later by MANs. They were not, in those days, air-conditioned and the driver would often open the window in warm weather. About a month after starting at the Woden depot, Mr Honchera moved to the Kingston depot. This depot was enclosed, and so was more smoky and noisy than other depots in Canberra. After a month there, he moved to the Belconnen depot and then rotated between the various depots over the subsequent year. After that year, he was based at the Belconnen depot, where he still works. Over those years, Mr Honchera drove Mercedes buses, Macks, PR1s, PR2s and PR3s, Iris buses, Dennis Darts, Scanias and the MAN Euro 5. Each of these was about 10 metres long and had a rear engine.
He also drove the 301 trams. The evidence was that there were three such trams in service. Mr Honchera drove them every second week, on eight hour shifts, doing the giddy run around Civic. Being in the built up area of the city, it was stop and go, stop and go all the time. He drove them for about three years. During this time he also did some school runs, sometimes in the morning, sometimes in the afternoon, sometimes both. He testified that these runs were always pretty noisy.
In early 1998, a Provisional Improvement Notice was issued against the 301 trams under s 29(1) of the Occupational Health and Safety (Commonwealth Employment) Act 1991. The notice nominated, as matters contravening the Act or its regulations in relation to the trams, Noise – Heat – Stress. Attached to the notice was a document setting out noise readings purportedly made in relation to two of the trams. For Tram One, it indicated a constant reading in the driver’s cabin during acceleration of 94 dBA and a peak reading of 100 dBA. There was a peak reading for the handbrake of 124 dBA. In relation to Tram Three, the acceleration constant reading in the driver’s cabin was 85 dBA and the peak reading was 100 dBA. The peak reading for the handbrake was 90 dBA.
A report relating to occupational noise exposure (the Robson report) was tendered by Comcare. Commissioned from Robson Environmental Pty Ltd and dated variously December 2010 and 17 January 2011, the report was authored by Mr Peter Kuhlmann. The report contains the results of noise testing on ACTION buses in November and December 2010, involving 99 drivers based at three bus depots in the ACT. The report purports to show that measurements of noise, conducted generally through devices placed on the shoulder of the driver, were generally below the national standard for exposure to noise in an occupational environment (eight hour equivalent continuous A-weighted sound pressure level, LAeq,8h, of 85 dBA). Of 86 shifts sampled, only two exceeded the national standard, and a further six exceeded the 80 dBA level. Both the samples exceeding the national standard occurred on a school run.
Mr Kuhlmann, the Tribunal was told, had moved to the United States and was unavailable to give evidence in relation to his report. The Tribunal entertained but rejected an application from Mr Honchera to not take the report in evidence on this basis. Further comment on the weight the Tribunal chooses to give the Robson report in these circumstances is provided below.
It is also noted that, as a younger man, Mr Honchera owned and occasionally used a .22 rifle.
The medical evidence
There was evidence that Mr Honchera’s hearing was tested before he began work with ACTION, and annually thereafter. For many years there was no report by his GP of any issues with his hearing. Mr Honchera could not recall exactly when he became aware of an issue with his hearing; it was a gradual thing. It is now difficult for him to follow conversations. He testified that the ringing in his ears caused by the tinnitus is constant, making it worse than the hearing loss. It interferes with watching television and movies, and it also causes him to wake at night, despite taking medication to help him sleep. He said that he would generally wake at about 1am and be unable to return to sleep.
Evidence was given by Dr Joseph Scoppa (called by Mr Honchera) and by Dr David Matison (called by Comcare). Both doctors, when asked to express an opinion as to whether Mr Honchera’s condition was best described as an injury or one of gradual onset, indicated that it was best described as an ailment (i.e. the latter – a disease for the purposes of s 5A). Dr Scoppa diagnosed induced industrial deafness in both ears, with a further loss in the right ear of unknown cause. Dr Matison said I can’t make a definitive diagnosis in this case, having received conflicting evidence about Mr Honchera’s condition. He pointed out that Mr Honchera has recently experienced steadily deteriorating hearing under relatively quiet working conditions, so there is another factor involved. He observed that noise induced hearing loss ceases to progress once the offending noise itself ceases. Having thus discounted occupational causes, he was unable to say what was causing the further deterioration in Mr Honchera’s hearing.
The doctors gave evidence of the general conditions required to produce hearing loss. They agreed that the higher the noise level, the shorter the period that is necessary before damage is done to the ear. Dr Scoppa said that with a weighted average exposure of 88 dBA, the safe exposure limit is four hours, but at 91 dBA it is two hours. He said that the acceptable period of exposure halves with every increase of three dBA. At 140 dBA there is instantaneous damage to your hearing potentially.
It was put to the Tribunal that the appropriate or safe level of noise exposure is a weighted average of 85 dBA over an eight hour day. This was based on the exposure standard for noise contained in Safe Work Australia’s Managing Noise and Preventing Hearing Loss at Work Code of Practice, dated December 2011. Both doctors agreed however that people react differently to noise. Dr Scoppa suggested that five percent of the population will suffer from hearing loss if the weighted average is just 80 dBA over an eight hour day. An apparent difference between the doctors emerged with respect to the way in which the period of noise exposure is to be measured. Dr Matison indicated that noise should be measured on a dosage basis, so that exposure is averaged over a given period of time. As an example, he said that a worker exposed to an average 85 dBA noise intensity over a working week but who was not exposed to that intensity in alternate weeks could be said to have an effective noise dosage of less than 85 dBA. Dr Scoppa, by contrast, emphasised that, if noise levels exceed the safe level on any particular day, such exposure is capable of causing hearing damage, irrespective of the averaged dosage.
Consideration
Are Mr Honchera’s conditions injuries or diseases?
Mr Honchera gave evidence that his hearing loss was a gradual thing, not a sudden event. He first obtained an assessment of his hearing loss through Dylans Hearing Pty Ltd on 14 June 2012 and the Tribunal finds that, if there is an injury relating to hearing loss, it occurred – for the purposes of s 7(4) at least – on that date. Similarly, the first evidence of his obtaining medical treatment for his tinnitus was his consultation with his GP, Dr Tim Watson, on 30 July 2012, and that date will thus serve as the date of any injury relating to his tinnitus.
Assuming for the moment that the necessary causal connection specified in the Act between his conditions and his employment can be established, the question arises of whether each condition is an injury (other than a disease) or a disease. In both Sandercock[1] and O’Kane[2] the Tribunal characterised hearing loss occurring over an extended period as an injury. In the former case the Tribunal found that tinnitus could be either an injury or disease, and in the latter case found that it was, in that instance, an injury.
[1] [2013] AATA 517.
[2] [2013] AATA 722.
In O’Kane Senior Member Prof Creyke made these comments in relation to the hearing-related conditions of the applicant, himself an ACTION bus driver (at [52]-[53]):
The claim is that his hearing loss was due to loud continuous noise from driving buses in combination with the effects of ageing, and possibly a familial disposition to hearing loss, alongside the injury from the assault in 1996. That means that Mr O’Kane’s hearing loss is due to combined effects which are categorised differently. The assault, a ‘sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’, and the ‘loud continuous noise’ from driving buses which damages the sensitive hair cells of the inner ear, perpetuated and worsened over the period of his driving noisy buses and the 301 tram would both be ‘injuries’. The age-related and familial predisposition would be characterised as slowly degenerating or congenital conditions and hence, if employment-related, would be ‘diseases’.
Since it is the contribution of the former categories including hearing loss from bus driving, which are being considered in this claim, the Tribunal finds that Mr O’Kane’s hearing loss relates to an ‘injury’, namely, the damage to the sensitive hair cells of the inner ear.
If Prof Creyke is to be construed as finding that continuous exposure to loud noises at work amounted in the particular circumstances of this case and of Sandercock to a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state (using the test articulated by the High Court in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at [39]), then I take no issue. If however Prof Creyke was postulating a general test of how best to characterise continuous exposure to noise at work, I demur. In the opinion of the Tribunal as presently constituted, hearing loss resulting from exposure to industrial noise exceeding safe levels over extended periods of time is best characterised as a disease. It is true that any individual contributing event over that period – say, a squealing brake or a screaming child – might amount to sudden damage to sensitive hair cells of the inner ear, but it is the cumulative effect of many such incidents that characteristically leads to industrial hearing loss. Indeed, it might be said that any ailment …that was contributed to, to a significant degree, by the employee's employment will be in the nature of numerous tiny traumas caused by the workplace which build up to the onset of the disease. For example, a worker who inhales harmful fibres at work suffers, in a sense, a small injury with each intake of breath but the outcome, eventually, is a disease such as mesothelioma, not an injury.
In any case, the medical evidence led by both sides here agreed that Mr Honchera’s conditions were ailments of gradual onset – that is, diseases. Mr Honchera himself did not point to any sudden or dramatic events which might be characterised as injuries. Accordingly, the Tribunal finds that his conditions should be considered diseases pursuant to s 5B, provided the other conditions in the legislation are met.
Were Mr Honchera’s conditions contributed to, to a significant degree, by his employment?
The most significant of those other conditions, as set out in s 5B, is that his diseases (hearing loss and tinnitus) were contributed to, to a significant degree, by his employment with ACTION. In this respect, Mr Honchera claims to have been exposed to loud noises throughout the course of his employment. He points particularly to the noise at the Kingston depot which, being enclosed, magnified the sounds of multiple buses being started up at the beginning of shifts and which he needed to move between on a daily basis. He points also to the noises inherent in the job of a bus driver: road noises, other vehicles, noisy schoolchildren, wind, rattling chassis and engine noises and the like. In particular, he drew the Tribunal’s attention to the noisy 301 trams which he drove for several years and which were retired by ACTION in 1998, apparently in part because of their noisy operation. In support of the contention that this has led to hearing loss, he relies on the finding of Dr Scoppa that he has a 20.6 percent binaural loss of hearing, after correcting for presbycusis.
The Tribunal observes that demonstrating work-related hearing loss, in the absence of particular traumatic events, is highly problematic in occupational groups such as bus drivers. At no point have the actual noise levels experienced by, or close to, Mr Honchera’s ears while at work been measured; I daresay this would be true of every claimant of hearing loss arising from driving buses. Accordingly, the best an applicant such as him can do is lead evidence of the general experience of drivers in similar circumstances and extrapolate those circumstances to himself.
In the present case, it must be said that the state of the evidence relating to the general experience of drivers at ACTION during the period in question is quite unsatisfactory. There are two reports relating to noise experienced on ACTION buses, and each falls well short of what might be regarded as quality evidence. Counsel for Mr Honchera levelled a number of criticisms at the Robson report, relating in particular to its methodology, its authorship and its conclusions. For example, ancillary reports prepared in connection with the Robson report were not provided to the Tribunal. These apparent lacunae and deficiencies are matters which might have been explored if the report’s author had been available for cross-examination; the fact that he was not must go to the weight to be appropriately attached to it.
But even if the Robson report was regarded as an accurate portrayal of the noise environment on ACTION buses generally, it fails to answer crucial questions facing the Tribunal in that it deals only with those buses in service at the end of 2010. It is reasonable to suppose that buses driven by Mr Honchera in the nearly three decades prior to the point when these measurements were undertaken, being older models, were noisier than more contemporary models. But no evidence was furnished – other than anecdotal references to having to shout to be heard in the bus depots – about the nature of that noise profile. In particular, the 301 trams – said to have had a particular impact on Mr Honchera – were not measured by the report as they had been retired more than a decade before.
The one report which did measure noise levels on the 301 trams itself leaves much to be desired. The Provisional Improvement Notice dated 2 January 1998 refers to apparently high noise levels on these vehicles, with a peak reading of 124 dBA in the driver’s cabin when the handbrake was applied. The constant reading in the driver’s cabin for acceleration in Tram One is well above the national noise standard. However, the provenance of this Notice is not clear. The noise measurements appear to have been carried out by two delegates of the union; their qualifications to do so and the methodology they used is unknown. There is no raw data on the decibel readings, no indication of how close to the driver’s ear the readings were taken and no evidence of any calibration of the testing devices. If doubts about the methodology and authorship of the Robson report lead to its weight being discounted, the same considerations should apply to the Provisional Improvement Notice. Even if the measurements in the PIN can be considered accurate, there was no evidence available of Mr Honchera’s average exposure per day or per shift to particular noise levels. As the 301s operated primarily in the city centre, where there are only short distances between traffic lights, it might reasonably be supposed that periods of acceleration and braking were relatively brief and frequent – but this is supposition. There was no indication of whether Mr Honchera tended to drive Tram One, the noisier tram, or Tram Three, the noise levels for which were substantially lower, or Tram Two, for which no noise measurements exist.
Notwithstanding the asserted limitations of the Robson report, Mr Honchera’s counsel sought to rely on those parts of the report which suggested noise exposure for drivers above the national standard. For example, reference was made to high noise readings on two school runs. Those readings were referred to as outliers by counsel for Comcare. To the extent that these readings demonstrate that buses in service in 2010 were capable of delivering readings above the national standard, they provide slight assistance to Mr Honchera. But weighing against that view is that the two school runs in question emanated from the Tuggeranong depot, at a time when Mr Honchera’s shifts had long been based at Belconnen.
Into this evidentiary void Mr Honchera seeks to introduce the evidence of Dr Scoppa. Dr Scoppa is dismissive of the Robson report. He is also firm in his view that Mr Honchera’s hearing loss is the product of noise exposure in a workplace setting. This opinion is based on a history of occupational noise exposure over many years. For this conclusion he draws both on Mr Honchera’s own description of the level of noise at ACTION and on the Robson report, notwithstanding that he asserts there are flaws in it. In relation to Mr Honchera’s own account of noise levels, Dr Scoppa makes this observation in a report of 23 April 2014:
It is well established that if a worker has to raise his or her voice to be heard by someone standing about one metre away, there is a prima facie case of a noise level that is potentially hazardous to hearing. My understanding is that such description is consistent with a sound level of above 85 dBA probably being present at the time, and therefore capable of causing industrial deafness over an 8 hour period, or its equivalent.
Dr Scoppa pointed out in his evidence that the period of exposure to hazardous levels of noise is also an important factor. He noted that the national standard suggests that exposure to 85 dBA over an eight-hour period per day is the maximum level of safe exposure for the average person. His conclusion – that Mr Honchera suffered industrial deafness because he worked in an environment where he needed to raise his voice to be heard by a person one metre away – seems to rest on the assumption that this noise state endured throughout much of the working day. But the evidence is not consistent with this assumption. Mr Honchera certainly indicated that raised voices were necessary in the Kingston depot while the buses were warming up at the start of a shift, but he also gave evidence that he was able to have conversations with passengers boarding his bus without shouting. Even on the noisy 301 trams, peak readings in the driver’s cabin while the bus was idling was at or below 85 dBA, and the constant or average reading was well below this figure. It is possible that at various points in his working life Mr Honchera was working shifts where the noise dosage was at or above 85 dBA, but this really amounts to conjecture.
In Treloarv Australian Telecommunications Commission (1990) 26 FCR 316, the Federal Court made the following comments in relation to the connection in legislation between a claimant’s condition and the contribution made by his or her employment (at 323):
The use of the word "material" in conjunction with the words "contributing factor" in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture.
As originally enacted, the Act required an applicant to show a material contribution by his or her employment to a condition for it to be compensable. Legislative amendments in 2007 raised that threshold to a significant contribution (s 5B(3)).
It is well established that no onus of proof lies on an applicant for review in the Tribunal to show any particular state of affairs necessary to support his or her application exists. However, in a matter such as the present one it is necessary for the Tribunal to be satisfied on the balance of probabilities that the applicant’s diseases were contributed to, to a significant degree, by his employment. It is inherently unlikely that the threshold set in s 5B – contribution to a significant degree – will be met when the only available evidence of a contribution is speculative or conjectural. That description does seem to characterise the matter currently before the Tribunal.
Mr Honchera faces another difficulty in reaching that threshold. The test of employment contributing to a significant degree to the existence of a condition imports a notion of cause and effect; so excessive noise must be found to have significantly contributed to the existence of the conditions claimed for. Even if one were to accept that the noise environment in which Mr Honchera worked was sufficiently hazardous to produce that cause, some doubt must be entertained as to whether the conditions he suffers from were actually the outcome of that environment, as opposed to other factors.
Three factors give rise to that doubt. Dr Scoppa made reference to a condition called temporary threshold shift. This, he said, is where some exposure to noise leads to temporary symptoms of hearing damage, but where a person recovers over a short period. He said that a pattern of repetition of that noise however can convert temporary threshold shift into permanent threshold shift, i.e. permanent hearing loss. Although his evidence did not suggest that this is the only way noise exposure leads to permanent hearing loss, it is significant that Mr Honchera gave no evidence of any temporary threshold shift as a result of exposure to noise in his workplace. He reported no hearing problems to his GP over several years. Indeed, he did not appear to appreciate a problem with his hearing until someone suggested he undergo a hearing test.
The second factor is that Mr Honchera’s hearing has steadily deteriorated even after his supposedly noisy work environment has been ameliorated. His tinnitus, in particular, has gone from non-sleep disturbing in September 2013 to being very disruptive of his sleep as at the date of hearing. Although Mr Honchera still drives ACTION buses, he no longer works at an enclosed depot, he no longer drives school runs or front-engine buses and the 301 trams have long been retired. Dr Matison observed that noise induced hearing loss ceases to progress once the offending noise itself ceases. He gave evidence that Mr Honchera’s hearing is continuing to deteriorate at a rate that is not explained by simple ageing. This led him to tell the Tribunal that some other element, which he could not diagnose, was contributing to the decline of Mr Honchera’s hearing.
The third factor is that Mr Honchera’s deafness is bilaterally asymmetrical. His hearing loss is worse in his right ear. Dr Scoppa testified that industrial deafness is typically bilateral and symmetrical, though he also said that asymmetry was not uncommon. Dr Scoppa seems to account for the asymmetry by finding that there is an underlying level of hearing loss caused by his employment, with the additional loss in his right ear caused by some other, unknown factor. In contrast, Dr Matison seems to suggest that other factors may be entirely responsible for his hearing loss, saying noise exposure was at a very marginal level, and yet his hearing loss was disproportionately much greater than one would expect at that level.
It seems to the Tribunal that each of these assessments is equally plausible, and that the evidence before it is simply too thin to allow one assessment to be preferred over the other. This evidentiary stalemate does not assist Mr Honchera, in that the Tribunal must hesitate in such a situation to find that work-related noise has contributed to a significant degree to the conditions he suffers from.
Are the provisions of s 7(2) triggered to shift the burden of proof?
As indicated above Mr Honchera faces some difficulty in that it is doubtful that his diseases have been contributed to, to a significant degree, by his employment. However, that difficulty is overcome if his employment falls under the provisions of s 7(2). The effect of those provisions is that his diseases will prima facie be taken to have been contributed to, to a significant degree, by his employment if the incidence of those diseases among people who have engaged in that kind of employment is significantly greater than the incidence of those diseases among people who have engaged in other employment in the place where he is ordinarily employed.
The subsection creates a presumption assisting an employee where the incidence among fellow employees of a disease from which he or she suffers is significantly greater than the incidence of that disease among a broader class of workers. This was described during the hearing as a cancer cluster type of provision.
Unfortunately, the subsection does not define two key concepts. The kind of employment in which the applicant was engaged (or, to use the language of the subsection, any employment in which he or she was engaged… at any time before the symptoms of the disease first became apparent) is not defined. Nor is the notion of the place where the employee is ordinarily employed. Moreover, there seems to be a paucity of decided cases dealing with these terms.[3]
[3] Section 7(2) was considered, but found not to be relevant, in Ramsdale and Comcare [2011] AATA 40 and Franzi and Military Rehabilitation and Compensation Commission [2010] AATA 8. In neither case did the Tribunal articulate a test of the subsection’s operation. The only case of which I am aware in which s 7(2) was interpreted – Dunn and Military Rehabilitation and Compensation Commission [2012] AATA 672 – is too brief to throw any light on the question now before the Tribunal.
The parties here took differing views as to what the two provisions meant. Counsel for Mr Honchera argued that the appropriate comparison was between the incidence of hearing loss amongst drivers of the 301 trams and the incidence of hearing loss amongst drivers of ACTION buses generally. In contrast, counsel for Comcare argued that the comparison was between the incidence of hearing loss amongst bus drivers employed by ACTION and the incidence of hearing loss amongst people who work in the community where Mr Honchera’s depot was based, i.e. the Canberra township of Belconnen.
It is clear to the Tribunal that the place where the employee is ordinarily employed is not the same as a place of employment. Section 4 of the Act defines place of work to include any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment. The use of a different phrase in s 7(2) must imply that the term place where the employee is ordinarily employed is not the same as a place of employment.
Similarly, it seems to the Tribunal that interpreting persons who have engaged in other employment in the place where the employee is ordinarily employed as meaning, in this context, other bus drivers employed by ACTION is too narrow and outside the intention of the subsection. While conceding that the legislation is beneficial in nature, this interpretation of it seems to be particularly imprecise and even self-serving. One imagines that if this had been the intended interpretation the subsection would more likely have referred to persons employed by that employer in the place where the employee is ordinarily employed. As presently drafted, the subsection connotes something broader than this, however. The language is far from clear, but, on balance, the Tribunal prefers the interpretation advanced by Comcare.
Adopting this approach, there is some evidence of the incidence of hearing loss amongst bus drivers employed by ACTION or, at least, evidence of claims for work-related hearing loss amongst those drivers. The Tribunal heard that there had been some 1315 people employed as ACTION bus drivers since 2000, and that over this period some 15 claims for hearing loss had been accepted by Comcare. However, no evidence was submitted to the Tribunal of the incidence of work-related hearing loss among the population more generally, much less among the population of Canberra or of Belconnen.
On this basis, there is insufficient evidence to trigger the beneficial provisions of s 7(2).
Conclusion
The Tribunal is not satisfied, on the balance of probabilities, that Mr Honchera’s hearing loss and tinnitus has been contributed to, to a significant degree, by his employment with ACTION buses. The Tribunal finds that Comcare is not liable to pay compensation for permanent impairment or non-economic loss under ss 24 and 27 of the Act on the basis that Mr Honchera’s claimed hearing loss and tinnitus do not qualify as compensable injuries. Accordingly the Tribunal affirms the reviewable decision of 19 November 2013 denying liability under s 14 of the Act.
I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries .................................[sgd].......................................
Associate
Dated 29 January 2016
Date(s) of hearing 14-15 May 2015, 3 November 2015 Counsel for the Applicant Karl Pattenden Solicitors for the Applicant Canberra Legal Group Counsel for the Respondent Peter Woulfe Solicitors for the Respondent Australian Government Solicitor
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