JOHN JAMES and COMCARE
[2012] AATA 309
•22 May 2012
[2012] AATA 309
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/5180
Re
JOHN JAMES
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 22 May 2012 Place Sydney The Tribunal affirms the decision under review.
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Ms N Isenberg, Senior Member
CATCHWORDS
Workers' Compensation - Permanent impairment – industrial deafness related to industrial noise – whether Applicant sustained the injury in accordance with ss 4, 6 and 7 of the Safety, Rehabilitation and Compensation Act 1988.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – ss 4, 14, 16, 19, 24, 27, 28(4)
CASES
Comcare v Sahy-Khan (2007) 156 FCR 536
Shorey v PT Limited (2003) 197 ALR 410
REASONS FOR DECISION
Ms N Isenberg, Senior Member
BACKGROUND
1.The following facts were not in dispute:
a)On 8 October 1990 the Applicant commenced work for the Department of Transport (now known as the Department of Administrative Services (DAS)) as a truck driver. Prior to commencing employment with DAS, the Applicant was not aware of having suffered any hearing loss and had no family history of hearing loss. Before commencing employment with DAS, the Applicant underwent a pre-employment medical assessment.
b)In 1997 the Applicant lodged a claim for worker’s compensation for “deafness related to industrial noise”. There he recorded that he first noticed the effects of his hearing loss “a couple of years ago”. He wrote that he first sought treatment on the 28 August 1997 from Dr Sandra Miles and noted the injury occurred whilst employed as a truck driver, crane operator and forklift driver working around heavy machinery. His job included installing noisy RVA units in confined rooms over a number of years.
c)On 24 April 2009 the Applicant lodged a worker’s compensation claim for binaural hearing loss allegedly arising from his employment with the DAS. The Applicant attributed his injury to constant noise exposure in the workplace.
d)On 31 August 2009 liability was accepted for "sensorineural hearing loss (bilateral)” under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
e)On 15 September 2009 Comcare was requested to reconsider the decision. Comcare revoked its earlier decision and liability was denied under s 14 of the SRC Act.
f)The Applicant lodged an application for a review of that decision.
ISSUES FOR DETERMINATION
2.The issues for determination are:
a)Whether the Applicant sustained the claimed injury in accordance with s 4, 6 and 7 of the SRC Act (as the Act was, prior to amendments which took effect on 13 April 2007).
b)Whether the Respondent is liable to pay compensation to the Applicant for the claimed injury under s 14 of the SRC Act.
LEGISLATIVE FRAMEWORK
Section 4 of the SRC Act defines “disease” and “injury” as follows:
4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“injury” means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
Section 14(1) of the SRC Act provides for liability for compensation for injured workers, and s 16 provides for reasonable medical expenses to be paid in that regard.
14 Compensation for injuries
14(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.
EVIDENCE OF APPLICANT
On 4 May 2011 the Applicant provided a statement noting that he had worked as a truck driver for several companies between 1979 and 1990, but had not suffered any hearing loss during that time.
He stated that during his employment with DAS he was required to drive trucks, lift and carry furniture, use cranes and forklifts to lift heavy furniture and other objects such as safes, and install diesel powered generators into telephone exchanges. He went on to describe the noise conditions he was exposed to in that time: most of the work involved noise exposure, especially installing generators which were very noisy as they were in a confined space. He was also exposed to the noise of semi-trailer engines, exhausts, power tools and heavy industrial machinery.
In his evidence the Applicant said that prior to his role at DAS he had a number of jobs: delivering fuel to service stations and industrial sites; working as a forklift driver; truck driving for a sheet steel company; and delivering office furniture. He denied that his work driving forklifts was reasonably noisy because it was a very small forklift. He agreed that, in addition, he had worked as a sheet metal worker for a period of eight months. However, he said that work was “not extremely noisy”, only “noisy” because he was just sweeping up in a brick and tin shed – a shed similar to that which he worked at DAS.
Up until he joined DAS he was not aware of having any hearing loss. He undertook an entry medical but could not recall if it entailed a hearing check.
At DAS he was in the heavy lift section, working in a large metal warehouse at Villawood as a forklift and crane driver. Trucks would come into the warehouse to be loaded by forklift or crane. The warehouse was “very noisy”, with a vibrating noise coming off the steel walls.
Once a month or so, but at least every two or three months, he would deliver generators, which weighed between a quarter of a tonne to over 20 tonnes, to Telstra exchanges. At the delivery site there was always another motor in the generator room making it a “very deafening environment”. The installation process varied between two hours and six to eight hours. Sometimes they would come back the next day to complete the installation. He acknowledged in cross-examination that by 1990 Telstra had an extensive fleet of its own vehicles, including heavy transport vehicles but, he said, while Telstra did some installations, DAS did others.
Deliveries were sometimes far afield such as to Tamworth, trips of six to seven days at a time. The semi-trailers varied between six and 40 tonne. It was “very noisy” driving the semi-trailers but not as bad as being in the Telstra buildings.
Another example of heavy transportation included delivering trucks to Darwin on the back of another larger truck, which the Applicant did a couple of times. He described the noise in the truck as being “very noisy”.
Another task, which occurred over a dozen times, was to use a forklift to load trucks with antennae for airports. He also made the delivery of the antennae and installed the antennae on the airfield as planes were going by.
From about August 1995, for a couple of months, the Applicant spent some time in one of the small offices attached to the warehouse when, after a knee injury, he was made removalist foreman. From there he organised the trucks and the labour for the furniture removals from the warehouse. His work was only noisy when in the warehouse or if he had to go underneath buildings to load or unload because there were cars and trucks going by.
Earmuffs were never worn.
The Applicant agreed in cross-examination that the noise exposure of which he complained did not occur every day.
The Applicant first became aware that he had a hearing problem when his wife kept asking him why he was turning the television up so loud. He thought that was in 1997. It was a gradual thing. It was at least a couple of years later that he went to his general practitioner, Dr Miles, who sent him to a hearing specialist, who, from his account, performed an audiogram. The Applicant could not recall who the specialist was and he does not have a copy of the audiogram.
The Applicant made a compensation claim in 1997 or 1998 but heard nothing back. He did not follow it up. In cross-examination he was shown a copy of a “with compliments” slip forwarded to him by DAS on 26 September 1997 informing him that his claim form was being returned because Comcare required the claim to be accompanied by a supporting statement. He could not recall having seen the slip before.
The Applicant made another claim in 2009 because he could hardly hear people talking to him, especially if the television was on. He was referred in cross-examination to his claim form in which, in answer to the question: “When were you injured or when did you first notice you were ill?” he wrote 24 April 2009 and wrote that he first sought medical treatment on 23 March 2009.
The Applicant went to see Dr Lucchese at the request of his solicitors in November 2007, about a year and a half prior to completing the current claim form. He agreed in cross-examination that he told the doctor he had worked as a truck driver for many different companies for some 46 years in total. He also agreed that he told the doctor that throughout that time he was exposed to the noise of large truck engines and exhausts, as well as heavy machinery. He did not remember that when he saw Dr Lucchese in 2007 he told him that he had noticed progressive hearing loss in both ears for many years, but agreed that if it was recorded in the doctor’s report, it must be what he said.
The Applicant agreed he had told Dr Dowe that he had always worked as a semi-trailer driver with large, powerful engines and worked with heavy industrial machinery and sometimes with power tools. He denied telling the doctor that he had worked in those conditions for most of his working life because he had only worked with machinery at DAS. He agreed he told Dr Dowe that he had been exposed to truck noise for most of his working life. He did not recall that he told Dr Dowe that he first noticed deafness in both ears from the early 1990s.
In cross-examination the Applicant was asked about the contention that his pre-DAS employment as a truck driver for over 20 years involved driving trucks with a sealed cabin and therefore did not involve exposure to loud noise. He agreed that he drove various types of trucks for over 20 years or more prior to his employment with DAS. Some had the cabin situated directly on top of the engine or out in front of the cabin. Those with the cabin on top of the engine were all insulated underneath, for both heat and noise. Not every truck he drove over that period was air conditioned and when it was hot, he would wind the windows down. He denied this would increase the noise in the cabin because the exhaust was out the back. There was little engine noise, he said, because even in those days they were all well-padded. He agreed there was traffic noise.
The Applicant stated that during the period at DAS the various trucks he drove were all sealed cabin trucks, although a lot of them were fiberglass. They mostly had air conditioning, although at first he would open the windows to get fresh air.
He agreed in cross-examination that his previous truck driving work had sometimes included working at industrial sites, and involved the use of forklifts and cranes and other machinery. It was “reasonably noisy” but not as noisy as at DAS.
The Applicant was asked in cross-examination about having told a physiotherapist in January 1996 that his normal duties involved truck driving, providing quotes on office moves, and moving furniture and heavy machinery. He did not know if he said anything about installation of heavy diesel generators.
He also could not recall being seen in January of 1996 by Dr Wolrige of the Australian Government Health Service, and telling Dr Wolrige that he drove a truck and moved furniture. Notwithstanding that the review was in respect of his ability to return to work, he did not mention anything about heavy work such as installing generators.
OTHER EVIDENCE
Dr G Lucchese, ENT Surgeon
In a report dated 8 November 2007 Dr Lucchese noted an audiogram, dated 18 October 2007, showing a bilateral high tone sensorineural hearing loss of mild to moderate degree, with normal impedance studies bilaterally. Dr Lucchese considered, on the balance of probabilities, the Applicant's hearing loss in the low tones through to the high tones was attributed to exposure to industrial noise as detailed in the Applicant's employment history. Dr Lucchese calculated the binaural age-corrected compensable hearing loss was 16.0 per cent and was permanent with no medical or the fitting of binaural digital hearing aids.
In his evidence Dr Lucchese adopted his report, but adjusted the percentage whole person impairment to reflect the Comcare, rather than the NSW, table.
Dr Lucchese gave evidence that he had been given a history by the Applicant that he had worked for a total of 46 years as a truck driver, during which time he had been exposed to the noise of large truck engines as well as heavy machinery, and that he had never used hearing protection. He relied upon the history given by the Applicant in the absence of noise level testing in the workplace. On the basis of the history, he was fairly certain that the work the Applicant was doing was exposing him, over a period of six to seven hours per day five days a week, to a noise level which would be consistent with injurious noise exposure to the ears. He had experience of seeing similar levels of deafness in workers with a similar history of exposure to heavy machinery.
Dr Lucchese found the Applicant’s hearing loss was attributable to the whole of his exposure to noise over his working life rather than just the five years he worked for DAS. He agreed in cross-examination that he was more familiar with the NSW compensation system in which the last ‘noisy’ employer assumes the brunt of the hearing loss, unless there is a pre-employment audiogram.
Dr Lucchese also agreed, in cross-examination, that the degree of hearing loss which may relate to noise exposure depends not only on the level, or intensity, of that noise, but also on its duration and the proximity of a person's ears to the source of a noise. He agreed that scientific studies have shown that the rate of hearing loss due to chronic noise exposure is greatest during the first 10 to 15 years of exposure because the higher frequencies of hearing are affected first. Hearing loss resulting from chronic noise exposure is quite often not noticed by the sufferer until it has been present for some time, because it is later on that it begins to affect the medium and lower frequencies and also because with advancing years, the hearing loss becomes naturally worse in any case.
Dr Lucchese was asked to assume that the Applicant had no hearing loss of which he was aware when he started with DAS in 1990; that the work environment in DAS was a noisy environment; that he first noticed the hearing loss some five years into his employment with DAS; that he ceased his employment with DAS in 1996 and that in 1997 he made his first claim for industrial deafness. On that basis Dr Lucchese considered that the Applicant’s work with DAS posed a real cause for his hearing loss. The patient might not have been aware of it, but as the hearing loss accumulates because of the noise exposure, then it has become more apparent to him. He said a person could have a degree of industrial deafness - up to about 10 per cent - without necessarily being aware of it. He said that once industrial noise exposure stops, then the hearing loss remains stationary, subject to age deterioration.
If the Applicant had not worked in a noisy environment at DAS, he might have become aware of age-related deafness (presbycusis). Dr Lucchese had taken presbycusis into account in forming his view. He was unable to give a final assessment of the extent of the additional increased aggravated industrial deafness caused by the Applicant’s DAS Service.
Dr Dowe, Consultant ENT Surgeon
On 20 August 2009 Dr Dowe reported to the Respondent. Dr Dowe noted a compensable hearing loss of 15.9 per cent, equivalent to a whole body impairment of 8 per cent and that the Applicant's condition was caused by his Commonwealth employment due to industrial noise. He formed his view on the basis of a history given by the Applicant that he had always worked as a semi-trailer driver with large powerful engines and also worked with power tools and heavy industrial machinery. He reported the Applicant had worked in these conditions most of his working life with no ear protection.
Mr R Haydon, Acoustic Engineer
Mr Haydon adopted his report of 23 January 2012 and gave evidence.
In his report he wrote that:
Sensory neural hearing loss has not been shown to occur at a level of noise exposure less than 75 decibels.
For exposure to noise levels between 75 and 85 and peak levels below 140 and that there is a low risk of sensory neural hearing loss to individuals who have potential to be particularly susceptible.
For exposure to noise levels above 85 or peaks of 140 there is a risk of sensory neural hearing loss to most individuals.
His evidence was that if a person suffers a degree of industrial deafness from a noisy environment, if they then ceased to be exposed to the noisy environment, normally the condition would not worsen thereafter, except for age factors.
In cross-examination My Haydon agreed that if a person were in a noisy environment and they suffered a degree of industrial deafness and then moved to another noisy environment, and some years later the industrial deafness is significantly worse, he would conclude that the subsequent noisy environment is likely to have added to the existing level of industrial deafness.
Mr Haydon said there was a lot of unknown information about the Applicant’s noise exposure.
He agreed that if the Applicant was unaware of any industrial deafness at the time of commencement of his DAS employment, and some five years later he became aware of it, it would be a reasonable assumption that the environment that he describes in as being ‘noisy’ was a contributing factor to that deterioration. However, he did not know how noisy the Applicant’s work environment was, nor if there were any medical (including age-related factors) or other explanations for his hearing loss, or if the Applicant noticed some sort of loss during his employment.
Mr Haydon observed that it is very difficult for a person to tell you how good their hearing is because it is subjective.
CONSIDERATION
At the relevant time, for a condition to be compensable it must be “contributed to in a material degree by the employee’s employment” under s 4(1) of the SRC Act.
The term “in a material degree” is not defined in the SRC Act. Finn J discussed the meaning of the term in Comcare v Sahu-Kahn (2007) 156 FCR 536. The term “imposes an ‘evaluative threshold’ below which a causal connection may be disregarded”, and “requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment.” For an employee to succeed in a claim such as this, it is not necessary to establish that the employment is the central, main or primary factor in the onset or aggravation of the ailment in question. It is sufficient that the employment contributes to the ailment in a material degree. That is a matter of fact and degree to be determined on evaluation of all of the contributing or causal factors.
It was contended on the Applicant’s behalf that he had no hearing loss before commencing employment with the Commonwealth. A more accurate description, in the absence of a pre-employment audiogram, is that he did not perceive that he was suffering any hearing loss. Indeed his evidence was that he did not understand that he had any hearing loss at all until his wife brought it to his attention in 1995 or so. It is unknown if he in fact suffered any hearing loss until it was confirmed by audiogram. The earliest available medical evidence confirming the applicant’s hearing loss is that of Dr Lucchese in 2007.
It was contended that the Applicant’s pre-Commonwealth employment as a truck driver for over 20 years involved him driving trucks with a sealed cabin, and did not involve the exposure to loud noise which his Commonwealth employment involved. His evidence was that he drove various types of trucks in both roles, and from his description I could discern no real difference in the types of trucks, other than that some at DAS were made of fibreglass. There was no evidence as to what effect that construction had on the noise level in the cabin.
The Applicant’s other previous work had, for a period, included working as a sheet metal worker but that work was “not extremely noisy”, only “noisy”. He had sometimes worked at industrial sites using forklifts, cranes and other machinery, which was “reasonably noisy” but not as noisy as working at DAS. His five to six years of work at DAS was also said to be a “noisy” environment. The warehouse was “very noisy”, with a vibrating noise coming off the steel walls. When the Applicant installed generators he worked in a “very deafening environment”. On his evidence this occurred less than once a month for between two and eight hours. Another “noisy” task, which occurred on average about once a year, was the installation of antennae on an operating airfield. As Mr Haydon observed, there is little evidence about the Applicant’s actual noise exposure.
The Applicant’s counsel referred me to Shorey v PT Limited (2003) 197 ALR 410 where, relying on the decision of Kirby J, he said that if the compensable injury is shown to exist, then it is for the respondent to show that the requisite degree of causation of the compensable injury falls below that required by law. What was omitted from this summation was that his Honour’s remarks were in the context that the claimant has shown that the event, which in this case is noise exposure at DAS, is "a" cause of the condition. Whether the Applicant was exposed to noise in the course of his employment is a factual matter.
The Applicant was critical of the Respondent not having called the Applicant’s supervisors or others as to the noise level to which the Applicant was exposed. I observe that a statement was provided by the Applicant from his supervisor, but he was not called and the Applicant did not seek to tender that statement. The only evidence was the Applicant’s subjective description of the noisiness of the environment which he worked. Other than that imprecise account, there was no evidence that the Applicant was exposed to levels of noise sufficient to injure his hearing whilst at DAS. Dr Lucchese’s evidence was that he had no idea as to the levels of noise to which the Applicant was exposed and he relied upon the history given by the Applicant. From his evidence Dr Lucchese had proceeded on the basis that the Applicant was exposed to injurious levels of noise for six to seven hours per day, five days a week. That was entirely inconsistent with the Applicant's evidence.
Dr Lucchese also relied upon the fact that he had experience of seeing similar levels of deafness in workers with a similar history of exposure to heavy machinery, but gave no details as to the level of noise involved in each case, the duration of any exposure in each case, or the proximity to the source of the noise.
Dr Dowe’s report was also unhelpful. Although the Applicant gave him a history that he had always worked as a semi-trailer driver with large powerful engines, and also worked with power tools and heavy industrial machinery, Dr Dowe concluded that the Applicant’s condition was “caused by” his Commonwealth employment due to industrial noise. There was no explanation as to how he came to that view when there was no indication on the history he was given, to distinguish the Applicant’s noise exposure at DAS from that elsewhere. Further, there was no indication as to what aspects, if any, of the Applicant’s work, in any role, may have led to that “causation”. As with Dr Lucchese, Dr Dowe gave no details as to the level of noise, the duration, or the proximity to the source of any noise to which the Applicant may have been exposed.
CONCLUSION
I cannot be reasonably satisfied that the Applicant was exposed to noise at levels sufficient to be a cause noise-induced deafness while he was employed by DAS. It follows that the Applicant's employment with DAS did not materially contribute to the claimed injury, and I find he has not sustained an injury as defined in sections 4, 6 and 7 of the SRC Act. Therefore the Respondent is not liable to pay compensation to the Applicant for the claimed injury under s 14 of the SRC Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
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Dated 22 May 2012
Date of hearing 26 April 2012 Counsel for the Applicant Mr A Anforth Solicitors for the Applicant Capital Lawyers Counsel for the Respondent Mr B Kelly Solicitors for the Respondent Sparke Helmore
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