MA v Secretary, Department of Transport
[2024] NSWPIC 210
•26 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ma v Secretary, Department of Transport [2024] NSWPIC 210 |
| APPLICANT: | Xiaoyu Ma |
| RESPONDENT: | Secretary, Department of Transport |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 26 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for the cost of hearing aids pursuant to section 60; the applicant worker claimed he suffered industrial deafness; the respondent asserted that the applicant had not suffered industrial deafness arising out of or in the course of his employment; Held – finding that the audiogram relied upon by the applicant should be accepted; the noise study of the respondent has no probative value due to ambiguity; failure to test ‘real noise’ and lack of identification of the ‘expert’; the industrial deafness suffered by the applicant materially contributed to the reasonable necessity for the cost of the hearing aids claimed by the applicant. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained an industrial deafness injury arising out of or in the course of his employment with the respondent. 2. The respondent was the last employer who employed the applicant in an employment to the nature of which the injury was due for the purposes of s17(1)(a)(i) of the Workers Compensation Act1987. 3. The provision of hearing aids is reasonably necessary as a consequence of the applicant’s injury and the respondent is liable for the cost of hearing aids on production of accounts and/or receipts pursuant to s 60 of the Workers Compensation Act1987. |
STATEMENT OF REASONS
BACKGROUND
Mr Ma (the applicant) a former bus driver of approximately eight years maintains his need for hearing aids arises from exposure to noise in the course of his employment with the Department of Transport (the respondent) and so made a claim under s 60 of the Workers Compensation Act (1987) (the 1987 Act).
The respondent denied liability relying on s 4 and s 17 of the 1987 Act maintaining it was not and is not a “noisy” employer. It also claimed the applicant breached s 254 and s 261 of the Workplace Injury Management and Workers Compensation Act (1998), a defence abandoned during the course of these proceedings.
An application to the Personal Injury Commission (Commission) was filed. The matter underwent the usual case management pathway. Following conciliation impasse, I was requested to arbitrate the dispute.
The applicant was represented by Ms Campbell of Counsel instructed by Ms Faura. The respondent was represented by Mr Grimes of counsel instructed by Mr Wilkins. The insurer failed to appear at both the preliminary conference and conciliation/arbitration.
In determining the matter, I considered oral submissions from counsel, the documents attached to the Application to Resolve the Dispute (ARD), the Reply and the law found in the Act. No oral evidence was adduced.
CONSIDERATION
The issue to determine is whether the respondent employed the applicant in employment to the nature of which industrial deafness was due and further, if so, are the treatment expenses claimed reasonably necessary.
The applicant’s evidence
In his statement, the applicant confirmed he retired in 2018 but worked as a bus driver for a period of 8 years,[1] five days per week, 5.5 hours per day, usually being assigned school runs but also mainstream routes. The school routes usually took 30-40 minutes and were full of children “yelling and carrying on”. During the first five years of employment, he predominantly drove MAN buses until they were phased out with modern buses. Specifically, the MAN buses were not insulated, had no power steering or air conditioning and windows had to be opened for ventilation, exposing him to noise from his and other engines, brakes, horns, bells, doors, passengers (including loud children) and general traffic noise.
[1] 8.4.2008 to 29.1.2016.
The applicant also confirms he drove the older Mercedes Benz buses which were “slightly less noisy” than the MAN buses along with Scania and Volvo buses.
The applicant recounts past employment as a TV extra, journalist in China, delivery driver and inventory controller, occupations which he testified were not noisy.
Following hearing assessment and a trial of hearing aids, the applicant experienced substantial benefit in communication and social interaction both in groups and on the telephone.[2]
[2] Folios 2-6 ARD.
Zoe Zhao, clinical audiologist
Ms Zhao recorded the applicant’s complaints of hearing difficulties over a period of five years with no history of otalgia, head or ear trauma, family history of deafness or ear disease, recreational noise exposure, vertigo or ototoxic drug use. Her pure tone audiogram showed “bilateral sensorineural deafness consistent with that caused by extended noise exposure”.[3]
[3] Folios 28 ARD.
Dr Fagan, ear, nose and throat surgeon[4]
[4] 4 July 2022 Folios 21 to 27.
Dr Fagan recorded complaints of gradual onset of auditory symptoms over a period of seven years with intermittent tinnitus and no past occupational, recreational or family history relevant to the assessment.
On review of the employment history, he opined the last noisy employer was the respondent where he recorded the applicant was “exposed to noise from bus engines, brakes, doors, passenger noise and general traffic noise”. Further he records:
“…no hearing protection provided. He described having to generally raise his voice in order to communicate at a distance of one meter which is indicative of ambient noise levels in excess of 90db. More than 2 hours of such exposure would be hazardous to a person’s hearing. He worked 5 days per week, 8 hours per day. He was exposed to noise for 8 hours in a day”.
Dr Fagan nominated the respondent as having “tendencies, incidents and characteristics to cause occupational noise induced hearing loss” and further “the employment history, physical examination and configuration of the audiogram support the diagnosis of industrial hearing loss”.
As regards treatment, he reported “his noise induced hearing loss and tinnitus is a material contributor to his need for hearing aids and hearing aids are ‘reasonable and necessary as a result of the injury”.
Respondent’s evidence
WHS Noise Assessment – Acoustic Dynamics[5]
[5] Folios 6 to 26 of the Reply.
The report is prefaced with the statement “most noise sources vary with time”.[6] Further, the report states “at each position surveyed, levels were sampled over a sufficient duration to provide a representative indication of employee noise exposure”.[7] The report provides noise evaluations in the areas of engine start up, opal readers, horn, idling, acceleration, braking, general driving, door activity, uphill acceleration for models Mercedes 0405NH and OC500LE, Volvo B7RLE and B12BLEA and Scania K280UB.
[6] Folio 9 of the Reply.
[7] Folio 16 of the Reply.
The report concludes most of the facility personnel:
“…were subject to varying levels and durations of noise exposure due to the nature of their job functions. Most of the facility personnel spend short periods of time in various areas where high noise levels occur, however some personnel are required to be exposed to high levels of noise for extended periods of time”.
It further states “the noise exposure level and the duration of exposure for all facility personnel varies from day to day and it is not practical or possible to directly measure or assign Partial Noise Exposure or Daily Noise Exposure for all or each of the facility personnel.”[8]
[8] Folio 22 of the Reply.
Overall, the report concludes the models tested at the various depots did not exceed thresholds required to induce industrial deafness.
Dr Howison, ear, nose and throat surgeon[9]
[9] Folio 27 to 31 of the Reply.
Dr Howison recorded the applicant had to:
“…shout to converse with a passenger at a distance of one meter. I therefore consider from this that he was exposed to an 8-hour equivalent continuous A-weighted sound pressure of 90dB(A) or above. More than two hours of such exposure could possibly lead to industrial deafness.”
He also commented on the noise survey of Acoustic Dynamics[10] and reported:
“I note the comprehensive measurement of noise exposure from a bus driver showing that the State Transit Authority complied with the statutory requirements. I note the findings in Table 4.5 show that none of the locations and/or noise source were above 81dB levels of sound exposure. Therefore, these levels of sound exposure are not responsible for the causation of industrial deafness.”
[10] Paragraph 16-18 above.
Dr Howison further reported “after consideration of the cumulative noise emission levels to which Mr Ma has been exposed as a Bus Driver and the shape of my audiogram, I do not consider that Mr Ma has industrial deafness”.
As regards treatment, Dr Howison reported “the only way of improving Mr Ma’s hearing loss, once any sinister cause has been excluded, is the use of hearing aids. Mr Ma does not require hearing aids as a result of industrial deafness.”
Dr Howison also recorded that the three audiograms available, both that of Ms Zhoa, Dr Fagan and his were all inconsistent causing him to believe that there were other causes for hearing loss that required investigation.
Submissions
When summarised the mainstay of the applicant’s submissions were:
i) there is little difference between the qualified specialists, both acknowledging that noise exposure over 90dB over two hours would be hazardous to hearing and hearing aids are reasonably necessary;
ii) the two audiograms served by the applicant are largely consistent and both the audiologist and the qualified ear, nose and throat specialist have formed the view that the pattern of audiometry is consistent with industrial deafness;
iii) the acoustic report relied upon by the respondent to deny liability has no value in this case as it did not test the MAN buses which are claimed to be the noisiest buses and school runs to which the applicant was exposed over a period of five years; is generic in nature and has no probative value;
iv) the report also fails to do “real life” testing such as the school run noise levels and whilst it says that it did test certain environments, fails to specifically which environments and routes were tested and further for what period;
v) it is unclear from the face of the report whether the noise testing took place only at the depot and workshops or whether actual routes were tested, this can only be inferred, although there is reference to “standard route simulation”;
vi) Dr Howison formed the view that the acoustic report was a “comprehensive assessment” but clearly not so. It follows that his findings in relation to the respondent not being noisy are infected as a result of the inadequate acoustic report particularly the lack of testing of noise of MAN buses and school routes. and
vii) the respondent has not adduced any evidence to contradict the applicant’s assertions of noise or that his employment was cause for his hearing impairment and need for treatment.
When summarised, the mainstay of the respondent’s submissions were;
i) the applicant must demonstrate on the balance of probabilities that he was engaged in employment of a nature to which injury is due and has failed to do so;
ii) the applicant has failed to demonstrate the type of noise, intensity, and exposure during the average working day;
iii) the applicant has failed to show that he was exposed to noise of greater than 90dB for more than two hours and his evidence does not support this as his stated school runs were limited to only 40 minutes at a time;
iv) the applicant’s evidence is non specific, he does not describe how often he would have to open doors, where the bus bell was located, where the engines were located. Overall, the lay and qualified evidence is deficient and insufficient to establish what level and duration of noise and the characteristics of the noise for the duration of the shift, which is what he must do. I was referred to the case of key findings of DP Roach in Dawson’s case;[11]
v) Dr Fagan does refer to the type of noise exposure whilst driving buses but stops short of discussing duration and frequency, further Dr Fagan refers to the applicant undertaking eight hour shifts which is factually incorrect, as the applicant only worked 5.5 hours per day;
vi) whilst there is evidence that the applicant was exposed to noise greater than 90dB, there is no evidence as to how long exposure levels to that level were endured;
vii) Dr Fagan makes no connection in his report to his ultimate conclusions and any particulars relating to tendencies, incidents and characteristics of any noise exposure;
viii) it is accepted that the acoustic report does not refer to the MAN buses but it has exhaustively tested five other Models each of which did not come anywhere near a “bulls roar” of 90dB;
ix) there is no evidence that the applicant had to shout to be heard or be shouted at and even if his statements are accepted, there is no evidence as to duration of such whilst on shift;
x) the results in the acoustic report arose out of assessments undertaken over three separate days on five different models, representing a fair cross section of the fleet which the applicant would have operated, and
xi) the only possible finding would be an award for the respondent in respect of the claim and certainly with respect to hearing aids as Dr Howison was of the view that any need for the aids were unrelated to industrial deafness.
[11] The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35
In reply, it was submitted:
i) the respondent’s submissions are superficial as the noise of the MAN buses and other models have to be combined with the school noise and other environmental factors raised in the applicant’s statement such as open windows (due to lack of air conditioning) and general traffic. The applicant has specified the nature of the noise and the duration, it is medically supported and the only difference in Dr Howison’s finding is as a result of his blanket acceptance of the inaccurate noise survey, and
ii) the applicant has discharged the onus of proof and there is no evidence to contradict his statements.
APPLICATION OF THE LAW, FINDINGS AND REASONS
The 1987 Act has a special provision for hearing loss cases found at s 17 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,
(b)the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(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,…”
The key enquiry is whether the work undertaken by the applicant with the respondent was “employment to the nature of which the injury was due”.
When undertaking assessment in matters concerning industrial deafness and the assessment of “expert opinion”, case law establishes the following criteria for consideration, however by no means is this list exhaustive:
(a) the applicant bears the onus of proof to establish his employment with the respondent carried the risk of him suffering from industrial deafness (Galdemar):[12]
[12] per Neilson CCJ in Galdemar v Asta Enterprises Pty Ltd [1998] NSWCC 47; 17 NSWCCR 155 (at [26]).
(b) the onus is on the balance of probabilities[13] that he was engaged in employment to the nature of which the injury was due (Nguyen);
[13] The relevant principles of onus of proof were discussed by the Court of Appeal in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 (Nguyen) where McDougall J (McColl and Bell JJA agreeing) said at [44]-[48]: “44. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact.”
(c) in order to discharge the onus, the applicant must provide detailed evidence as to the nature (volume) and the extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the tendency, incidents or characteristic of that employment are such as to give rise to a real risk of boilermaker‟s deafness (Oztop);[14]
[14] South Eastern Sydney Local Health District v Halil Oztop [2012] NSWWCCPD 50.
(d) all that is necessary under s 17 is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that employment brought about or contributed to the disease (Civitarese);[15]
[15] A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; 14 NSWCCR 158.
(e) attention must be directed not to whether the employment 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; (Lobley);[16]
[16] Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley).
(f) the nature and quality of the evidence needed for a worker to succeed will depend on the circumstances of each case;
(g) it is not sufficient for a worker to merely say “my employment was noisy and I have boilermaker’s deafness. It is always essential that he or she present detailed evidence (if no acoustics expert is to be relied on) of the nature (volume) and extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the ‘tendency, incidents or characteristics’ of that employment are such as to give rise to a real risk of boilermaker’s deafness” (Dawson).[17]
[17] The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35.
(h) a “subjective account of noise” an applicant will not suffice if there is expert evidence that the particular employment was not noisy (Ilievski);[18]
[18] Burke CCJ in Ilievski v Sutherland Shire Council (unreported 6 March 2001).
(i) in evaluating tendency, incidents and characteristics, the common sense evaluation of the causal chain in accordance with the principles is to be adopted[19] (Kooragang);
[19] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 79.
(j) in assessing the probative value of any expert opinion, it is necessary to consider whether the expert has[20] (Makita):
(a)specialised knowledge;
(b)that the expert shows specified training study or experience in the area;
(c)the opinion expressed is “wholly or substantially” based on the witness’s expert knowledge;
(d)it must be established that the facts on which the opinion is based form a proper foundation for it;
(e)it is a requirement to show demonstration and criteria of the analysis and how conclusions are formed;
(f)if all these matters are not made explicit and it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight, and
(g)whether an opinion has been shown to be based on the specialised knowledge is a question of fact.
[20] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 and Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21.
FINDINGS AND REASONS
It is for the applicant to establish on the balance of probabilities that his employment was of such a nature to result in the injury. However, before embarking on this analysis, comment on the acoustic report is necessary particularly with reference to the Makita principles. I find the report posed more questions than answers. This is because:
(a) the author/s is unknown. The report states it has been prepared by “GR” and checked by “RH” but who are these individuals, what is their specialist knowledge, training, study and experience in noise testing and acoustics and what are their qualifications? Are they experts in the field? If so, why are their identities not known? It may be that a page has been omitted from the report. This could not be clarified at arbitration as the insurer didn’t bother to appear;
(b) noise from MAN buses was not tested;
(c) noise during school routes was not tested;
(d) the times of testing and duration of testing of the buses is unknown. Testing was undertaken over three days but was it during peak traffic periods or otherwise? Further was testing undertaken in busy thoroughfares or back streets, i.e. the concrete jungle or suburbia? These matters are important as the level of environmental noise appears to have been omitted, with a focus on noise from the bus itself, which resulting in an academic and watered down interpretation of possible noise exposure;
(e) were the buses tested under load or empty? This is significant from an acceleration and braking point of view, which impacts on the level of engine noise generated, and
(f) was any reflecting (environmental) noise considered or was the noise testing limited to noise generated from and within the bus, were windows open/closed during testing, what was the level of mechanical health of each of the models tested? This is relevant as clearly the service and mechanical condition of the model tested has an impact on noise generation from both in terms of exhaust and brake noise.
In summary, I found the report to be academic, general, ambiguous in parts, subjective and as a result inherently unconvincing. I further find it does not represent real time noise exposure. Testing noise with any compelling accuracy requires a noise study which would have been undertaken with a decibel meter sound recorder with log in/log off capabilities, which could properly test noise exposure throughout an entire actual shift (not simulated) including taking into account variables such as load, braking, speed, environmental noise, passenger noise, mechanical health of the bus, temperature cycles, reflective noise etc. Had such vehicle and route specific testing been employed, over several shifts reflecting a driver’s variable work week, the respondent’s “expert” evidence may have had some probative value. It beggars belief that the respondent has not engaged in such testing given the size of its workforce, its resources and with a view that such accurate testing could possibly avoid litigation or alternatively identify and mitigate possible noise risks. It is these observations that cause me to place no weight on the respondent’s noise assessment and I accept the applicant’s submission that as a result, the assessment of the respondent’s qualified expert is therefore infected. It follows and I find that the respondent is left in a position where it has no evidence to defend or contradict the applicant’s assertions.
The respondent’s criticism of Dr Fagan is however valid. It is true that there is a lack of precision in the history he records. The report does not disclose, for example, the exact shifts, or routes during which the applicant drove the older MAN or Mercedes vehicles as opposed to newer and arguably less noisy vehicles. That evidence would certainly assist in establishing the extent of the applicant’s exposure to noise but its absence does not totally undermine the opinion given the case law discussed above. Such matters affect the weight to be given to the doctor’s opinion but do not to render it otiose, particularly when assessed with reference to the initial audiogram and the applicant’s statements which cannot be legitimately challenged by the respondent for the reasons given. Further, whilst I note that Dr Fagan may not have been specific, he has identified “noise” arising from the bus and the environment sufficient to conclude that it had the tendency, incidents and characteristics significant to result in hearing loss (Dawson and Lobley).
The common sense evaluation of the causal chain (Kooragang) supports that the applicant was exposed to loud noise that had the “tendencies, incidents or characteristics” to give rise to a risk of hearing loss. Therefore, I am satisfied that the respondent employed the applicant in employment to the nature of which industrial deafness was due for the purposes of
s 17 (1)(a)(i) of the 1987 Act because the applicant's exposure to noise on these older buses coupled with environmental noise was capable of causing the condition of industrial deafness.As regards the claim for s 60 expenses pertaining to the hearing aids, case law[21] establishes the following criteria for consideration in the assessment of whether such treatment is reasonably necessary, however by no means is this list exhaustive, relevantly;
(a) will the treatment nominated have the potential effect to alleviate the consequences of the injury;
(b) appropriateness – the treatment must be purposive;
(c) alternatives – consideration of other forms of treatment should be explored;
(d) cost – there must be some cost/benefit analysis of alternative treatment proposed;
(e) what is the effectiveness, and
(f) acceptance of the proposed treatment by the medical profession.
[21] Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 and Diab v NRMA Ltd [2014] NSWWCCPD 72.
Overall, the bulk of the medical evidence and the applicant’s statement support the provision of hearing aids as an appropriate, accepted and effective form of treatment for industrial deafness, and it comes at a fixed cost. Further, no alternative treatment has been advanced. The trial of hearing aids has demonstrated improvement to date in the applicant’s quality of life and there is really no alternative non-invasive treatment. This satisfies the relevant factors discussed in Rose and Diab.
The respondent’s submission that Dr Howison does not support the treatment as a result of industrial deafness has been noted. As indicated above, Dr Howison’s opinion has been infected by his blanket acceptance of the subjective acoustic report. I have noted that Dr Howison has reported his testing revealed a non-boilermakers/industrial component, but I prefer the opinion of the applicant’s audiologist and qualified specialist who have both considered hearing aids are reasonably necessary as a result of industrial deafness for the reasons given above. However, acknowledging Dr Howison’s view that there may be other contributing factors to the hearing loss and requirement for treatment, it is relevant to note here that it is a well-established principle that work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.[22] It follows, that the opinion of Dr Howison on this point, does not alter my findings.
[22] Murphy v Allity Management Services Pty Ltd[2015] NSWWCCPD 49.
Given my findings, I am satisfied that the provision of bilateral digital hearing aids is reasonably necessary as a result of the injury sustained and that the respondent is liable to pay for the supply and fitting of bilateral digital hearing aids.
SUMMARY
For the above reasons, I find the applicant has on the balance of probability established that he was employed in an employment to the nature of which the injury was due. Accordingly I make the findings and orders set out on page 1 of the Certificate of Determination.
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