Manuel v BOC Limited
[2011] NSWWCCPD 20
•1 April 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Manuel v BOC Limited [2011] NSWWCCPD 20 | ||||
| APPELLANT: | Noel David Manuel | ||||
| RESPONDENT: | BOC Limited | ||||
| INSURER: | BOC Limited | ||||
| FILE NUMBER: | A1-7491/10 | ||||
| ARBITRATOR: | Ms Margaret Dalley | ||||
| DATE OF ARBITRATOR’S DECISION: | 23 November 2010 | ||||
| DATE OF APPEAL HEARING: | 29 March 2011 | ||||
| DATE OF APPEAL DECISION: | 1 April 2011 | ||||
| SUBJECT MATTER OF DECISION: | Section 17 of the Workers Compensation Act 1987; Blayney Shire Council v Lobley (1995) 12 NSWCCR 52; tendencies, incidents or characteristics of employment | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||||
| HEARING: | Oral | ||||
| REPRESENTATION: | Appellant: | Mr R Stanton, instructed by Slater & Gordon Lawyers | |||
| Respondent: | Mr M Underwood of Bartier Perry Lawyers | ||||
ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 23 November 2010 is confirmed. No order as to costs of the appeal. | ||||
BACKGROUND TO THE APPEAL
Mr Noel David Manuel, who is 83 years of age, was employed by BOC Limited (the respondent) as a fitter and turner until his retirement in 1990. He commenced that employment in approximately 1967 at which time the respondent was known as CIG Limited. He has not worked since retirement.
There is no dispute between the parties that the work performed by Mr Manuel exposed him to significant industrial noise. Following his retirement he made a claim in proceedings against the respondent in respect of lump sum compensation alleging a 12.12 per cent binaural hearing loss. The evidence suggests that he had earlier, in 1982, made a similar claim against his employer. However, the evidence does not reveal any detail concerning such claim nor of any payment made. The proceedings, which were commenced in July 1994, were settled and a consent award dated 24 February 1995 records an agreement providing for payment in the sum of $2695.67 in respect of 4.58 per cent loss of hearing in both ears together with payment of the cost of hearing aids, interest and costs.
In January 2010 Mr Manuel made a claim against the respondent in respect of 15.15 per cent binaural hearing loss. The date of injury specified in that claim was 1 January 1990. That claim was declined by the respondent and notice concerning the grounds of denial was provided to Mr Manuel by letter from the respondent dated 21 May 2010. The grounds for refusal of the claim are addressed below.
A dispute arose between the parties concerning Mr Manuel’s entitlement to the compensation claimed and an Application to Resolve a Dispute was filed with the Commission on 13 September 2010. The matter was listed for conciliation/arbitration before an Arbitrator on 23 November 2010 on which date it proceeded to hearing. The parties were each represented by Counsel. Submissions were recorded and a transcript (T) has been produced and made available to the parties. The Arbitrator delivered her determination orally following submissions, and her reasons for that determination are recorded in the transcript.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 23 November 2010 records the Arbitrator’s orders as follows:
“1. That there be an award for the Respondent in respect of the Applicant’s claim for further lump sum compensation for binaural hearing loss arising from the injury on the deemed date of 1/01/90.”
The Arbitrator’s reasons are recorded between T.39 and T.45.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to correctly apply relevant authority, in particular, the decision of the Court of Appeal in Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley), to the facts;
(b) deciding that the question of causation, namely whether the employment concerned was “noisy enough” to damage hearing, needed to be determined;
(c) asking an incorrect question being “was the employment capable of producing ongoing hearing loss?”, and
(d) rejecting the evidence of Dr Tamhane concerning causation.
The issues enumerated above have been taken directly from the stated grounds of appeal to be found in submissions put on behalf of Mr Manuel. Those submissions are, substantially, a reiteration of argument advanced at the hearing before the Arbitrator.
HEARING
An oral hearing was conducted on 29 March 2011.
LEAVE
There is no dispute between the parties concerning the threshold requirements as prescribed by s 352 of 1998 Act.
In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
ARBITRAL PROCEEDINGS
The Arbitrator recorded the documentary evidence that was before the Commission immediately before inviting submissions by counsel. That evidentiary material is noted in the transcript (at T.2). No oral evidence was adduced.
Mr Manuel’s evidence
There is a statement made by Mr Manuel dated 25 March 2008 in evidence. That statement reveals that he is presently 83 years of age and completed an apprenticeship as a marine engineer as a young man. Following completion of his apprenticeship he enrolled in the Merchant Navy and remained in that service in between 1945 and 1950. Mr Manuel lived in England after leaving the Merchant Navy where he remained until 1965. During that time he was employed as a fitter and turner in ship yards.
Mr Manuel immigrated to this country in 1965 following which he commenced employment with BHP Limited at the Port Kembla Steel Works where he remained for two years. In 1967 he commenced employment with the respondent which was then known as CIG Limited. He remained in the respondent’s employ until retirement in approximately May 1990.
Mr Manuel described his working environment at the respondent’s premises including detail of his exposure to significant industrial noise. He states that he had made a claim for hearing loss in approximately 1989 or 1990 (sic) and acknowledges that he received “hearing aids and a lump sum”. He states that following his retirement he underwent a hearing assessment following which he received further compensation.
Expert evidence
Mr Manuel relied upon the evidence of Dr Sharad S Tamhane, ears nose and throat surgeon, as found in two reports tendered in evidence, the first dated 24 November 2009 and the other dated 3 July 2010. In the first of those reports Dr Tamhane records relevant history including detail of previous payment of compensation in respect of industrial deafness in 1994. The history as recorded included detail of work history and particulars of noise exposure in the course of Mr Manuel’s employment. It was recorded that work performed with the respondent exposed Mr Manuel to conditions which were “extremely noisy”. An audiological assessment revealed a bilateral severe mid and high tone symmetrical sensorineural hearing loss. Dr Tamhane records that the hearing loss is “a little worse in the high tones than the mid tones”. Dr Tamhane calculated a binaural hearing loss of 19.5 per cent from which he deducted 4.35 per cent which he stated represented “previous compensated binaural hearing loss”. His opinion, as corrected in his second report of 3 July 2010, was that “it is more than likely that the high tone sensorineural hearing loss in the 2000 Hz, 3000 Hz and 4000 Hz frequencies is a direct result of exposure to loud noise through his employment with BHP for two years from 1965 followed by CIG [sic] until 1990”.
Dr Tamhane’s report dated 3 July 2010, which was a response to particular questions put to him by the respondent’s solicitors, included the following statement:
“I agree that the general consensus of informed medical opinion that [sic, is that] hearing loss due to exposure to Occupational Noise Exposure ceases when the worker is removed from the noise source and there is published material supporting this view. However, there is also some strong research evidence from studies on a substantial sample of patients which show that patients exposed to Occupational Noise suffer a greater hearing loss until the age of 75 years occurring after they have been removed from the noise source. There has been a comparison with an identical sample of patients who are not exposed to any Occupational Noise.
Based on these studies, on the balance of probabilities, I consider Mr Manuel’s employment with BOC Limited to be a substantial contributing factor to the additional hearing loss Mr Manuel has sustained since 1995.”
Dr Tamhane in that report identifies three documents, which are described as research studies, upon which he relied in forming his opinion. Copies of those studies are in evidence.
Mr Manuel relied upon a number of other documents including correspondence received from the respondent denying liability together with enclosures. Those documents, where relevant are addressed hereunder.
The respondent’s evidence
Expert evidence
The respondent relied upon the evidence found in two reports provided by Dr J H Seymour, ear nose and throat medico-legal consultant, dated 14 April 2010 and 6 October 2010. Dr Seymour recorded a history that Mr Manuel had retired in 1990 and had not worked since. The earlier claim brought by Mr Manuel in respect of industrial deafness was also noted in that history. The noisy environment at the respondent’s premises during Mr Manuel’s period of employment was recorded and an audiogram was reported to have demonstrated a “bilateral sensory neural hearing loss” assessed as 38.7 per cent after correction for presbycusis. Dr Seymour proceeded to state that, from the compensation point of view, only losses at 2000, 3000 and 4000 Hertz in each ear should be attributed to occupational noise exposure. Dr Seymour then stated that, after correction for presbycusis, compensable binaural loss is assessed at 18.4 per cent.
Dr Seymour proceeded to note the history of Mr Manuel’s claim made in 1995 and that he had “not sustained any further noise exposure since” that claim. That practitioner then stated:
“The general consensus of informed medical opinion is that occupational noise exposure [sic] does not progress after a worker is removed from the noise source. In support of this I am enclosing a list of relevant authorities.
It is my opinion therefore that the increase in [Mr Manuel’s] hearing loss cannot be attributed to occupational noise exposure but to alternate aetiology which can be viral, vascular, genetic, metabolic or the aging process, but not occupational noise exposure.”
The report of Dr Seymour dated 6 October 2010 summarises the natural history of noise induced deafness. Dr Seymour also stated that the studies submitted by Dr Tamhane “cannot be accepted as valid without peer review and acceptance by informed medical opinion”. Dr Seymour also enclosed a summary of reports from “learned societies and individuals concerning the general consensus of informed medical opinion that the effects of occupational noise cease when an applicant is removed from the noise source”.
The respondent also tendered copies of the Application for Determination filed by Mr Manuel in the former Compensation Court of New South Wales in Matter 9305 of 1994 together with a copy of the consent award entered by the Court. The detail of that award is noted at [2] above. A number of other documents were tendered on behalf of the respondent which are of no direct relevance to the issues raised on this appeal.
Mr Manuel’s submissions
Counsel appearing on behalf of Mr Manuel opened submissions with reference to the provisions of s 17 of the Workers Compensation Act 1987 (the 1987 Act). Reference was made to the nominated date of injury as found in the application and it was suggested by counsel that “its common ground… that Mr Manuel last worked for the respondent in employment which the nature of which [sic] this injury is due in 1990”.
Reliance was placed by counsel upon the decision in Lobley and particular reference was made in the course of submissions to the judgment of Cole JA. It was put in argument that, having regard to the decision in Lobley, Mr Manuel “does not have to prove that the actual noise that he was exposed to whilst he was employed with a particular employer actually caused the actual physical damage which has resulted in him having a degree of hearing loss”.
It was further argued that Mr Manuel’s “work with the respondent was [sic] involved in him being exposed to a degree of noise which satisfies the very limited requirement of section 17”.
It was put that both Dr Seymour and Dr Tamhane each found “a degree of binaural hearing loss caused by noise exposure which is greater than the amount which was the subject of the Consent Award in 1995”.
The evidence of Dr Seymour concerning the attribution of losses in each ear to occupational noise exposure was said in argument to “fit in with the requirements of section 17”.
It was put that there was no controversy:
“that the work [with the respondent] was sufficiently noisy to damage hearing. Section 17 operates to deem that injury occurred on 1 January 1990. The Commission is required to refer the matter to an [Approved Medical Specialist], there being a dispute as to the degree of binaural hearing loss”.
It was further argued that s 17, as construed by the Court of Appeal in Lobley, overcomes the respondent’s argument that the Commission needs to determine the question of causation of the hearing loss “with this particular employer”.
Counsel proceeded to argue that, if the question of causation was found to be relevant, the evidence of Dr Tamhane was to be preferred to that of Dr Seymour. These submissions included a close analysis of the evidence of both experts and the contents of the studies relied upon by Dr Tamhane.
The final submission put by Mr Manuel was a repetition by counsel that the Arbitrator would fall into “legal error by determining the matter on the basis of expert medical opinion about causation because that offends s 17 and Blayney Shire Council v Lobley”.
The respondent’s submissions
Counsel summarised the history of the claim brought by Mr Manuel and it was put that the present claim was one for “further loss” of hearing. The expert medical evidence was summarised, and it was put that the evidence of Dr Tamhane “offends… the principle in Makita v Sprowles” which requires that an expert must expose “the reasoning process”.
It was put that on the evidence “there should be a finding of fact that any apparent deterioration [in Mr Manuel’s] hearing since the date of the Consent Award cannot be related to the noise exposure leading up to 1990.” It was put that acceptance by the Commission of the evidence of Dr Tamhane would “open the flood gates to literally thousands of claims”.
The Arbitrator’s reasons
The Arbitrator summarised the relevant facts and observed that the claim was one with respect to a further loss of hearing. That claim had been brought “after noisy employment had ceased or employment of the type to cause hearing loss had ceased”. Reference was made to the provisions of s 17 and to the decision of the Court of Appeal in Lobley. The decision of Lobley was distinguished by the Arbitrator upon its facts.
The Arbitrator proceeded to state “[b]efore I can refer a matter to an [Approved Medical Specialist] I do have to look at causation.” The Arbitrator identified the question for determination, as it was perceived, as being “was the employment of the nature to cause hearing loss capable of causing ongoing hearing loss after that employment had ceased and the exposure to the noise had ceased”. The Arbitrator concluded that the Commission did “have grounds to do that under s 17”.
The Arbitrator proceeded to summarise the expert medical evidence which was before the Commission. Following a consideration of that evidence the Arbitrator stated that:
“the weight of the evidence seems to be on the side of the argument that once you are removed from the source of noise then hearing loss due to noise does not continue to deteriorate. Under these circumstances I find for the respondent in that the applicant has failed to make out a case for ongoing hearing loss due to noise exposure some 30 years after exposure to that noise source.”
The Arbitrator proceeded to enter an award in favour of the respondent.
SUBMISSIONS
Mr Manuel’s submissions on appeal
The written submissions furnished by Mr Manuel in support of this appeal represent a reiteration of those arguments advanced before the Arbitrator together with a number of stated grounds of appeal challenging certain aspects of the Arbitrator’s reasoning and her conclusions reached. It is to be noted that included in “Introductory Comments” to those submissions it is stated that “[i]t has never been disputed that the appellant has suffered a loss of hearing, which is of such a nature as to be caused by a gradual process – within the meaning of s.17 WCA.”
It is submitted that the Arbitrator “erred in law in distinguishing [Lobley] on the basis that it dealt with a claim for a loss of hearing and not a claim for a further loss of hearing”. It is argued that Lobley cannot be distinguished in that way as there is nothing in the decision “which warrants the conclusion that it only applies to the initial losses of hearing.”
It is further argued that the Arbitrator’s decision to “look at causation in a manner akin to a ‘normal matter’” is said to be an error of law and that the approach taken by the Arbitrator imposed a “forensic burden on the worker, which, in the words of Kirby P [in Lobley], s 17 is designed to ‘relieve’ the worker of.”
It was also submitted that the question, “was the employment capable of producing ongoing hearing loss”, posed by the Arbitrator, related to a matter that was not in issue and the Arbitrator had wrongly assumed that Mr Manuel was required to prove “actual acoustic trauma in a particular place of work have [sic] caused a loss of hearing.”
In submissions put in the alternative to the primary argument advanced, Mr Manuel draws attention to suggested inconsistency in the views expressed by Dr Seymour as to the extent of hearing loss due to occupational noise exposure suffered, and suggests that Dr Tamhane’s opinion should be preferred.
In the course of submissions Mr Manuel draws the Commission’s attention to the decision of Roche DP in Eraring Energy v Brownlie [2008] NSWWCCPD 42 (Brownlie). Mr Manuel argues that the decision of Brownlie may be distinguished from the present matter upon the facts. It is argued that, unlike the present matter, there was no evidence before the Commission in Brownlie that supported a conclusion that relevant deafness can deteriorate once exposure to harmful noise has ceased.
At the hearing of the appeal Mr Stanton of counsel appeared on behalf of Mr Manuel. It was acknowledged by counsel that, having regard to the deemed date of injury being 1 January 1990, the significant amendments to the Acts effected by the passage of the Workers Compensation Legislation Amendment Act 2001 and the Workers Compensation Legislation Further Amendment Act 2001, (the amending Acts), each of which came into operation, relevantly, in 2002, had application to the present facts as regulated by the transitional provisions being those found in Sch 6 Pt 18C to the 1987 Act.
Counsel proceeded to amplify those submissions which I have attempted to summarise between [38] and [43]. It was argued that, given that there was no dispute that Mr Manuel’s employment with the respondent was employment within the meaning of s 17(1)(a) and that there was a consensus of medical opinion that there was a degree of hearing loss caused by noisy employment that was greater than that for which he had received compensation in 1995, the only “forensic path” open to the Commission was to refer the matter to an Approved Medical Specialist (AMS) for assessment as required by the provisions of Sch 6 Pt 18C cl 4 to the 1987 Act. Reliance was placed upon the decision in Lobley in support of this argument.
It was further argued that the wording of s 17 of the 1987 Act was intended by Parliament to have application not only in the case of a loss of hearing but provision had been made with respect to “a further loss”. The present claim was in respect of such a further loss and Mr Manuel could have, as stated by the Court in Lobley, benefit of the fictions provided by s 17. The purpose of that provision was, in part, to reduce forensic dispute before the Commission.
Counsel made reference to the evidence of Dr Seymour and emphasised those matters which appeared at page 2 of the report dated 14 April 2010. It was there stated by Dr Seymour that the findings following conduct of a pure tone audiogram, after appropriate corrections, demonstrate “compensable hearing losses [binaural 18.4%]”. It was argued that there was no practical dispute concerning the existence of occupational hearing loss suffered by Mr Manuel to an extent greater than that in respect of which he was previously compensated. In those circumstances, it was put, the provisions of s 17 apply. The application of that section “makes redundant and irrelevant” any analysis of the evidence which addresses other “concerns” such as causation of the loss found. The proper application of s 17, given that there is no need to distinguish between a loss and a further loss, has the consequence that “causation” is not a relevant consideration.
The respondent’s submissions on appeal
The respondent, in written submissions, argues that the decision of Lobley may be distinguished from the present matter upon the facts. The submissions note that in the course of his decision Cole JA left open the question as to whether an employer may be able to exclude the possibility of hearing loss injury because of protective measures taken and whether a worker’s claim will fail in such circumstances notwithstanding it having been established that the tendency, incidents or characteristics of employment were the type that could give rise to the injury in fact suffered. The argument, as developed, suggests that the question as to whether a further loss of hearing may occur following cessation of noisy exposure should also be left open and is one which should, in this matter, properly be determined by the Commission. The issue in dispute was described in those submissions as follows:
“In this matter there was a legitimate question as to whether the work [Mr Manuel] undertook up to 1990 was of a nature which could have given rise to the aggravation of boilermaker’s deafness or deafness of like origin subsequent to the previous consent award in March 1995”.
The respondent argues that the decision of Brownlie supports the contention:
“that [Mr Manuel] in this case must establish his further loss of hearing was due to the nature of the work he undertook prior to his initial hearing loss award because the ‘injury’ for which he claimed compensation, and for which liability was disputed, was the ‘further loss of hearing’ and there was no evidence of any exposure to noisy employment in NSW or anywhere else after the award in respect of his previous hearing loss”.
The respondent cited the decision of Armitage J in Vittori v Anthony’s Place Pty Ltd (1996) 13 NSWCCR 315 (Vittori). The facts of Vittori are summarised and it is suggested that the matter in dispute determined by his Honour in that decision is similar to that which is raised on the evidence in the present case. The Court in Vittori embarked upon the task of determining the question of causation and a finding was made in favour of the employer. It is further argued that a consideration of the decisions of Brownlie and Vittori lead to a conclusion that there is an onus upon a worker to prove, on the balance of probabilities “that a further hearing loss injury was the result of employment to the nature of which boilermaker’s deafness is due”.
It is further argued that the Arbitrator was correct in her approach to the issue of liability in that the question that she asked herself was identical to the question which was addressed by the Court in Vittori. The submissions emphasise that the question requiring determination “called for expert medical opinion, as occurred in the Vittori case, where both parties’ experts specifically addressed this question in their reports and their oral evidence”.
The respondent’s submissions include a summary of the expert medical evidence and it is argued that the Arbitrator’s expressed preference for the evidence of Dr Seymour was open to her and that such acceptance was correct in all the circumstances.
The respondent, in concluding its written submissions, argues that there are “policy reasons” which require that the appeal “should be dismissed”. This submission is similar to the “flood gates” argument raised by counsel for the respondent at the hearing before the Arbitrator.
The respondent was represented by Mr Underwood, solicitor, at the hearing of the appeal. It was argued that Dr Seymour had made a “slip” when drafting his report dated 14 April 2010 where reference was made to “compensable hearing losses”. It was argued that Dr Seymour’s true opinion is to be found in the closing paragraphs of his report and that his view was that Mr Manuel had suffered no further hearing loss injury, no further loss of hearing and that any loss assessed may be attributed to causes other than occupational noise exposure as stated in that report. The nature of the dispute, it was argued, concerned the question as to whether the further hearing loss assessed was or was not boilermaker’s deafness. The respondent denied that such additional loss was boilermaker’s deafness or deafness of similar origin.
Reference was made by the respondent to the terms of s 321 of the 1998 Act and it was put that there was a “jurisdictional issue” which needed to be addressed on the present facts. It was put that the “injury” in respect of which compensation is sought is a “further loss” of hearing. The respondent disputes the occurrence of such injury which gives rise to a liability issue. Such liability issue must be determined by the Commission before referral by the Registrar to an AMS for assessment: s 321(4).
A number of authorities were cited in support of the submission that the issue in dispute between the parties is one concerning liability including the decision of Candy ADP in Bhutta v RailCorp NSW [2010] NSWWCCPD 108 and the decision of Snell ADP, as he then was, in Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131; 5 DDCR 461. It was argued that these, and associated cases, determined by the Commission in the past demonstrate that there are a multiplicity of issues which require determination by the Commission and that the dispute as to the occurrence of injury, being a further loss of hearing, is one such issue requiring determination by an Arbitrator.
DISCUSSION AND FINDINGS
The deemed date of injury in this matter is 1 January 1990. The claim was made in January 2010. Regard in the present matter must be had to the relevant transitional provisions when determining the consequences of the passage of the amending Acts upon Mr Manuel’s entitlement and the respondent’s liability.
The relevant transitional provisions are to be found in Sch 6 Pt 18C to the 1987 Act. The general provision is that the lump sum compensation amendments, as defined in Sch 6 Pt 18C cl 1, do not apply in respect of Mr Manuel’s 1990 injury: Sch 6 Pt 18C cl 3. That provision must be read subject to the provisions found in Sch 6 Pt 18C cl 4 which provides:
“4 Disputes concerning lump sum compensation claims
(1)In the case of a new claim in respect of an injury received before the
commencement of the lump sum compensation amendments, compensation under Division 4 of Part 3 (as in force before the commencement of those amendments) may not be awarded by the Commission if there is an impairment dispute unless the dispute has been assessed by an approved medical specialist under Part 7 of Chapter 7 of the 1998 Act.
(2)An assessment certified in a medical assessment certificate pursuant to the medical assessment of an impairment dispute is conclusively presumed to be correct as to the matters in dispute in any proceedings in respect of the claim for compensation concerned.
(3)For the purposes of this clause, Part 7 of Chapter 7 of the 1998 Act extends (with such modifications as may be prescribed by the regulations) to the assessment of an impairment dispute as if it were a medical dispute under that Part.
(4)In this clause, impairment dispute means a dispute about whether a loss or impairment exists and, if so, the nature and extent of the loss or impairment.”
It may be seen that, in circumstances where there exists an impairment dispute, lump sum compensation may not be awarded unless the dispute has been assessed by an AMS under Pt 7 of Ch 7 of the 1998 Act: Sch 6 Pt 18C cl 4(1). Part 7 applies to the dispute as if it were a medical dispute under that part (Sch 6 Pt 18C cl 4(3)).
A medical dispute means a dispute about “the nature and extent of loss of hearing suffered by a worker”: s 319 of the 1998 Act.
The present facts require consideration of the provisions of s 321(4)(a) of the 1998 Act which provides:
“(4) The Registrar may not refer for assessment under this Part:
(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission”.
The general scheme of the Acts was considered by Handley AJ in the course of his leading judgment in Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 (Haroun) where it was stated (at 141):
“The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers Compensation Act 1987 (NSW) (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel”.
In the present circumstances it is necessary to determine the nature of the dispute. It is argued by Mr Manuel that the dispute is a medical dispute and requires remitter to the Registrar for referral to an AMS for assessment. The respondent argues that there is a dispute as to liability which must first be determined by the Commission.
The argument advanced by Mr Manuel asserts that s 17 operates, as construed by the court in Lobley, to negate any question of causation. The respondent argues that Mr Manuel’s further loss of hearing is not an injury to which the provisions of s 17 have application. It asserts that the relevant loss of hearing is not boilermaker’s deafness or deafness of similar origin within the meaning of s 17(2) of the 1987 Act.
In his leading judgment in Lobley, Cole JA, following a consideration of relevant authority, stated:
“It follows from these authorities that in determining whether, at the time when notice of injury was given, Mr Lobley was “employed in an employment to the nature of which the injury was due”, attention must be directed not to whether the employment then engaged in actually caused the injury but whether the ‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered.” (at 64D, emphasis added)
The injury “in fact suffered” in the present case is a “further loss” of hearing. I accept the respondent’s argument that there exists a factual dispute as to whether the “tendencies, incidents or characteristics” of Mr Manuel’s employment were such that they could give rise “to the injury in fact suffered”. That dispute arises by reason of the evidence of Dr Seymour, which contradicts that of Dr Tamhane. The dispute concerns the very question posed by Cole JA in Lobley.
I am of the opinion that the dispute between the parties may properly be characterised as a factual dispute as addressed in Haroun and is one which needs to be determined before any referral for assessment to an AMS: s 321(4)(a) of the 1998 Act.
Relevance of s 17 of the Workers Compensation Act 1987
The question arises as to whether Mr Manuel has established that the tendencies, incidents or characteristics of his employment with the respondent were of a type which could give rise to the injury in fact suffered by him being further loss of hearing.
The Arbitrator addressed the evidence relevant to this question between T42 and T44. The relevant evidence was that of Dr Seymour and Dr Tamhane as well as the various papers and studies relied and commented upon by those practitioners.
I have earlier, at [36] above, noted the question addressed by the Arbitrator. That question touches on the issues raised, however it is necessary that the evidence be reviewed to determine the correctness or otherwise of the Arbitrator’s ultimate conclusion.
I have earlier noted the views expressed by Dr Tamhane (between [16] and [18]) and the conflicting opinion of Dr Seymour (between [20] and [22]).
It is correct, as submitted on behalf of Mr Manuel, that Dr Seymour has made reference to an assessed compensable hearing loss in the body of his report. I reject the respondent’s submission that this statement made by Dr Seymour amounts to a “slip” or constitutes an inadvertent statement. It is clear that Dr Seymour acknowledges in his report that, leaving aside the known history of exposure, the further loss of hearing was, otherwise, consistent with noise induced hearing loss. His view concerning the relevance of employment has been noted at [21] above.
Both Dr Seymour and Dr Tamhane acknowledge that “the general consensus of informed medical opinion is that the effects of occupational noise cease when [a worker] is removed from the noise source”. Dr Seymour has provided references to studies which, he states, demonstrate that consensus.
Dr Tamhane, upon reliance of the studies cited by him, has expressed the view noted at [17] above. Dr Tamhane has there addressed the question of causation in fact, which is not the matter in issue. It is clear that, if accepted, Dr Tamhane’s opinion would answer the question posed at [68] above affirmatively.
I have considered the three studies relied upon by Dr Tamhane and conclude that that material is of little evidentiary weight. I so conclude given the following matters appearing in the studies:
(a) the paper prepared by U. Rosenhall entitled “The Influence of Ageing on Noise-Induced Hearing Loss” includes an acknowledgement by the author that “the effect of noise is equivocal. The interactions between noise-induced hearing loss (NIHL) and age-related hearing loss are complex, difficult to determine, and poorly understood. One major problem is that age-related hearing loss is extremely multifactorial”;
(b) the paper prepared by Rosenhall presents various statistical material however it is noted at page 4 of that report that “at age 79 the difference between exposed and not exposed subjects was considerably smaller”. That comment related to the figures demonstrating suggested accelerated deterioration of hearing in ageing males. I note that Mr Manuel is presently 83 years of age.
(c) The study entitled “Presbycusis and Noise-Induced Hearing Loss” compiled by Rosenhall, Pedersen and Spanborg includes a statement at page 6 that “at age 79, the hearing acuity in the high frequency range (4-8 kHz) was without significant differences in the heavily exposed and not exposed groups”. It was also commented by the authors that “the deleterious effects of noise thus becomes less apparent in advanced age; presbycusis eventually catches up with noise induced hearing loss”, and
(d) the brief extract of a paper entitled “On the Progression of the Noise Induced Occupational Hearing Loss. With Special Reference to the Ageing” suggests that hearing deteriorates throughout employment which is noisy “and even after retirement”. There is no material of a persuasive character relied upon in support of that proposition.
For the reasons which I have attempted to summarise above I conclude that the opinion of Dr Seymour is to be preferred to that as expressed by Dr Tamhane. It follows that the evidence does not establish that the tendencies, incidents or characteristics of Mr Manuel’s employment with the respondent could give rise to the injury in fact suffered by him being the further loss of hearing which has been assessed since that employment ceased and since the earlier proceedings were settled. The arguments advanced on behalf of Mr Manuel concerning the application of s 17 must be rejected.
It may be seen that I have reached a conclusion similar to that reached by the Arbitrator. In the circumstances, for the reasons which I have stated, the Arbitrator’s finding that there should be an award for the respondent was correct. The award noted in paragraph one of the Certificate of Determination dated 23 November 2010 is confirmed.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 23 November 2010 is confirmed.
COSTS
No order as to costs of the appeal.
Kevin O’Grady
Deputy President
1 April 2011
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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