Margaret Rose Flack v Tempo Services Limited

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

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CITATION:	Margaret Rose Flack v Tempo Services Limited [2003] NSW WCC PD 23
APPELLANT:	Margaret Rose Flack
RESPONDENT:	Tempo Services Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NO:	WCC 747-2002
DATE OF ARBITRATOR’S DECISION:	26 May 2003
PRESIDENTIAL MEMBER:	Deputy President Dr Gabriel Fleming
DECISION UNDER APPEAL:	Application for Leave to appeal against a decision of an Arbitrator for non-economic loss compensation. Applicant failed to discharge onus of proof on balance of probabilities that Respondent was a noisy employer.
HEARING:	12 September 2003
DATE OF THIS DECISION:	22 September 2003
REPRESENTATION:	Appellant: Walsh & Blair Lawyers
Respondent: PW Turk & Associates, Solicitors
ORDERS MADE ON APPEAL:	The decision of the Arbitrator is confirmed.

THE APPEAL

On 23 June 2003 Margaret Flack (‘the Appellant Worker’), lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’). The Respondent to the appeal is Tempo Services Limited (‘the Respondent Employer’), and the relevant Insurer is Allianz Australia Workers Compensation (NSW) Limited (‘the Insurer’).
The dispute concerns Ms Flack’s claim for lump sum compensation for permanent impairment due to hearing loss, pursuant to section 66 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The Certificate of Determination issued on 26 May 2003 records the finding of the Arbitrator in the original proceedings as ‘Award for the Respondent’. The amount of compensation at issue in the appeal is $6,760.00, being the whole of the amount claimed by Ms Flack.
On 25 August 2003 leave to appeal was granted, pursuant to section 352 of the 1998 Act.

THE ISSUES IN DISPUTE

Both parties made written submissions on the appeal, and further submissions were heard at the telephone hearing on 12 September 2003. The parties also relied upon written submissions made to the Arbitrator and oral evidence and submissions heard at the arbitration on 2 April 2003.
The critical issue in dispute is the Arbitrator’s findings of fact and law relevant to the statutory test of whether the Respondent employer was a ‘noisy employer’ against whom the Appellant worker could make a claim in accordance with section 17 of the Workers Compensation Act 1987 (‘the 1987 Act’). Section 17 provides, in part, as follows:
17    Loss of hearing - special provisions
(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.
The Arbitrator found that Ms Flack had not discharged the onus of proving, on the balance of probabilities, that her employment with Tempo Services Limited . . . carried the risk of [his] suffering from boilermakers deafness or deafness of a similar origin. (Arbitrator’s statement of reasons, paragraph 37, quoting from the decision of Neilson J, in Galdemar v Asta Enterprises Pty Ltd (1998) NSW WCC 47). The Arbitrator found that:
. . .the applicant has not transferred the onus of responsibility to the Respondent and nor has the applicant established on the balance of probabilities that she had suffered with the current respondent, the risk of her suffering from boilermakers deafness or deafness of a similar origin. Clearly, the applicant has suffered boilermakers deafness however, as I have alluded, it may well be that it is attributable to a long career of exposure with other employers.
The Appellant Worker submitted that:
The Arbitrator erred in the following findings of fact and law:
(i)The Applicant did not receive an injury arising out of or in the course of employment,
(ii)The Applicant’s employment was not a substantial contributing factor to the injury,
(iii) The Respondent was not a noisy employer,
(iv)The Respondent did not employ the Applicant in employment to the nature of which the hearing loss was due,
(v)The Respondent was not the last employer of the Applicant to the nature of which the hearing loss was due; and
(vi)The Applicant had not discharged her onus in establishing that the Respondent was a noisy employer.
The Respondent Employer submitted that:
. . . the issue for determination by the Arbitrator was whether at the time she gave notice of her injury, the applicant was “employed in an employment to the nature of which the injury was due” within the meaning of Section 17(1).
. . .The Respondent submits that both the written and oral evidence given in the matter supported the Arbitrator’s decision, and that his decision is correct at law.

EVIDENCE AND SUBMISSIONS

The evidence before the Arbitrator, detailed in the reasons for decision, is all before me on the appeal.
The following facts were not in dispute:
·Ms Flack is a 60-year-old woman with no dependants.
·Since 1971 she has worked as a cleaner at Narrandera High School. From 1971-1994 she was employed by G.C. Service and from 1994 to 1998 by Menzies Property Services. She commenced employment with the Respondent Employer, Tempo Services Limited, on 29 January 1999.
·On 17 May 2001 she notified the Respondent Employer of a claim for 14.8% binaural hearing loss, a total of $9,620.00.
·On 13 August 2001 the Respondent Employer advised Ms Flack that it denied liability for the claim on the basis that it was not a ‘noisy employer’.
·On 23 January 2002, a Medical Panel determined that Ms Flack suffered a binaural loss of 10.4% due to boilermakers deafness.
·Ms Flack worked for approximately eight hours per day, in two four hour shifts, using a variety of commercial vacuums and polishers, ‘blowers’ and ‘suckers’. Her evidence is that she first wore protective earmuffs in or about October 2001 and that it is now a condition of her employment that she wears earmuffs.
·Ms Flack continues to be employed by Tempo Cleaning Services Pty Limited, albeit on restricted duties of 6 hours per week, due to a back injury.
There was contradictory evidence about the amount of time that Ms Flack operated particular cleaning equipment over any one day and over the course of a week. Ms Flack stated that the hours she used the cleaning equipment were: commercial vacuums - 5 hours per day; polishers - one hour per day, ‘blowers’ - once or twice a week for one hour, and ‘suckers’ - once or twice a week for one hour. The Respondent Employer filed a statement by Ms Mazoudier, Griffith Area Manager, which stated that the backpack vacuum cleaners were used by Ms Flack for approximately three to three and a half hours a day and the polisher for approximately fifteen minutes per day. She stated that the duties over the 2 four hour shifts worked by Ms Flack, included wiping tables, emptying bins, cobwebbing, cleaning glass and outside sweeping, in addition to using cleaning and polishing equipment. In oral evidence Ms Flack detailed her various duties, however in adding up the times she assigned to them she exceeded her eight hour working day. Ms Flack’s evidence was that her supervisor Ms Mazoudier, was infrequently on site to monitor the actual work that was performed.
Ms Flack gave evidence that in or about early 2001 she started to experience dizziness, deafness, sinusitis and swollen glands on the right side of her neck. She attended her doctor and subsequently had hearing tests. She gave evidence that the machinery she used when working for the Respondent Employer was ‘noisy’ and that several machines had been ‘replaced’. She stated (statement dated 5 July 2002) that:
. . . All of the machines that I use are noisy. The noise varies from machine to machine. The new machines are less noisy at first but the more they are used the noisier they become.
In accordance with Regulation 227 of the Workers Compensation (General) Regulation 2003, a Certificate issued by a Medical Panel, pursuant to section 122 of the 1998 Act, prior to 1 April 2002, is binding and conclusively presumed to be correct as to the matters it certified in it. The Commission is thus bound by the determination that Ms Flack suffered a 10.4% binaural hearing loss.
Reports of audiometry testing undertaken for the Respondent employer by Unisearch Ltd, were in evidence. Dr Keith Post completed two reports, dated 24 May 1996 and 18 August 1996. Marion Burgess completed a report in February 2002 entitled ‘Noise Levels for Equipment Used by Tempo Cleaning Services Staff’. The Appellant worker submitted that these reports were of little persuasive value because they did not test the actual machines used by Ms Flack, rather they tested machines of the same make and brand. The Appellant submitted that the actual machines used were in various states of repair and, according to the evidence of Ms Flack, became noisier with repeated use.

DISCUSSION AND FINDINGS

Section 17(1) - Onus of Proof

The Appellant Worker submitted that the Arbitrator erred in finding that she had not discharged her onus in establishing that the Respondent was a noisy employer.
The Appellant worker has the onus of proving that the Respondent was a ‘noisy employer’ in the terms required by section 17(1) of the 1987 Act (Blayney Shire Council v Lobley & Another (1995) 12 NSWCCR 52 at 55 (Lobley)). This requires the worker to prove, on the balance of probabilities that her employment with the Respondent was ‘employment to the nature of which the injury was due’. Where the worker satisfies this test the ‘evidentiary onus then shifts to such employer sued to seek to establish that protective measures in fact in place excluded the possibility of any such injury’ (Lobley at 64). The Arbitrator did not err in his understanding and application of the relevant onus of proof.
As Justice Kirby said in Lobley:
. . . There is an element of artificiality in s17(1) of the Act. The injury, which is the result of a gradual process, is deemed to have happened at an arbitrary time, viz when the notice of injury is given. It is assigned to the employer at that time. But it is only assigned if that employer employed the worker in employment “to the nature of which” the injury was due.

Section 17(1) - Employment “to the nature of which the injury was due”

The Appellant Worker claims that the Arbitrator erred as a matter of fact and law in the application of section 17(1) of the 1987 Act.
The Court in Lobley, reviewed the relevant authorities in relation to the interpretation of section 17(1) of the Act, and similar provisions, and concluded (Cole JA), that:
. . .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 64)
and further
. . it is sufficient for a claimant worker to establish that the employment in which he was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. If evidence establishes that circumstance the worker satisfies the onus of establishing that at the time of giving notice he was employed in an employment to the nature of which the injury was due. (at 65)
Establishing that the ‘tendencies, incidents or characteristics’ of particular employment were of a type to give rise to hearing loss is a forensic task relying upon the proof of relevant facts about the specific employment, the applicability of various industry standards, expert scientific and acoustical testing and reports, and medical evidence in relation to the worker’s particular circumstances, vulnerabilities and injury. It will be for the decision-maker to weigh all of the evidence and, if satisfied, on a real, as opposed to merely theoretical level, that . . . there were a sufficient number of incidents, characteristics and tendencies in the workplace to translate into a permanent hearing impairment, then the employment could be characterized as “noisy” (Gordon v General Cargo Forwarders Pty Ltd [2000] 20 NSW CCR 577. See also Ambulance Service of NSW v Daniel (2000) 19 NSW CCR 697).
The parties were in agreement as to the relevant industry standards for occupational health noise, in particular the Factories (Health and Safety – Hearing Conservation) Regulation 1979 (NSW), and the Occupational Health and Safety (Noise) Regulation 1996 (NSW). The latter sets a LAeq noise level of 85dB(A) over 8 hours and a peak level of 140 dB(lin). This was taken into account by the Arbitrator in making his decision (reasons, paragraph 35).
The Appellant worker referred me to the decision of Walker J, in Gordon v General Cargo Forwarders Pty Ltd [2000] NSWCC 48 (18 August 2000) where relevant standards were set out and discussed. His Honour, notes that:
. . . the Worksafe Australia National Standard for Occupational Health Noise LAeq over 8 hours is also 85dB(A) and the peak 140dB(A). The national standard however states that over long periods levels between 75dB(A) and 85dB(A) may be a small risk to some people.
These standards must not be strictly applied without consideration of whether a worker has a particular vulnerability to hearing loss, as a result of exposure to noise, that is less than the minimum for risk (Price v NSW Fire Brigade, NSW CCR, No 31146/93, 27 Feb 1995, Unreported, Ambulance Service of NSW v Daniel (2000) 19 NSW CCR 697, Gordon v General Cargo Forwarders Pty Ltd [2000] NSW CCR 577).
The only expert acoustic evidence in this matter is the reports, filed by the Respondent, of Dr Post and Ms Burgess, dated 1996 and 2002 respectively. It is not clear from the Arbitrator’s reasons for decision what weight, if any, he gave to one or either of those reports (reasons paragraph 32). Neither of these authors examined or tested the actual equipment that was used by Ms Flack. Nor did the Appellant worker provide any expert acoustic evidence on the actual equipment used. However, both parties appear in agreement that the make and model of the equipment examined by Dr Post or by Ms Burgess were consistent with that used by Ms Flack (transcript of arbitration at pages 11 and 12). Accepting both of these reports, two of the machines exceeded 85dB(A), namely the Homelite Blower and the Victavac outdoor vacuum cleaner.
Both Dr Post and Ms Burgess stated that the Homelite Blower could be safely used for up to 3-4 hours per day without exceeding eight-hour equivalent continuous A-weighted sound pressure level LAeq, 8h, of 85dB(A). (Ms Burgess’s report at page 9). Ms Flack used this machine for a maximum of one hour at a time, twice per week.
Dr Post stated that the Victavac outdoor cleaner would need to be used for ‘more than about 190 minutes before the machine operator would receive a noise dose from it that was in excess of the NOHSC standard’. (Dr Post’s report at page 5). Ms Flack used the machine for a maximum of one hour at a time, twice per week.
The Robotic polisher, which Ms Flack stated she used for approximately one hour per day, exceeded 75dB(A) if used over 8 hours (Burgess report page 4).
The Appellant submitted, and I accept, that the Arbitrator made errors of fact in his findings, namely:
·At paragraph 32 the Arbitrator refers to the evidence of Dr Post and Ms Burgess and finds that . . . only the Homelite Blower and the Victavac Outdoor Cleaner would exceed the recognized standard of 84 dB(a) if used continuously for 8 hours per day. The evidence of Ms Burgess is that the Homelite Blower . . . could be used for 3-4 hours per day without exceeding eight-hour equivalent continuous A-weighted sound pressure level, LAeq, 8h, of 85dB(A). She found the Victavac 2000, at 82-83 dB(A) was one of 5 machines where the noise was close to the criterion value but as they are used for considerably less than 8 hours per day their use is not likely to lead to excessive noise exposure for the operator. Dr Post stated that the maximum permissible exposure duration on the Victavac 2000 outdoor vacuum cleaner was one and a half hours.
·At paragraph 34 the Arbitrator found that the Respondent provided protective ear apparatuses for the Applicant. The uncontradicted evidence of Ms Flack is that she was not provided with protective ear muffs until October 2001.
I am not satisfied that the factual errors set out above were so material to the Arbitrator’s decision that it should be set aside. Ms Flack, on her own evidence, did not use the Victavac outdoor cleaner for a period of more than one hour at a time, nor did she use the Homelite Blower for more than one hour at a time and then only on about one day per week. I accept her evidence in relation to the wearing of earmuffs.
In reviewing all the evidence as to the tendencies, incidents and characteristics of Ms Flack’s employment with the Respondent as a cleaner at Narrandera High School I am not satisfied, on the balance of probabilities, that her employment presented a real as opposed to a theoretical risk of sustaining hearing impairment. I find that:
·Ms Flack’s duties included wiping tables, emptying bins, cobwebbing, cleaning glass, outside sweeping and using cleaning and polishing equipment ( indoors and outdoors).
·She used a backpack Clean Tech, or Robotic or Electrolux, vacuum cleaner for up to five hours per day. None of these machines exceed 85dB(A) over 8 hours, which is the relevant noise safety standard set by both the Worksafe Australia National Standard for Occupational Health Noise and the Occupational Health and Safety (Noise) Regulation 1996 (NSW).
·She also used two pieces of outdoor cleaning equipment, namely the Homelite Blower and the Victavac, which exceeded 85dB(A) over 8 hours. While theoretically this carries a risk of Ms Flack suffering from hearing impairment, the reality was that she used them for only one hour per week. On the evidence before the Arbitrator, and before me on appeal, this is insufficient to cause hearing loss. No evidence was given to suggest that Ms Flack had a particular susceptibility to noise. Nor was there any evidence of particular incidents within Ms Flack’s employment where the noise levels were susceptible to sudden increases beyond acceptable standards (cf Gordon v General Cargo Forwarders Pty Ltd [2000] NSW CC 48). In my view her employment with the Respondent could not be characterized as ‘noisy’ given the very limited time she used these machines.
·Ms Flack did not wear protective earmuffs until about October 2001. Ms Mazoudier’s evidence is that they were provided earlier, and not worn. The lack of protective earmuffs would obviously increase the level of noise she was exposed to, however, she used machines that exceeded noise standards for only, approximately, two hours per week. The evidence does not support a conclusion that the lack of protective earmuffs was of such significance that it could be said the employment tended to give rise to the hearing loss that Ms Flack obviously suffers.
·I accept that Ms Flack, and her daughter who works in the same employment, perceived the cleaning equipment she used as ‘noisy’; however this evidence, without anything further, is not sufficient to prove that the equipment was beyond acceptable noise limits. I accept Ms Mazoudier’s statement that certain ‘old’ equipment was replaced because it was not in good condition, or not performing well, rather than because it was noisy.

Taking all the evidence into account, and considering the possibility that Ms Flack may have had a particular vulnerability to noise, I am of the view that the Arbitrator’s decision should be affirmed. I am satisfied that the Arbitrator did not err in finding that Ms Flack had not discharged the onus of proving that her employment with the Respondent was employment to the nature of which the injury was due. In my view the evidence does not disclose a real or practical, as opposed to a theoretical, risk that Ms Flack was in ‘noisy’ employment when employed by Tempo Services Limited from 28 January 1999 to the present.
I note that Ms Flack has essentially performed the same duties for over thirty years and has been employed by three different employers during that period. There is no doubt that she now suffers a debilitating binaural hearing loss, medically assessed at 10.4%. In her statement dated 5 July 2002 she notes that upon her change of employer in 1994 the same machinery was used, however, polishers and backpacks were updated. The expert acoustic reports do not relate to this period and it is therefore impossible to know whether Ms Flack was exposed to excessive noise during her earlier employment. In any event she has not sought to join earlier employers to her claim, which must be determined as it stands, against the Respondent Tempo Services Limited.

DECISION

The decision of the Arbitrator is confirmed.

COSTS

The appeal has been unsuccessful and costs fall to be determined in accordance with section 345 of the Act. That section provides, relevantly, that:
345Costs Penalties Where Appeal Unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)If the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)If the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1000 or such other amount, as may be prescribed by the Regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.

The parties are urged to come to an agreement as to costs, taking the above provisions into account.

Dr Gabriel Fleming
Deputy President

I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming, Workers Compensation Commission

Registrar

Date:

[2003] NSWWCCPD 23

26 May 2003