Millan v Technicolor Pty Ltd - [2012] NSWWCCPD 35

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Millan v Technicolor Pty Ltd [2012] NSWWCCPD 35
APPELLANT:		Sergio Millan
RESPONDENT:		Technicolor Pty Ltd
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-6305/11
ARBITRATOR:	Ms K Haddock
DATE OF ARBITRATOR’S DECISION:		27 March 2012
DATE OF APPEAL DECISION:		29 June 2012
SUBJECT MATTER OF DECISION:		Hearing loss; s 17 of the Workers Compensation Act 1987; expert evidence
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sanford Legal
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 27 March 2012 is confirmed. 2. No order as to costs.

BACKGROUND

The appellant, Sergio Millan, was employed by the respondent, Technicolor Pty Ltd (Technicolor), as a machine operator. He claims that, as a result of exposure to noise at the respondent’s premises, he suffers from industrial deafness.
On 24 February 2012, Mr Millan claimed, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), the sum of $9,625 in respect of a seven per cent whole person impairment as a result of industrial deafness. The deemed date of injury is said to be “November 2008”. The employer’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz) denied liability for the claim.
Contrary to the provisions of s 74, it failed to issue the worker with a notice identifying the issues in dispute. Nevertheless, it is common ground that there were two issues in dispute. The first issue was whether the applicant was exposed during the course of his employment with the respondent to noise to the nature of which his injury is due. The second issue was whether the worker had established that his employment with the respondent had the tendencies, characteristics and incidents capable of causing industrial deafness.
On 22 July 2011, Mr Millan lodged an Application to Resolve a Dispute in the Commission. His claim was in accordance with the demand referred to above.
On 25 August 2011, pursuant to an Application to Admit Late Documents, the respondent filed a Reply. The respondent raised a number of defences to the claim, but only those referred to above are pressed, and they were the only issues in dispute for determination by the Arbitrator.
On 24 February 2012, the matter was listed for an arbitration hearing before a Commission Arbitrator. Both parties were represented by counsel. The Arbitrator reserved her decision and a Certificate of Determination accompanied by a Statement of Reasons (Reasons) was issued on 27 March 2012, in which the following findings and orders were made:
“The Commission determines:

1. That the applicant did not sustain injury, being industrial deafness, arising out of or in the course of his employment with the respondent.

2. That there is an award in favour of the respondent.

3. That there is no order as to costs.”

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have submitted that the appeal can proceed on the papers, without a formal hearing.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

PRELIMINARY MATTERS

Section 352(3) is in the following terms:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
There is no dispute between the parties that the threshold requirements as to quantum and time, as found in the provisions of ss 352(3) and 352(4) of the 1998 Act, have been met.

THE EVIDENCE

Mr Millan submitted with his application a signed statement dated 21 July 2011. He stated he was then aged 70. He worked for the respondent from October 1994 to 2008. He was employed as a machine operator. He said that his duties included operating a noisy machine that packaged DVDs and CDs, and another machine that packaged CDs into cylinders. He said that it was impossible to speak while the machines were running and he had to raise his voice when he needed to be heard. He was not provided with earplugs or earmuffs.
Mr Millan stated that he has difficulty hearing properly and requires the television to be at an increased volume to hear it. He said that he had given a statement to the doctors and the specialists that he had attended in relation to his alleged industrial deafness, adding, “these are contained within the medical report served on behalf of my claim”. He then gave an account of the effect of his hearing impairment on his social and domestic life.
By Applications to Admit Late Documents, Mr Millan relied on three additional statements. In a signed statement dated 24 October 2011, which he said was in response to the respondent’s “reply”, he added some further detail in relation to the nature of his duties. He said that his job involved packing 120 DVDs per minute into three boxes. The boxes were then taped by a machine. He carried the boxes and placed them onto a pallet. Once the pallet was full, the pallet jack would be transported elsewhere.
Mr Millan worked on “three stations of the Kyoto machine”. All of the processing machines were very noisy. He was exposed to that noise, plus the noise of the pallet jack, from 7.00 am to 3.00 pm, Monday to Friday, for 23 years. In any one day, the pallet machine would move between 6–10 loads a day. He stood one metre from where the pallet jack was when it was at its “primary position”.
Between 7.00 am and 9.00 am, he took DVD covers from the machine and put CDs into the covers. From 9.00 am to 11.00 am, he moved on to packaging the DVDs into boxes. He said, “Throughout the day I was rotated to different Kyoto stations”.
Mr Millan said that the “slicks machine” located in the factory was also very noisy. He said that he stood near it all day. Further to this, the noise from all of the machines would carry throughout the concrete floors, which made the factory a very noisy environment. He attached a sketch of the factory floor to his statement.
Mr Millan made another signed statement on 9 November 2011. He stated that this was a further statement in response to the “reply”. In this statement, Mr Millan said that, initially, he worked in the respondent’s warehouse packaging videotapes and wrapping them with a plastic wrap machine. After three to four months working in the warehouse, he moved to the respondent’s factory. He said:
“I worked in the first factory from the middle of 1994 to 1998. My duties included working on the Kyoto stations, packing DVDs, shrink-wrapping DVDs and manually pushing the pallet jack full of DVD boxes to the outside area to be wrapped. These machines produced a significant amount of noise.”
During Mr Millan’s employment, the respondent moved premises to Lane Cove, where he remained working within the factory from 1998–2009, performing the same duties. He said that he worked on “all of the lines from Line 2 to Line 4 and Line K1 to K7. I was also involved in materials handling with the pallet jack”. He added that, due to the noisy environment and the different areas of the factory, everybody had to speak loudly.
Mr Millan also said:
“In 1988 I came to Australia on a music contract. From 1988 to 1995 I played in a Latino band on Saturday nights. From 1995 to date, I play guitar in a Mexican group named the ‘Los Gavilanes’ two or three times a year for special bookings only.”
He attached a photograph of the group.
In a further signed statement dated 8 December 2011, Mr Millan said:
“I was employed by the respondent for a period of 14 years from 1994 to 2008. During those 14 years I not only worked on the two machines as per the skills matrix (a document relied upon by the respondent) but I was also trained to use and did work with other machinery on the factory floor.”
He observed that the skills matrix is undated and only represented one period of his employment with the respondent.
Mr Millan said that, in addition to the wrapping machines, he was also trained to operate the Kyoto machines but, due to his poor eyesight, he did not operate them for any extended period. However, he did work amongst the Kyoto machines from 2002 to 2008. All employees at the time were trained to operate all of the machines and work in the vicinity of the machines. Mr Millan stated that the first Kyoto machine was placed on the factory floor in 2002 and every year after that more Kyoto machines were added to the factory floor. Prior to the Kyoto machines, there were equally noisy machines in the factory, which packaged VHS tapes. The noise levels from the old machines and from the Kyoto machines were equally loud during these 14 years of employment.
Mr Millan said that he also operated pallet jacks manually, which involved moving the pallets from the outside area where he was working and bringing empty pallets in to the factory floor. Contrary to the respondent’s assertion, he added that he did have the physical strength to move the pallets throughout the time that he was working for the respondent.

The medical evidence

Mr Millan relied upon a report of Dr S C Stylis dated 15 February 2011. Dr Stylis is an ear, nose and throat surgeon.
Dr Stylis obtained the following history:
“3. General history:
a. The worker has not been working for 2 ⅓ years.
b.The last noisy employer was Technicolor Pty Ltd where he worked for some fourteen years (1994 – 2008). Here he was a machine operator operating a machine that packaged DVD’s [sic] and CD’s [sic]. He would put them in one end of the machine which would pack them in a little plastic box and then seal it all with a plastic wrapping. He would be doing this all day. The machine was quite noisy and it was not possible to speak while it was going unless one got very close to the person’s ear and raised their voice significantly. He also used another machine in the establishment that would pack a stack of CD’s [sic] into cylinders.
c.Previous work history:
Before this he was working for TDC in exactly the same location for six years, in exactly the same work, the name changed in the year 1994. In other words, he worked for twenty years on the same job. He began when he first came out to Australia from Chile where he was involved in retailing and not exposed to any significant noise.
d.Ear protection (earplugs and or earmuffs).
No ear protection was worn.
e.Does the worker wear hearing aids? NO.”
Under the heading, “Previous incidents and conditions”, Dr Stylis noted the following history:
“The worker denies any other history of ear problems or infections, family incidence of deafness, head or neck injuries. Nor has the worker been subjected to inordinate noise in hobbies. There has not been exposure to any gunfire.
Medications:       Tablets for blood pressure
Major surgery:     Nil
General Health:    Good.”
After correction for the worker’s age (presbycusis), Dr Stylis assessed that Mr Millan suffered a 14.3 per cent binaural hearing impairment, which converts to a seven per cent whole person impairment.
Dr Stylis noted that the pattern of the worker’s audiogram was consistent with that seen in people who have chronic exposure to industrial noise. He concluded that the history, physical examination and audiogram supported the diagnosis and the extent of the industrial hearing loss.
Dr Stylis opined that there is some loss of hearing as a result of the cumulative effect of exposure to noise during the worker’s working life. He said:
“The last noisy employer appears to be Technicolor Pty Ltd where the noise exposure, in my opinion, had the tendencies, incidents and characteristics that would, on the balance of probabilities, give rise to a real risk of boilermaker’s deafness or deafness of similar origin. It establishes this industry/job as capable of causing and contributing to noise induced hearing loss.”
By footnote, Dr Stylis attributed the test to that identified in Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35.

Occupational noise survey

The respondent commissioned Dr Geza Benke, an occupational and environmental noise specialist employed by Hodson & Associates Pty Ltd, to conduct an occupational noise survey for their manufacturing facility, in combination with assessments of the noise exposure experienced by employees working within the facility. He produced a report on which the respondent relies dated 15 April 2009.
The key objective of the survey was to ascertain the impact of recently-added manufacturing plant to establish the occupational noise exposure of operators and other employees against the current regulatory noise exposure limits. In particular, the aim was to identify any personnel subject to unacceptable noise exposures.
Dr Benke provided a detailed description of the workplace and the employment processes, describing in particular the processing lines designated K1–7 (“K” standing for Kyoto) and the GIMA2 lines 2–4.
Dr Benke noted that the product was predominantly moved throughout the manufacturing facility with a hand-operated pallet jack which, due to its metal wheels passing over the concrete floors, was considered to be noisy.
The methodology employed included a combination of hand-held spot or instantaneous noise dosimetry and personal noise exposure measurements performed throughout the facility on 18 March 2009. Six workers, considered to be representative of their respective work areas, were fitted with personal dosimeters. Those staff included workers on the K2, 3 and 4 processing lines, two supervisors who supervised all areas, and the materials handling function. Spot testing using dosimeters was also carried out to assess the level of noise to which workers were exposed while working at the following locations in the respondent’s premises: K1, K7, GIMA2, Lines 2–4, and materials handling. The results of those combined assessments were compared to the regulatory noise limits specified in the New South Wales Occupational Health and Safety Regulation 2001.
The key finding of the assessment was that the occupational noise levels and personal noise exposure experienced in all manufacturing lines were less than the current regulatory noise limits, which specify an average or equivalent continuous sound level limit of 85 dB, or a peak level of 140 dB.
Dr Benke found that that one operator, Mr Stanley, whose work wholly comprised “materials handling” involving the use of the pallet jacks experienced a level of noise exposure in excess of the current regulatory noise limits.
The author concluded that the instantaneous or spot noise measurements were such that hearing protection was not recommended on any of the processing lines within the manufacturing facility. Recommendations were made to reduce the noise emitted from the hand jacks by retrofitting less noisy wheels or replacing them.

Alastair Jacob

Pursuant to an Application to Admit Late Documents dated 8 December 2011, the respondent relied on two email exchanges between Mr Jacob and Joanna Turnbull, the respondent’s solicitor. In the first email, dated 7 December 2011, Mr Jacob stated:
“Please see attached a skills matrix. Mr Milan [sic] is listed on the dayshift tab which highlights that he was only competent in the shrink-wrap machine. To be competent in the other stations he would have been required to pass a competency test. Mr Milan [sic] was not trained in this area.”
In a separate email, also dated 7 December 2011, apparently in response to Mr Millan’s evidence, Mr Jacob said:
“In response to Mr Milan’s [sic] statement, Mr Milan [sic] did not work on the Kyoto stations as he was not physically capable of keeping up with machine. Mr Milan [sic] was stationed at the heat shrink station on lines 2 or 4 to suit his needs.
Furthermore, Mr Milan [sic] did not have the skills to operate the Kyoto machines. I note in the hearing assessment report reading for the main control panel [sic]. This is the operators [sic] position. Mr Milan [sic] did not work as the pallet mover as he did not have the physical capacity to do this task.
I note that Mr Milan [sic] reports working in the factory from 194 [sic] to 1998 including working on the Kyoto machines. We did not have these machines till approximately 2002. At which point we had one kytoto [sic] DVD packing machine.
It should be noted that the noise assessment provided conducted in 2009 at the time of Mr Milan’s [sic] termination represented the height of production and as such in his previous years there were significantly less machines.”

FRESH EVIDENCE ON APPEAL

Fresh evidence on appeal is governed by s 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The admission of fresh evidence on appeal is discretionary. The principles relevant to the exercise of the discretion were recently considered by Deputy President Roche in Casey v Cullen Auto Group Pty Ltd[2012] NSWWCCPD 7, where the Deputy President said at [70]–[72]:
“70. Consistent with the subsection and the principles discussed in Akins v National Australia Bank(1994) 34 NSWLR 155 (Akins) and Nowlan v Marson Transport Pty Ltd[2001] NSWCA 346; 53 NSWLR 116 (Nowlan)), an applicant seeking leave to rely on fresh evidence (or evidence in substitution) must establish:
(a)that the evidence could not have been obtained with reasonable diligence for use at the arbitration;
(b)that the evidence is such that there is a high degree of probability that there would be a different result;
(c)that the evidence is credible, or
(d)that, in the circumstances of the case, it is just to admit the evidence.
71. In the event that evidence sought to be tendered is evidence that was available to the party, or could reasonably have been obtained by the party, before the proceedings concerned before the Arbitrator, then, in addition to the matters identified at [70] above, it will be necessary to establish that the failure to grant leave to admit the evidence will cause ‘a substantial injustice in the case’.
72. Essentially, the power to admit fresh evidence (or evidence in substitution) on appeal exists to serve the demands of justice. In an appeal from the Full Court of the Family Court of Australia dealing with what is arguably a broader provision relating to fresh evidence on appeal (s 93A(2) of the Family Law Act 1975) than exists in s 352(6), McHugh, Gummow and Callinan JJ said in CDJ v VAJ[1998] HCA 67; 197 CLR 172 (CDJ) (at [111]):
‘Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.’”

In supplementary submissions filed in response to the Opposition, the appellant sought leave “to adduce further medical evidence and related statement”.
The further evidence sought to be relied upon included:
(a)     Letter from Sanford Legal to Dr Stylis dated 10 April 2012;
(b)     Supplementary report from Dr Stylis dated 14 April 2012;
(c)     Letter from Sanford Legal to Dr Stylis dated 24 April 2012;
(d)     Supplementary report of Dr Stylis dated 24 April 2012;
(e)     Third further statement of applicant and enclosure dated 3 May 2012;
(f)      Letter from Sanford Legal to Dr Stylis dated 2 May 2012 (faxed to Dr Stylis on 7 May 2012);
(g)     Facsimile transmission dated 7 May 2012;
(h)     Supplementary report from Dr Stylis dated 9 May 2012.
Contrary to the appellant’s assertion that the documents were attached to the supplementary submissions, the Commission did not receive any further documentary evidence, nor was it served on the respondent.
Practice Direction No 6 sets out the requirements for seeking leave to adduce fresh evidence and/or additional evidence on appeal. The appellant has made no attempt to comply with Practice Direction No 6.
On 15 June 2012, I issued a Direction to the parties in the following terms:
“1. That in respect of any application to rely on fresh or additional evidence, the appellant is to comply in full with the requirements of Practice Direction No 6 by 4.00 pm on Wednesday 20 June 2012;
2. The respondent to the appeal is to file any supplementary submissions with respect to the application to rely on fresh or additional evidence by 4.00 pm on Friday 22 June 2012.”
In response to the Direction, the appellant filed “Appellant’s Further Supplementary Submissions” on 19 June 2012. The appellant rectified the deficiencies in relation to compliance with Practice Direction 6 with respect to the application to rely on fresh evidence and made further submissions with respect to the merits of the appeal.

The fresh evidence

The fresh evidence sought to be relied upon is summarised as follows:
(a)     The letter from Sanford Legal to Dr Stylis of 10 April 2012 encloses copies of the worker’s statements of 8 December 2011, 9 November 2011 and 24 October 2011, and seeks a further opinion from Dr Stylis concerning whether the worker’s employment could have given rise to industrial deafness, having regard to the tendencies, incidents and characteristics of the employment.
(b)     Dr Stylis’s report of 14 April 2012 (responding to the letter of 10 April 2012) states, after referring to the worker’s statements:
“He describes a number of machines and their functions. He describes it as noisy and more significantly states ‘due to the noisy environment and the different areas of the factory, everybody had to speak loudly’. This indicates the level of noise present over a long period of time, as was the duration of the worker’s employment, would be hazardous to hearing.
Such description is in keeping with the outline in my report of 15/2/11 and supports the principles laid down by the Deputy President of the Workers Compensation Commission in Dawson and ors t/as The Real [Cane] Syndicate v Dawson [2008] NSWWCCPD 35 in that, on the balance of probabilities, the noise had the tendencies, incidents and characteristics to give rise to a real risk of boilermaker’s deafness.”
(c)     In a further letter from Sanford Legal to Dr Stylis dated 24 April 2012, the doctor was asked to express his opinion on two further questions:
(i)Noting that the worker played in bands a few times a year during his employment with the respondent, but more regularly prior to the commencement of his employment, the doctor was asked to indicate whether he maintained the view that the respondent’s place of work was “noisy” “for the purpose of substantially contributing to our client’s industrial deafness”. If the doctor was of the view that the worker’s involvement with bands was also a contributory factor, he was asked to apportion the two causative factors.
(ii)Considering the worker’s statements and the history provided to him by Mr Millan, the doctor was again asked whether, in his opinion, the worker’s employment could have given rise to industrial deafness.
(d)     In a further report of 24 April 2012, Dr Stylis said:
“I cannot answer your question specifically. You tell me that he played ‘in bands a few times a year during his employment with the respondent but more regularly prior to the commencement of his employment’. There is no information as to how many years he played before; there is no indication of what he [sic] instruments he was playing; we don’t know how big the band was, whether there were ten people playing in the band or five; we don’t know where this band was playing in an enclosed theatre, function room or open air, so that the question is hard to answer.
As you are pressing for a response, I would say that if there was any dispute, then 10% can be deducted from the impairment assessed. Namely 10% x 13.4% BHI = 12%, which is equivalent to 6% WPI.
In answer to your question b. you will find the answer in my original report dated 15/2/11 on page 6 under clause 9b.”
(e)     In yet a further letter from Sanford Legal to Dr Stylis dated 2 May 2012, the doctor was provided with a copy of the “third further statement of applicant” dated 3 May 2012, together with a photograph of his quartet. The doctor was advised that the worker played an acoustic guitar in the quartet and identified him as the gentleman in the centre back row of the photograph. The doctor was asked, “In light of the further evidence, kindly comment on whether our client’s involvement playing in classical trio and in a quartet, as irregularly as he did, could have substantially contributed to his deafness”.
(f)      In the “Third Further Statement of the applicant”, Mr Millan said:
“1.My name is Sergio Millan. I still reside at Unit 15/43-47 Sheffield Street, Merrylands, NSW 2160.
2.I am providing this further statement to clarify my musical background and working career in Australia.
3.I arrived in Australia from Chile in 1988. In Chile I was employed as a motor mechanic. I had no problems with my hearing when I arrived in Australia.
4.I secured my first full time job in Australia 4 months after I arrived. I was employed in the TDC Factory from 1989 to 1994. From 1994 to 2009 I was employed by the Respondent.
5.I also played acoustic guitar in a Latino trio from 1988 to 1995. This trio consisted of two guitarists and one singer. We played in various clubs and at private birthday parties. We would have between 2 to 4 bookings per month on average. Our music was classical and background in style.
6.From 1995 to 2008 I played acoustic guitar in the ‘Los Gavilanes’ quartet. Our bookings decreased dramatically until we only had 2 to 3 bookings per year. The group finally broke up in 2008.
7.I am prepared to give oral evidence of the above.”
(g)     In response to the additional material, Dr Stylis provided a further report dated 9 May 2012. Based on the information that had been supplied to him, Dr Stylis said, among other things:
“No accurate assessment could be made with such meagre information.
…
As an arbitrary apportionment and taking the above figures and conditions into consideration I would say that a deduction of 20% of the total hearing impairment would be in order. This would reduce the WPI from 6%. Whether the 20% is deducted from the adjusted total BHI (13.4%) or whether it is calculated on the WPI (7%) the result is still 6% WPI.
The percentage of hearing impairment due to industrial noise is assessed at 6% WPI.”

Submissions in support of the application for fresh evidence

The appellant submits that both limbs of s 352(6) are satisfied, that is, he submits that the additional evidence could not reasonably have been obtained and that the failure to grant leave would cause substantial injustice.
The appellant submits that, had a s 74 notice been issued, it would have been in a position to adduce the material in question at arbitration, rather than with leave in this appeal. It submits that the Commission should adopt a more flexible approach to fresh evidence in circumstances where no s 74 notice was issued (Irvin v LA Logistics Pty Ltd [2010] NSWWCCPD 40 (Irvin)).
The appellant submits that, with respect to Dr Stylis’s evidence:
“certain concerns regarding this report, and the basis for same, were raised during the arbitration and are reflected in the learned arbitrator’s decision. Therefore, the supplementary evidence regarding Dr Stylus’ [sic] opinion could not reasonably have been obtained prior to the arbitration.”
The appellant submits that, given the beneficial nature of the legislation, it would be unjust for the Commission to exclude the further evidence from Dr Stylis in circumstances, it is submitted, that the only real dispute is in relation to the question of causation of the worker’s hearing impairment.
The appellant submits that this is an unusual matter and is atypical in that the case has been argued on the basis of medical evidence on one side and expert evidence as to sound levels on the other. On that basis, it should be considered exceptional and a basis for granting leave (Naidu v Able Manufacturing Pty Ltd [2007] NSWWCCPD 237 (Naidu)).
The appellant submits that a “relevant factor supporting the exercise of discretion in favour of the appellant is that the further material adds to that which was known by the arbitrator” (Bricknell v TAC Pacific Pty Ltd [2011] NSWWCCPD 53 (Bricknell)).
The material in question is in the nature of “evidence in addition to or in substitution” of the evidence below rather than “fresh evidence”, and therefore the exercise of the discretion to grant leave is more flexible (Haider v J P Morgan Holdings Aust Ltd t/as J P Morgan Operations Australia Ltd [2007] NSWCA 158 (Haider)).

Opposition to the fresh evidence

The appellant’s Application to Rely on Fresh Evidence is opposed. The respondent says that it did not issue a s 74 notice, but submits that it was unaware of the worker’s claim until the proceedings were lodged in the Commission. This is confirmed by the letter from the Claims Assistance Service dated 30 June 2011, confirming that Allianz had not been notified of Mr Millan’s claim.
At the teleconference on 7 October 2011, the appellant consented to the proceedings being litigated on the basis of the dispute as identified by the respondent in the Reply and on the basis of the evidence attached to the Reply. The appellant had six weeks between the Reply being filed and the teleconference taking place to consider whether further evidence was required by the appellant, and the only additional evidence sought to be adduced was an additional statement from the appellant worker.
Further, the respondent submits that the arbitration did not take place until 24 February 2012, and therefore the appellant had some six months to obtain the additional evidence it felt it required to respond to the matters in dispute.
The respondent submits that any deficiencies in the evidence of Dr Stylis would have been apparent to the appellant prior to the arbitration. It submits that the appellant should not now be afforded the opportunity to rely on additional evidence to strengthen his case.
The respondent submits that, if Dr Stylis’s report is admitted into evidence, it should be given minimal, if any, weight on the issue of “noisy employment”. There is no evidence that Dr Stylis has been given a copy of Dr Benke’s report and therefore his opinion is not based on all relevant information.

Discussion

Dr Stylis’s report of 14 April 2012 is in response to a request from Mr Millan’s solicitors dated 10 April 2012 to express an opinion as to whether Mr Millan’s employment could have given rise to industrial deafness based upon the worker’s signed statements of 24 October 2011, 9 November 2011 and 8 December 2011. All of those statements were made by Mr Millan prior to the arbitration hearing. No attempt has been made to explain why Dr Stylis was not asked to comment on that evidence before the hearing. Dr Stylis is an independent medical examiner who first examined the worker in February 2011. There is no apparent reason why the appellant could not have approached Dr Stylis prior to the arbitration hearing if he wished to seek further evidence from him based on the worker’s evidence.
The opinion expressed by Dr Stylis is itself based upon subjective evidence from the worker which the Arbitrator found to be unreliable. No challenge has been made to the Arbitrator’s findings concerning Mr Millan’s evidence. The statements are internally inconsistent. In the statement of 9 November 2011, Mr Millan said that he worked on the factory floor from the middle of 1994 until 1998 and his duties included working on the Kyoto machines. However, in his statement of 8 December 2011, he said that the first Kyoto machine was not installed until 2002. However, Mr Millan then conceded in his statement of 8 December 2011that, although he was trained on the Kyoto machines, due to his poor eyesight, he did not operate them for any extended period.
It is not apparent from Dr Stylis’s report of 14 April 2012 just what history he is relying upon in order to form the conclusion he did. By then, he had obtained his own history from the worker and had access to three supplementary statements, all of which describe his duties differently. These inconsistencies undermine the weight to be placed on Dr Stylis’s report even if it was to be admitted in evidence.
Although Mr Millan made reference to operating the pallet jack in each of the statements sent to Dr Stylis for his further opinion, he was not the materials handler, and using the pallet jack was not a major component of his work. This also undermines the weight to be given to Dr Stylis’s opinion. For these reasons, plus the fact that Dr Stylis did not have access to Dr Benke’s report, the report of 14 April 2012 adds little to the evidence that was already before the Arbitrator. Given that there is no apparent reason why this material could not have been placed before the Arbitrator, and appears to be an attempt to rectify a deficiency in the evidence as found by the Arbitrator, I refuse leave to admit the report.
Dr Stylis’s report of 24 April 2012 is an attempt to address the question of the extent, if any, to which Mr Millan’s activities as a musician contributed to his hearing impairment. As with his earlier report, no attempt has been made to explain why this material could not have been prepared prior to the arbitration hearing. The information concerning the extent of Mr Millan’s activities as a musician was readily available to the appellant’s legal representatives and they could, if they had turned their minds to it, had Dr Stylis address its impact on the worker’s case prior to the hearing.
The additional report, if admitted, is unlikely to have any impact on the outcome of the appeal. Although the respondent pointed to Mr Millan’s activities as a musician as a possible contributing cause to his deafness, the case was run and decided on the issue of whether Mr Millan’s employment by the respondent was employment to the nature of which his injury was due. The respondent did not argue that his impairment was due to playing in a band. Its case was that Mr Millan’s exposure to noise in the course of his employment was not excessive and therefore his employment with the respondent was not employment to the nature of which his injury was due. For these reasons, I reject the admission of the report of Dr Stylis of 24 April 2012.
I now turn to the third further statement of the worker, Mr Millan, dated 5 May 2012. This further evidence of the worker was prepared after the Arbitrator’s decision. The statement provides background regarding Mr Millan’s employment in Chile before coming to Australia and a brief period of employment after he first arrived in Australia. The statement then turns to some further brief information concerning his engagement as an acoustic guitarist in a Latino trio between 1988 and 1995, and his engagement as an acoustic guitarist in a quartet, “Los Gavilanes”, from 1995 to 2008. The statement was provided to Dr Stylis and led to his report of 9 May 2012. Dr Stylis was asked to comment in light of the further evidence on whether Mr Millan’s involvement in playing in a classical trio and then the quartet as irregularly as he is alleged to have done could have substantially contributed to his deafness. Dr Stylis replied by restating the brief evidence and noting that no accurate assessment could be made with “such meagre information”. He concluded by saying:
“As an arbitrary apportionment and taking the above figures and conditions into consideration, I would say a deduction of 20% of the total hearing impairment would be in order.”
In his first report of 15 February 2011, Dr Stylis asked Mr Millan whether he had been subjected to any inordinate noise in his hobbies. Clearly, Mr Millan withheld from Dr Stylis the information concerning his activities as a musician. Notwithstanding Mr Millan’s failure to disclose it, his activities as a musician were disclosed by Mr Jacob in his letter to Allianz on 2 August 2011, referred to at page 14 of the Reply. That should have alerted the appellant’s solicitors that there was an issue concerning a possible alternative cause of the worker’s deafness, and it should have caused them to make appropriate inquiries with the worker and with their expert witness. Attempting to do that after the decision has been handed down is merely an attempt to rectify an omission in the evidence before the Arbitrator after the event.
The terms of s 352 of the 1998 Act prohibit the Commission from granting leave to admit fresh evidence or further evidence on appeal unless it is satisfied that the evidence concerned was not available to the party and could not reasonably have been obtained by the party before the proceedings.. The appellant cannot satisfy that provision, notwithstanding his submission to contrary. The issues had been identified in the respondent’s Reply. The appellant had every opportunity to address those issues by introducing the evidence he now seeks to rely upon at the arbitration hearing had he elected to.
In terms of satisfying the second limb of s 352(6), I am not persuaded by the appellant’s submissions that it is in the interests of justice that any of the fresh evidence be admitted. The appellant’s submission that this is an unusual matter, in that the respondent elected to rely on expert evidence as to the worker’s noise exposure rather than rely on medical evidence, is not persuasive. It is not uncommon in the Commission for cases to be contested on the basis of objective expert evidence in relation to noise exposure as opposed to relying on subjective evidence from the worker and an expert medical practitioner. I reject the submission that the case should be considered exceptional as a basis for granting leave to adduce the further evidence. I would also add that decision in Naidu on which the appellant relies was decided under the terms of s 352(6) as it was prior to the amendments to that provision which came into operation on 1 February 2011.
I reject the submission that the discretion should be exercised in favour of the appellant because the material “adds to that which was known by the Arbitrator” (Bricknell). The Commission exercised its discretion in favour of Mr Millan to permit him on three occasions after his application was filed to amend and supplement his evidence. In my view, Mr Millan had every opportunity to present his evidence, and did so, in the form of his initial statement and three supplementary statements. The additional medical evidence, in my view, does not add anything to that which was already before the Arbitrator in terms of the issues in dispute. I have come to that view having regard to the comments of his Honour Justice Basten in Haider at [45].

I also reject the appellant’s submission that the rejection of the fresh evidence would result in a substantial injustice. I am not satisfied that the admission of the fresh evidence will result in a different outcome. The material does not materially add to the evidence already before the Arbitrator and does not address the Arbitrator’s principal ground for deciding the case adverse to the worker; namely, the respondent’s evidence, which the Arbitrator accepted, that the occupational noise survey performed during a period of peak production generated noise levels that were less than current regulatory noise limits. Having concluded that the fresh evidence could not have affected the result of the appeal, it could not be said that excluding it would result in any injustice or any substantial injustice.
For the foregoing reasons, I refuse the appellant’s application for leave to rely on fresh evidence on appeal.

ARBITRATOR’S REASONS

The Arbitrator formed the view that Mr Millan’s evidence was unsatisfactory in many respects. The history given to Dr Stylis by Mr Millan was that he operated a machine that packaged DVDs and CDs, that he did it all day, and that the machine was “quite noisy”. He also said that it was not possible to speak while the machine operated unless one was close to another person’s ear or raised one’s voice significantly. The respondent’s evidence is that this is not the case.
After filing the application with a brief initial statement referring to his duties as a machine operator, Mr Millan later expanded his evidence to state that he was rotated to different Kyoto machines, was exposed to the noise of pallet jacks, and stood near the “slicks machine”. Still later, he said that he pushed the pallet jack full of DVDs and worked on all of the lines from line 2 to line 4, and lines K1 to K7. He did not tell Dr Stylis that he was exposed to the noise of pallet jacks.
Although Mr Millan said that he worked on Kyoto machines from mid-1994 to mid-1998, the first Kyoto machine was not purchased until 2002. In his statement of 8 December 2011, he said that he did not use the Kyoto machines for extended periods, due to his poor eyesight, but worked “amongst” the machines.
Dr Stylis specifically asked Mr Millan whether he was subjected to inordinate noise in his hobbies. The worker denied this and failed to reveal to Dr Stylis that he came to Australia on a music contract and, from 1988 to 1995, played in a Latino band on Saturday nights and, since 1995, has played guitar in a band several times a year.
Whatever the applicant’s exposure was to the Kyoto machines, the occupational noise survey showed that employees working on those machines were not exposed to excessively loud noise or, at least, noise that exceeds the acceptable level of 85 dB on a continuous basis except in respect of the pallet jack operator.
Although Mr Millan stated that he used the pallet jack, he was not the materials handler, and moving the pallet jack was not a major component of his work. The Arbitrator concluded that those employees who wore personal dosimeters during the testing had some exposure to the noise of pallet jacks while the materials handler performed his duties, but none were assessed as being exposed to excessive noise.
The Arbitrator accepted that the occupational noise survey was performed at a period of peak production and that, in prior years, there had been significantly less production. The report confirmed that the key objective in carrying out the assessment was to ascertain the impact of “recently added manufacturing plant”. Even at these peak production levels, the noise levels measured in all of the manufacturing lines was less than the current regulatory noise limits.
The Arbitrator dismissed as irrelevant the worker’s submission that the survey was performed not in response to the worker’s claim but to ensure the respondent met its occupational health and safety obligations. The Arbitrator noted that there was no submission that the testing was not properly performed or failed to measure the noise levels in an area where Mr Millan claimed to have been employed. The operators on all “lines”, as well as the materials handler, were tested, and it was only the latter who was found to be exposed to unacceptable levels of noise.
The Arbitrator rejected the submission that the onus was on the respondent to establish that Mr Millan was exposed to noise before commencing in his employment and it had not discharged that onus. The Arbitrator observed that the onus remained on the worker to establish his claim on the balance of probabilities. The respondent was not required to prove that the worker was exposed to other sources of noise.
The Arbitrator noted that, while it is correct, as Beazley JA held in A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; 14 NSWCCR 158 (Civitarese) at 160 that “[a]ll that is necessary under the section 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”, the applicant had failed to do that.
The Arbitrator drew no inference from the failure of the respondent to adduce medical evidence, particularly in view of the restrictions placed on obtaining such evidence by the WorkCover Guidelines on Independent Medical Examinations and Reports and noted that the dispute between the parties was not concerned with the medical evidence, but was concerned with whether Mr Millan was exposed to noise to the nature of which his injury was due. If he had succeeded in establishing an injury, the matter would have been referred to an Approved Medical Specialist for assessment of the quantum of any impairment.

SUBMISSIONS ON APPEAL

Grounds of appeal

The appellant submits that the Arbitrator erred by:
(a)     Misapplying the standard of expert evidence to be adduced by a worker regarding acoustic engineers’ reports;
(b)     Misattributing the onus of proof regarding the respondent’s hypothesis on causation;
(c)     Failing to draw an adverse inference relating to the respondent’s failure to adduce medical evidence;
(d)     Failing to afford procedural fairness in relation to findings regarding WorkCover guidelines;
(e)     Failing to afford procedural fairness relating to findings regarding the use of dosimeters by the respondent’s expert;
(f)      Making findings regarding dosimeters not reasonably open on the evidence.

SUBMISSIONS

The appellant submits that his case is based on a combination of expert medical opinion relating to causation, namely, the report of Dr Stylis dated 15 February 2011, in conjunction with the worker’s evidence. The appellant submits that this evidence is precisely the type of evidence required of a claimant worker in an industrial deafness case, citing Lightfoot v Riley [1999] NSWCA 155 (Lightfoot).
The appellant submits that, in the present case, the appellant is the only party to rely on expert medical evidence. There was nothing before the Arbitrator to detract from the correctness of the opinion of Dr Stylis.
The appellant submits that, in an industrial deafness case, a claimant worker is presented with a low threshold in terms of the type of expert evidence which would be required of him or her to suceed. The appellant cites the passage from Beazley JA’s judgment in Civitarese referred to at [83] of this decision.
In the present case, the appellant submits that the only evidence of weight going to the question as to whether the appellant’s employment was noisy was the evidence of the worker and the report of Dr Stylis. The report of Dr Benke did not address the applicant’s employment and, in any event, found that some employees were subjected to inappropriately high levels of noise.
It is submitted that the correspondence from Mr Jacob is self-serving and carries no persuasive weight, in that there is “no real indication” as to the extent of the manager’s knowledge of noise levels.
It is further submitted that the most persuasive evidence is the worker’s own evidence, as he was best placed to determine whether or not the locations at which he was required to work were noisy. In contrast, a person in a managerial role would be expected to have a far less detailed appreciation of the various noises on the work premises.
The appellant submits that “[w]ith respect, the approach which seems to be developing in the Commission seems to be inconsistent with that of the District Court in relation to industrial deafness matters”. The appellant relies on Robertson v WorkCover Authority of New South Wales [2011] NSWDC 28 (Robertson). It is submitted that the District Court, applying almost identical legislation in this respect, did not point to any need for any evidence apart from lay and medical evidence in establishing industrial deafness.
The appellant further submits, referring to the decision in Salama v Q Catering Ltd [2009] NSWWCCPD 92 (Salama):
“the Commission appears to have deviated from the binding authority in Civitarese. In this matter the learned Deputy President, following her decision in Despotoski v Qantas Airways Ltd [2009] NSWWCCPD 42 [(Despotoski)], followed at paragraph [89] that a worker should fail due to an absence of evidence that the noise survey did not address [the] worker’s particular employment.”
It is submitted by the appellant that “recent authority” in the Commission is erroneous because it sets an unduly high standard of expert evidence required of a worker in an industrial deafness case. Such a standard is contrary to the standard in Civitarese, which does not require the establishment of evidence of decibel levels, etc within a particular area. The only way that standard could be met is by workers commissioning acoustic engineers, which is not financially viable in most cases. In applying beneficial legislation, the Commission should not expect that standard of a claimant worker.
In Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267 (Strong), the High Court accepted the slightest evidence as to causation from a plaintiff which had not been rebutted by the defendant. If the respondent was to establish that the worker’s deafness was caused by something other than his employment, the respondent bears the onus of proof.
The appellant submits that the Arbitrator erred (at [65]) in finding that “the respondent is not required to prove that he was exposed to other sources of noise”. The appellant submits that this is not the case because the respondent ran a positive defence that there were other sources of noise, that is, the worker’s involvement with music bands.
The appellant submits that it has recently been held in the Northern Territory, in the context of workers compensation legislation in that jurisdiction, that the onus of proof as between parties must be determined by reference to first principles (Millar v ABC Marketing & Sales Pty Ltd [2012] NTSC 21 (Millar)).
It is further submitted that the Arbitrator erred in not drawing a Jones v Dunkel inference (Jones v Dunkel [1959] HCA 8; 101 CLR 298; ALR 367) from the respondent’s failure to adduce medical evidence. It is submitted that the Commission should draw an inference adverse to the respondent from its failure to adduce medical evidence. It is submitted that it should be inferred that the respondent was not able to obtain a favourable medical report.
The appellant submits that the Arbitrator’s reliance on the WorkCover Guidelines on Independent Medical Examinations and Reports, with respect to the Jones v Dunkel issue, was an error. He submitted that the Arbitrator did not point to a specific guideline to support the finding. It is also submitted that, if the Guidelines do support the Arbitrator’s finding, then the Guidelines “would necessarily be ultra vires to the legislation under which they are purported to have been enacted since the legislature could not have intended for the Guidelines to override such basic common law principles”. Further, it is submitted that the appellant has been denied procedural fairness in this respect, as the question of the Guidelines was “not a feature of the hearing”.
The Arbitrator erred by inferring that those employees who wore dosimeters would have had some exposure to noise made by pallet jacks. The appellant submitted that the inference was not open on the evidence. Further, the appellant submits, “nor was procedural fairness afforded to the parties in making submissions in relation to how the test is carried out”.
Although the rules of evidence do not apply in the Commission, the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita) are relevant, if not to admissibility, at least to the weight attributable to expert reports. It is submitted that, in Bi-Lo Pty Ltd v Saunders [2007] NSWWCCPD 235 (Saunders), it was held that “the report must actually establish a causal connection”.
The Benke report was either inadmissible or carried no weight for the following reasons:
(a)     It was not created for the proceedings;
(b)     It did not address the medical issues relating to hearing loss;
(c)     It did not actually touch upon the applicant’s employment;
(d)     Any general assessment of noise in various places at the respondent’s place of business is irrelevant (that is, it must relate to the applicant’s own circumstances).
It is submitted that the Arbitrator erred in applying Burke CCJ’s judgment in Ilievski v Sutherland Shire Council (unreported, 6 March 2001) (Ilievski) in finding that a worker’s subjective account of noise is not sufficient where there is expert evidence that a particular employment was not noisy. The authority is distinguishable on the basis that there was no evidence before the Commission that the worker’s particular employment was not noisy, because the expert’s report does not address the worker’s own unique employment situation. In any event, there was expert evidence, the report by Dr Stylis, to support the subjective perspective of the worker.
I have had regard to the respondent’s detailed and cogent submissions. I do not propose to reproduce the submissions. I will, however, refer to them as necessary in the discussion passages.

DISCUSSION

This appeal is brought pursuant to s 352 of the 1998 Act. Pursuant to s 352(5), the appeal is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or a new hearing.
The appellant’s submission that the only evidence going to the question of whether the appellant’s employment was noisy was the evidence of the worker and the report of Dr Stylis is clearly wrong. The evidence of Dr Benke was directly related to that issue.
The appellant submits that the Arbitrator misapplied the authority in Ilievski, in which Burke CCJ said:
“Miss McDonald for the respondent has cited a number of authorities: AIS v Jantzen Court of Appeal (1983) 57 WCR 145: Galdemar v Astra Enterprises (1998) 17 NSWCCR 155. Both of those cases were cases in which there was scientific evidence as to noise levels. In my view, the worker is not obliged to establish his case by scientific evidence as to noise levels. I think those cases are authority for the fact that a subjective account of noise as such does not suffice if there is particular evidence as to noise levels in the particular employment and they are insufficient to pose a risk to hearing.”
The appellant submits that the Arbitrator erred in relying upon this passage from Ilievski on the basis that this case is distinguishable from Ilievski because the particular employment of the worker was not established, as the Dr Benke report did not address the worker’s own unique employment situation. I reject the submission. The noise survey did address the worker’s own employment circumstances:
(a)     Mr Millan worked at Technicolor’s manufacturing facility at Alexandria New South Wales, which is the site surveyed by Dr Benke;
(b)     Dr Benke’s report relates to noise exposure in the role and duties undertaken by Mr Millan in his employment, which were tested in the noise survey dosimeter testing;
(c)     The testing was conducted in 2009, just months after the appellant ceased employment with the respondent.
The tests carried out by Dr Benke were comprehensive and included all of the processing areas where Mr Millan said he worked. The appellant asserts that the noise testing did not address the worker’s own employment circumstances, but he has failed to call any evidence or make any persuasive submission as to why the methodology adopted by Dr Benke was deficient, or why the conclusions he reached are not an accurate assessment of the level of noise to which the worker was exposed.
The appellant’s reliance on the decision in Lightfoot, in support of its submission that the appellant’s evidence is to be preferred, is misplaced. In Lightfoot, there was no issue that the worker suffered industrial deafness in the course of his employment. The issue for determination in that matter concerned the extent to which the worker’s damages at common law were to be adjusted to reflect the value of rights arising under the 1987 Act which had not crystallised by any award or settlement at the time of the verdict.
I also reject the appellant’s argument that there was nothing before the Arbitrator to detract from the correctness of the opinion of Dr Stylis. Dr Benke’s evidence was clearly relevant to the principal issue in dispute, namely, whether Mr Millan’s employment with the respondent had the tendencies, characteristics and incidents capable of causing industrial deafness. There was no challenge to Dr Benke’s expertise and the Arbitrator was entitled to give it weight in determining whether it was to be preferred to the appellant’s evidence.
The appellant submitted that, although the rules of evidence do not apply in this jurisdiction, the evidence must be relative and probative to a fact in issue (r 15.2). The appellant further submits that the report of Dr Benke was either inadmissible or carried no weight for the reasons referred to at [102] of this decision. I accept the respondent’s submission that the fact that the noise survey was not created for the purposes of these proceedings does not detract from its relevance or probative value. The report directly concerns the workplace which Mr Millan alleges to have been noisy, and it is directly relevant to the question of whether Mr Millan’s employment with the respondent was employment to the nature of which the injury was due.
The appellant submitted that Dr Benke’s report did not satisfy the requirements of Makita. The basis of that submission is that the report was not directly concerned with the worker’s actual employment but, rather, was a report in relation to the respondent’s workplace generally. I reject the submission. There has been no challenge to Dr Benke’s expertise or that the opinion proffered was not wholly or substantially based on the witness’s expert knowledge. Dr Benke went to considerable lengths to set out the methodology and the facts observed by him, nor was there any challenge to the facts referred to by Dr Benke as forming a proper foundation for the opinion he expressed.
The appellant alleges that the Arbitrator was wrong to prefer the noise survey to the opinion of Dr Stylis. He alleges that the Arbitrator was wrong to assume that the employees who wore dosimeters were exposed to the noise of pallet jacks. He alleges that that finding was not open on the evidence. The Arbitrator’s finding with respect to the exposure to the noise of pallet jacks is supported by the following facts:
(a)     The survey was conducted in respect of the manufacturing facility at which Mr Millan was employed during normal manufacturing operations and associated activities;
(b)     The report confirms that pallet jacks were used during the survey;
(c)     The survey report specifically identified six employees who wore dosimeters. Four of them worked on lines which involved pallet-loading and one of the employees worked in the materials handing role. Dr Benke reported that it was the noise emanating from the movement of the pallet jacks that was the most significant cause of the noise exposure.
For these reasons, it was open to the Arbitrator to find that the employees who wore dosimeters were exposed to the noise of pallet jacks.

Further, I reject the submission that the most persuasive evidence of noise levels within the respondent’s premises is the worker’s own evidence for two reasons. First, the Arbitrator found the worker to be unreliable, a finding which has not been challenged and was one that was clearly open to the arbitrator for the reasons given by the Arbitrator and for the reasons discussed at [62] of this decision. Second, the worker’s subjective account of noise exposure will generally not be preferred if there is particular evidence as to the noise levels in the particular employment (Ilievski).
The fact that the noise survey does not address the medical issues relating to the hearing loss does not make the evidence inadmissible or without weight, having regard to the type of evidence it related to. I reject the submission that the report was either inadmissible or lacked weight because “any general assessment of noise in various places at the respondent’s place of business is irrelevant”. It was directly relevant for the reasons given. Contrary to the appellant’s submission, the issue is not whether the employment caused the worker’s hearing impairment as submitted. Proof of actual causation is not required. All that is necessary is for the worker to prove that the employment was one to which the nature of the injury is due (Civitarese).
I reject the submission that the evidence of Mr Jacob was self-serving and of no weight. Mr Jacob’s evidence was admitted without objection from the appellant. There was no submission to the Arbitrator with respect to Mr Jacob’s evidence. It is apparent from his evidence that Mr Jacob had direct knowledge of the worker’s experience, training, skills, duties and physical attributes.
The appellant’s submission at [92] with respect to “the approach which seems to be developing in the Commission” is unhelpful in the context of resolving the issues on this appeal. The reference to Robertson involved proceedings before Neilson DCJ on an application pursuant to s 10D of the Workers Compensation (Bushfire, Emergency and Rescue Services) Act 1987. Contrary to the appellant’s submission that the case is authority for the proposition that there is no need for evidence other than lay and medical evidence to establish an entitlement to compensation, Neilson DCJ at [16] pointed to the absence of “hard evidence” of noise exposure as one of the difficulties his Honour faced in determining the level of noise to which the plaintiff was exposed.
The appellant’s submission with respect to the decisions in Despotoski and Salama as giving rise to a departure “from the binding authority in Civitarese” does not advance the appellant’s appeal for a number of reasons. First, the Arbitrator did not rely on Despotoski or Salama in reaching her conclusions. Second, Civitarese was concerned principally with identifying the employer liable to pay compensation. However, the Arbitrator’s conclusions are not inconsistent with Beazley JA’s observations, namely, that in order to succeed in a claim for industrial deafness, the worker is required 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. Proof of actual causation is not required. The approach adopted by the Arbitrator in resolving the issue in this case, namely, whether the worker had engaged in employment to the nature of which his injury was due, did not contravene the principles discussed in Civitarese. Third, the decisions in Despotoski and Salama are not authority for the proposition that noise surveys are required to establish an entitlement to compensation for hearing impairment. In Despotoski at [44], the Acting Deputy President said:
“Whilst it is not necessary for a worker to call an acoustics engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say ‘my employment was noisy and I have boilermaker’s deafness’.”
If what is meant by “recent authority” by the appellant at [94] is a reference to Despotoski and Salama, the Acting Deputy President in those cases merely determined the issues on the evidence before her, which included noise surveys. Those decisions are not authority for the proposition that noise surveys are required to establish an entitlement to compensation, and I reject the submission that there is “an unduly high standard of expert evidence required” in order for a worker to establish an entitlement to compensation for industrial deafness. In both of those cases, expert evidence as to the level of noise exposure was tendered and relied upon, along with the lay and medical evidence.
The appellant’s submissions with respect to the significance of the High Court’s decision in Strong to these proceedings are:
(a) First, that the High Court “accepted the slightest evidence as to causation from the plaintiff which had not been rebutted by the defendant”, and
(b) Second, if the respondent intended to establish that the worker’s cause of his deafness was something other than the employment, then the onus fell to the respondent on that issue.
Strong involved an appeal from the New South Wales Court of Appeal concerning a claim for personal injury for damages. The case involved a plaintiff who walked with the aid of crutches. One of the crutches came into contact with a greasy chip in the vicinity of the defendant’s premises. The case concerned issues of causation for damages and a consideration of the requirements of the Civil Liability Act 2002 (NSW). The appellant relies on the decision in Strong “to support the submission that a suggestion by the Respondent that some other cause may have existed for the Appellant’s deafness is not an answer to the worker’s claim for compensation”.
As noted at [3] of this decision, there were only two issues before the Arbitrator; namely, whether the worker was exposed to noise to the nature of which his injury was due, and, secondly, whether his employment with the respondent had the tendencies, characteristics and incidents capable of causing industrial deafness. The onus of proof on those issues is on the applicant worker. While the respondent may have proffered another likely explanation for the worker’s deafness, the case was not argued or decided on the basis that Mr Millan’s hearing impairment was due to his activities as a musician. It was run and decided on the basis that the evidence failed to establish that the level of noise to which the worker was exposed in his employment with the respondent was sufficient to give rise to his hearing impairment.
The appellant submitted that it has recently been held in the Northern Territory case of Millar, in the context of workers compensation legislation in that jurisdiction, “that the onus of proof between the parties must be determined by reference to first principles”. In the appellant’s further supplementary submissions, he conceded that, while the decision in Millar is not binding on the Commission, it has persuasive force to support the appellant’s submission that, by making moment of the appellant’s musical endeavours, the respondent thereby assumed the burden of proof on that particular issue. Although the respondent pointed to an alternative cause for the worker’s hearing loss, that did not relieve the appellant of the onus of establishing the elements of its case, that is, that the worker’s hearing impairment was due to employment to the nature of which his injury was due. The appellant failed before the Arbitrator because it failed to discharge that onus.
I do not accept the appellant’s submission that the Arbitrator erred in declining to draw an adverse Jones v Dunkel inference from the respondent’s decision not to adduce medical evidence. It is clear from the matters in dispute in the Reply, and from the way in which the case was argued, that the real issue was whether the level of noise to which the worker was exposed in the course of his employment with the respondent was sufficient to give rise to his hearing impairment. There was no obligation on the respondent to obtain medical evidence. If the worker was successful on the liability issues, the quantum of his hearing impairment would be referred for assessment by an Approved Medical Specialist appointed by the Commission. There is no evidence that the respondent arranged for Mr Millan to be medically examined or that it held any medical evidence regarding the cause of his hearing impairment that was not disclosed to the appellant or to the Commission.
The appellant’s further supplementary submissions argue an additional ground for drawing an adverse Jones v Dunkel inference, that is, whether or not the appellant attended a medical examination on behalf of the respondent, it being aware of the relevant noise levels, could have given that information to an expert medical witness for comment without the need for examination. That submission demonstrates a fundamental misunderstanding of the rule. Broadly speaking, the rule in Jones v Dunkel refers to an unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence, or produce particular material to an expert witness which may (not must), in appropriate circumstances, lead to an inference that the uncalled evidence or the missing material would not have assisted the party’s case (Cross on Evidence, 8^th ed, at 1215). None of those circumstances are evident in the present matter. There was no medical evidence withheld or witnesses not called and there is no basis for an adverse inference to be drawn. Simply because the respondent chose to run its case in a particular way, that is, by relying on expert evidence as to noise exposure rather than subjective evidence by a lay witness supported by a medical practitioner to establish noise levels, does not give rise to an adverse Jones v Dunkel inference.
The Arbitrator’s reference at [67] of the Reasons to the WorkCover Guidelines on Independent Medical Examinations and Reports is a reference to the Guidelines gazetted on 23 March 2012 and issued pursuant to s 119(4) and s 376 of the 1998 Act. As the Arbitrator correctly observed, the Guidelines limit the circumstances in which scheme agents may refer a worker to attend an independent medical examination. There was no error by the Arbitrator in making reference to the practice and procedure in the Commission by reference to the Guidelines in support of her conclusion that an adverse Jones v Dunkel inference was not warranted. The submission that the Guidelines are “ultra vires to the legislation” was not argued before the Arbitrator and has not been developed on appeal. I note that the Guidelines are made pursuant to the express power referred to above.
I reject the submission that the Arbitrator’s reference to the Guidelines in rejecting the Jones v Dunkel submission was a denial of procedural fairness. The Arbitrator referred to the Guidelines to demonstrate that there are constraints on scheme agents to require workers to submit to independent medical examinations. However, the respondent does not assert that it was constrained in obtaining an independent medical examination by reason of the Guidelines; it simply chose to defend the application on a different basis. If I am wrong on this issue, it would not make any difference to the outcome of the appeal because the Arbitrator’s principal reason for rejecting the Jones v Dunkel inference was because, if liability was established, the quantum of the impairment would be determined by referral to one of the appointed Approved Medical Specialists.
The appellant has failed to identify how he was denied procedural fairness in making submissions concerning how the noise survey was carried out. The appellant was on notice that the respondent would be relying on the noise survey report. The appellant made submissions in relation to the weight that should be attributed to the report. Those submissions included, among other things, that the report was not prepared for the purpose of these proceedings, that it did not apply specifically to the noise exposure of the worker, that it did not refer to the period of time during which the assessment was undertaken, and that it did not indicate authorship of the document. The Arbitrator expressly had regard to those submissions.
Contrary to the appellant’s submission, my decision in the matter of Saunders is not authority for the proposition, as the appellant asserts, that the “report”, which I infer is a reference to Dr Benke’s report, must actually establish a causal connection. Saunders was a case involving the interpretation of s 9A of the 1987 Act. It was an unusual case, in that the worker provided no oral or written evidence as to the circumstances of her alleged injury. The issue on appeal was whether the provisions of s 9A could be satisfied from inferences drawn from the medical evidence and claim forms submitted by the applicant. The case turned on its own facts, and is not authority for the proposition advanced.

CONCLUSION

The appellant has failed to establish any error of fact, law or discretion in the Arbitrator’s findings. In order to succeed in a claim for compensation under s 17 of the 1987 Act, the worker is required to establish that the employment relied upon as giving rise to the hearing impairment is (subject to the deeming provisions) employment to the nature of which the injury was due. The expert evidence submitted by the respondent was sufficient to demonstrate that, even at its peak operating period, the noise levels measured in all of the manufacturing lines were less than the current regulatory noise limits. The Arbitrator’s acceptance of that evidence in preference to the worker’s lay evidence and that of Dr Stylis, an ear, nose and throat specialist, was open to the Arbitrator, and does not demonstrate error.

DECISION

The Arbitrator’s determination of 27 March 2012 is confirmed.

COSTS

No order as to costs.

Judge Keating

President
29 June 2012

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE