Moyes v Coles Supermarkets Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Moyes v Coles Supermarkets Australia Pty Ltd [2022] NSWPIC 642
APPLICANT:	Trina Moyes
RESPONDENT:	Coles Supermarkets Australia Pty Limited
Member:	Philip Young
DATE OF DECISION:	18 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for bilateral digital hearing aids; issues concerning giving of notice of injury and notice of claim as well as nature of the exposure and identity of last noisy employer; applicant employed as a team leader and qualified as an occupational therapist; applicant had some duties involving attendance at respondent’s sites to advise on injured worker’s work practices; applicant’s evidence of exposure to noise on those occasions accepted; Held – declaration pursuant to section 60(5) of the Workers Compensation Act 1987 in favour of the applicant that respondent pay the costs of bilateral digital hearing aids.
determinations made:	1. The respondent is liable to pay the costs of and incidental to the provision of bilateral digital hearing aids as recommended by Dr Macarthur and quoted by Bay Audio.

STATEMENT OF REASONS

BACKGROUND

Ms Trina Louise Moyes (the applicant) is a 55-year-old lady who was employed by Coles Supermarkets Australia Pty Limited (the respondent) as an occupational therapist. She brings a claim for the cost of binaural digital hearing aids relying upon reports of Dr Macarthur of 6 April 2021 and 6 June 2022 and a quotation from Bay Audio at a stated cost of $5,910.
The claim is therefore a claim for s 60 expenses only.

ISSUES

There is no issue on the medical evidence that the applicant’s audiograms demonstrate that she requires hearing aids.[1] The respondent has identified the issues[2] as follows:
(a)    whether a valid notice of injury was given to the respondent – s 254 of the Workplace Injury and Workers Compensation Act 1998 (1998 Act);
(b)    whether a valid notice of claim made [sic – was made] on the respondent – s 261 of the 1998 Act;
(c)    whether the applicant’s employment with the respondent was employment to the nature of which the injury was due, so as to determine the last noisy employer, and
(d)    whether the employment with the respondent had the necessary tendencies, incidences and characteristics to [sic] which would have exposed the applicant to industrial deafness and the nature of that exposure.
[1] Respondent’s submissions lodged 24 October 2022 at [6].
[2] Respondent’s submission lodged 24 October 2022 at [8].

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

This matter came for conciliation and arbitration hearing on 20 September 2022. Mr Hallion of counsel instructed by Mr Bechelli, solicitor, appeared for and with the applicant. Ms Compton of counsel instructed by Ms Moylan, solicitor, appeared for the respondent. Mr Krieg was also present for the respondent and Ms Nguyen attended for the insurer.
The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to determine the matter was enlivened.
During the conciliation process it became apparent that there was a dispute concerning the admission of certain late documents. The matter commenced an arbitration hearing and considerable time was taken determining the admissibility of documents the subject of Applications to Admit Late Documents. A sound recording of the submissions and reasons is available but at the moment it is sufficient to summarise that all documents were allowed into evidence subject to the view that many of the submissions should more properly go to the weight to be given to those documents.
The respondent made an application to cross-examine the applicant regarding the nature of the work she was undertaking and time and periods of time she was doing the work. This Commission took the view that there was ample material already in evidence and it was unnecessary to submit the applicant to cross-examination.

DOCUMENTS BEFORE THE COMMISSION

The following documents were in evidence before the Commission:
(a)   Application to Resolve a Dispute lodged 27 June 2022 and attachments (Application);
(b)   Reply lodged 18 July 2022 and attachments (Reply);
(c)   Application to Admit Late Documents lodged by the applicant with attachments filed 5 August 2022 (AALD 1);
(d)   Application to Admit Late Documents lodged by the respondent with attachments filed 13 September 2022 (AALD 2), and
(e)   Application to Admit Late Documents lodged by the respondent with attachments filed 21 September 2022 (AALD 3).

ORAL EVIDENCE

No oral evidence was given.

DISCUSSION AND REASONS

Issues (a) & (b): s 254 and s 261 of the 1998 Act

The respondent asserts[3] that although the applicant claims that she was not aware of her potential claim for industrial deafness until she saw her lawyer, this is untrue because the applicant in her role as “a Workers Compensation Injury Management Consultant”[4] would have been aware of the requirement to report injuries as soon as practicable.
[3] Respondent’s submissions lodged 24 October 2022 at [46].
[4] Respondent’s submissions at [46]
The evidence concerning the applicant’s qualification and knowledge appears in a number of documents in the Application. The applicant’s Notice of Injury form[5] provides an employment history including that for the respondent the applicant has been in the position of “Team Leader (IMA)” from 2004 until September 2012. I take this to mean a team leader of an injury management agency.
[5] Application at page 3.
The applicant provided a statement dated 25 October 2021.[6] That statement records again her employment as a Team Leader with the respondent for a period of eight years. She refers to subsequent employment as a Business Manager, a Rehabilitation Manager and a Manager/Supervisor from January 2018 employed by State Insurance Regulatory Authority (SIRA).
[6] Application at page 21.
The applicant’s next statement of 6 December 2021[7] references the sequence in which she consulted Dr Jogessar, Dr Paul and then her present solicitors and this is elsewhere discussed.
[7] Application at page 22.
The applicant has provided a further supplementary statement dated 21 February 2022.[8] In this statement[9] the applicant records that in 2019 her husband suggested that there may be something wrong with her hearing. The applicant says “I realise now that part of the problem was I suffered tinnitus which I was never really aware of and accepted that my hearing levels were normal”.[10]
[8] Application at page 239.
[9] Application at page 239 at [14].
[10] Application at page 239 at [14].
On 26 July 2019 when attending her doctor for other matters, the applicant mentioned her husband’s concerns about her hearing. The doctor gave her a referral to Australian Hearing but the applicant thought that at her age, in her early fifties, that would not be an issue and the doctor did not tell her that she had hearing loss.[11]
[11] Application at page 239 at [15].
The applicant’s awareness of her ability to function effectively because of her hearing arose according to her with the onset of Covid and the requirement that she work from home effectively with computers and telephones.[12] It was not until she consulted Bay Audio in about 2021 that it was suggested to her that her hearing loss might have a Workers Compensation connection.[13]
[12] Application at page 239 at [16].
[13] Application at page 239 at [13]-[16].
The respondent’s assertion that the applicant was a Workers Compensation Injury Management Consultant appears to be a broad-based implication that she has knowledge of the need to report injuries as soon as practicable and so she should have reported her own injury. The applicant has been described as a Team Leader in injury management and is qualified as an occupational therapist, not as a Workers Compensation Lawyer, or specialist Workers Compensation legal consultant. In the applicant’s case, she may have been aware of the requirement to report injuries but the effect of her evidence is that for some time she thought her hearing loss (which her husband had to alert her to) was simply age-related and on her evidence she was in fact ignorant of any potential connection between any risk imposed by her employment and her gradual onset of hearing loss.
The respondent also says[14] that there are a number of medical notes including consultation notes and a medical certificate dated 26 July 2019 regarding concerns about hearing as well as an entry of 14 January 2021 where Dr Jogessar notes binaural hearing loss and that he would be “looking into a potential Workcover claim to assist with her ongoing care”.
[14] Respondent’s submission lodged 24 October 2022 at [47].
The applicant in her submissions in reply highlights the distinction between the concept of ignorance under s 254 and s 261 (3) and the concept of awareness under s 261 (6) of the 1998 Act. Eastham[15] held that consideration of the matter set out in s 261 (4) of the 1998 Act can occur notwithstanding a worker also pursued arguments under s 261 (6). Further, it is clear that awareness for the purposes of s 261 (6) in the case of industrial deafness “is more difficult than it is with injuries which result from a specific trauma or injurious incident”.[16]
[15] BHP Billiton Ltd v Eastham [2013] NSWWCCPD 34 at [89].
[16] Inghams Enterprises Limited v Jones [2012] NSWWCCPD 17.
The applicant in her statement dated 6 December 2021[17] confirms that she had suspected her hearing “was not the best for approximately six to 12 months prior to consulting…. Dr V Jogessar”. It was Dr Jogessar who told her that she had hearing loss and that it “might have been caused by noise exposure”. The applicant also confirms that she spoke to a Ms Walker of Whitelaw McDonald on 27 April 2021 who confirmed to her that Dr Macarthur “was of the opinion that I was suffering from hearing loss that had been caused by employment with Coles Supermarkets Australia Pty Limited”.[18]
[17] Application at page 21.
[18] Application at page 21 at [8].
The applicant in a supplementary statement dated 21 February 2022 says as follows:
“13. It was only at this stage in early 2021, did it occur to me that my husband’s complaints may have something more to do with me than with him and not just the effect of aging. I then consulted my doctor who referred me for the assessment at Bay Audio…
16. When at Bay Audio, it was suggested to me that my hearing loss was consistent with noise exposure and that I may be eligible to claim the hearing aids through worker compensation, however I would require a solicitor for that advice and an expert ENT comment”.[19]
[19] Application a page 241 at [13]-[16].
It was after the receipt of Dr Macarthur’s report that the applicant’s solicitors made the claim on the applicant’s behalf dated 1 June 2021. I am of the view that the applicant’s awareness in an objective sense but considered in relation to her personal knowledge occurred in April 2021. Up until that point I am satisfied that the applicant on her own evidence was ignorant of her rights to be derived from the legislation and the obligations imposed by it[20] because although on the facts the applicant had been aware of gradual deteriorations in her hearing, she was not aware of the connection between that deterioration and the real risks of her work.
[20] Gregson v L&MR Dimasi Pty Limited [2000] NSWCC 47.
In terms of both s 254 and s 261 (4) of the 1998 Act the applicant was ignorant of her entitlement and therefore there has been no relevant failure to make a claim in time nor give notice of injury.
In the applicant’s submissions that there is a potential added ground to allow the applicant to bring this claim and it relates to the mandatory requirement imposed upon the respondent by s 231 of the 1998 Act. In view of my findings concerning reporting it is unnecessary to deal with that argument advanced by the applicant. However, I would add the observation that there is no evidence that had the applicant been specifically notified of the requirements of the legislation with regard to the giving of notice of injury and the making of claims[21] this would have had any affect on the giving of notice by the applicant because of the matters that I have mentioned of the applicant’s ignorance of any injury in the first place.
[21] Section 231 (1) (a) of the 1998 Act.

Issues (c) and (d): exposure and last noisy employer

The respondent denies that the nature of the applicant’s employment with it “that is being a head office worker has the tendencies, incidents and characteristics of employment the nature of which exposed the applicant to a risk of hearing loss”.[22]
[22] Respondent’s submissions at page 1 at [5].
Relying on Daniel[23] the respondent makes the point that the risk involved in the nature of her employment must be a real risk of hearing loss, not simply a theoretical risk.
[23] Ambulance Service of New South Wales v Daniel [2000] 19 NSWCCR 697.
The applicant in her further statement of 21 February 2022[24] confirms that her main role was to provide practical assistance for injured workers. Fifty percent of her time was spent in an office environment but she was also required to travel to various worksites, for example distribution centres, to provide on-the-job assistance.
[24] Application at page 239.
This history in the applicant’s further statement appears to be more extensive than the history in her earlier statement of 25 October 2021[25] where the applicant refers to working on the back dock of a number of stores and being exposed to the “noise of floor cleaning machines, cardboard packages being split open, announcements on a loudspeaker and the occasional confrontations with fellow workers and customers”.[26] The applicant in this earlier statement estimates that she was exposed to load noise for three to four hours per day.
[25] Application at page 20.
[26] Application at page 20.
As pointed out in the applicant’s submissions in reply, Dr Macarthur had both histories and provided a supplementary report after having seen the further applicant’s statement. Additionally, the respondent’s expert noise assessment report, although perhaps not of significant weight because it is unclear whether the applicant worked at the particular facility referred to, does demonstrate the types of noises the respondent knew can be experienced in loading docks. The applicant’s evidence is of exposure to excessive noise in the respondent’s loading docks and the respondent’s own assessment report adds some corroboration to the applicant’s claims.
The respondent seeks to refer to the evidence of Susie Morando and suggests that there is clear evidence that the workplace “was not a noisy environment”.[27] Additionally, it is clear from the language adopted by Ms Morando that she did not have any direct observation of the applicant in the context of the applicant’s presence at various sites. She refers to “understanding” and various beliefs about where the applicant was working and I accept the applicant’s submission[28] that Ms Morando’s evidence involves speculation and should be given little weight.
[27] See Applicant’s submissions in reply at page 6 at [2.12].
[28] Applicant’s submissions in reply at page 6 at [2.14].
Much of the respondent’s other lay evidence also involves subjective views of noise and indeed it is unclear whether any of the sites were those sites which the applicant was required to attend. Mr Amini refers to a need to project his voice “… because there are people working in the area, there is a PA system and there is Coles radio”.[29]
[29] Statement of Mr Amini dated 30 August 2022 at [17].
The applicant makes the point[30] that the respondent’s suggestion that hearing protection was available in the plant room corroborates the fact that there was a risk of hearing loss when in the plant room. I accept that submission.
[30] Applicant’s submissions in reply at pages 7-8 at [2.19].
The respondent refers to an injury management advisor activity record and list of responsibilities.[31] Relying upon this record, the respondent says that store visits “are only a very small aspect of the role, with administrative tasks relating to the role taking up the majority of the work”.[32]
[31] Reply at pages 32-33.
[32] Respondent’s submissions at [29].
Mr Amini confirms that he had a similar role to that of the applicant, which required him at various sites to enter the plant room. Mr Amini gives evidence that the respondent required persons using the plant room to wear ear plugs. As submitted by the applicant, Mr Amini’s evidence supports the applicant in that one would infer that the need to wear ear plugs was because the plant room was a place where the applicant was at a real risk of hearing damage even if this be for very short periods of time.
In relation to the evidence of Dr Howison relied upon by the respondent, there is no serious debate with Dr Macarthur’s opinion because Dr Howison simply suggests that there may be some factual discrepancy between the evidence of the applicant and Mr Amini.[33] It follows that for the reasons I have identified above, Mr Amini’s account is supportive of the applicant’s account of exposure to excessive noise.
[33] Reply at pages 43-45.
The applicant’s statement of 5 August 2022[34] provides a detailed explanation from the applicant of the various stores she was required to attend and exposure to garbage compactors,[35] the noise of forklift trucks in back docks,[36] exposure to refrigerator noise and trucks,[37] noise from machinery used for removing tires at K-mart Tyer and Auto,[38] and at the Somersby Distribution Centre noise that was “so loud that it was necessary to shout in order to have a conversation with a person standing about one metre away”.[39]
[34] Applicant’s AALD lodged 5 August 2022.
[35] Applicant’s statement at page 3 at [19].
[36] Applicant’s statement at page 3 at [20].
[37] Applicant’s statement at page 2 at [17].
[38] Applicant’s statement at page 2 at [16].
[39] Applicant’s statement at page 2 at [15].
I am satisfied on the evidence that the applicant was exposed to noise in her employment which had the necessary tendencies, incidences and characteristics to present the applicant with a real risk of suffering industrial deafness. I am further satisfied that the respondent was the applicant’s last noisy employer.

FINDINGS AND ORDERS

Pursuant to s 60 (5) of the Workers Compensation Act 1987 the following declaration is made:
The respondent is liable to pay the costs of and incidental to the provision of bilateral digital hearing aids as recommended by Dr Macarthur and quoted by Bay Audio.

[2022] NSWPIC 642

18 November 2022