Oztop v South Eastern Sydney Local Health District
[2012] NSWWCCPD 43
•13 August 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Oztop v South Eastern Sydney Local Health District [2012] NSWWCCPD 43 | ||||
| APPELLANT: | Sermin Oztop | ||||
| RESPONDENT: | South Eastern Sydney Local Health District | ||||
| INSURER: | Employers Mutual Ltd | ||||
| FILE NUMBER: | A1-10625/11 | ||||
| ARBITRATOR: | Ms J Snell | ||||
| DATE OF ARBITRATOR’S DECISION: | 10 May 2012 | ||||
| DATE OF APPEAL DECISION: | 13 August 2012 | ||||
| SUBJECT MATTER OF DECISION: | Boilermaker’s deafness; s 17 of the Workers Compensation Act 1987; onus of proof required to establish whether the tendency, incidents or characteristics of employment are such as to give rise to a risk of hearing impairment | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Law Partners | |||
| Respondent: | Hicksons Lawyers | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 10 May 2012 is confirmed. No order as to costs in this appeal. | ||||
BACKGROUND
The appellant, Sermin Oztop, was employed by the respondent, South Eastern Sydney Local Health District. Ms Oztop commenced employment in 1980 as a cleaner at the Prince of Wales Hospital and worked there until 1985. Between 1986 and 1988, Ms Oztop lived in Turkey and was not employed. On her return to Australia, she worked from 1988 until 1994 as a cleaner in a shopping centre with Berkeley Challenge. In 1995, she recommenced employment with the respondent, again at the Prince of Wales Hospital, and worked there until 2001.
Ms Oztop alleges she suffers from industrial deafness relating to her employment with the respondent in the second period of her employment, in particular, from 1995 to 1999 while she was working in the hospital scullery.
On 30 November 2010, through her solicitors, Ms Oztop made a claim on the respondent for lump sum compensation of $10,270 in respect of a claim for 15.8 per cent binaural hearing loss pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) and $10,000 in compensation for pain and suffering pursuant to s 67 of the 1987 Act.
Throughout the latter part of 2011, there was a series of exchanges of correspondence between Employers Mutual Limited, the respondent’s workers compensation insurers, and Ms Oztop’s solicitors. Notwithstanding those exchanges, this is yet another case in which the insurer has failed to comply with its obligations under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to issue a notice to the worker specifying the reasons for the claim being denied.
On 25 November 2011, Ms Oztop lodged an Application to Resolve a Dispute with the Commission. She claimed lump sum compensation in accordance with her solicitor’s letter of demand. She alleged that she had suffered an injury, “industrial deafness”, attributing it to “nature and conditions of employment”. Regrettably, that description of injury continues to be used frequently in applications of this nature although it is a meaningless term. The combined failure of the worker to properly plead her claim and the insurer failing to identify the reasons for the dispute have contributed to the matter being fully contested, notwithstanding the modest amount of compensation claimed.
On 19 December 2011, the respondent filed a Reply to the Application to Resolve a Dispute. It sought leave to dispute the claim on the basis that the worker’s employment with the respondent was not employment to the nature of which her injury was due within the meaning of s 17 of the 1987 Act. It is common ground that that was the only issue before the Arbitrator for determination.
On 5 March 2012, the matter was listed for an arbitration hearing before a Commission Arbitrator. Both parties were legally represented. No oral evidence was called at the hearing. The Arbitrator reserved her decision and a Certificate of Determination accompanied by a Statement of Reasons (Reasons) was issued on 10 May 2012, in which the following orders were made:
“The Commission determines:
1. Award for the respondent.
2. 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 per cent of the amount awarded in the decision appealed against.”
Section 352(4) provides that an appeal can only be made within 28 days after the making of 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
There was considerable debate at the arbitration hearing concerning the admissibility of evidence. The Arbitrator’s rulings and the reasons for them are comprehensively dealt with in her Reasons from [6]–[21]. The Arbitrator’s determination of those issues has not been challenged on appeal.
Sermin Oztop
Ms Oztop provided a signed statement of evidence dated 1 February 2011. She stated she was born in 1949. From 1973 to 1980, she was employed by General Motors Holden, where she undertook spray-painting duties. She was not exposed to noise while performing those duties. However, for a period of time which she did not identify, she worked on the engine line, where she was exposed to loud noise from machinery.
She stated that she was then employed at the Prince of Wales Hospital from 1980 to 1985 as a cleaner. Between 1986 and 1988, she returned to Turkey, where she did not undertake any form of employment.
From 1988 to 1994, Ms Oztop was employed by Berkeley Challenge as a cleaner in a shopping centre. She said she was not exposed to any loud noise during this period of employment.
In 1995, she said she recommenced employment with the Prince of Wales Hospital “as a cafeteria worker”. With respect to her duties at the hospital, she said:
“During my employment with Prince of Wales Hospital, I was exposed to loud noise from dishwashers, polishers and vacuum cleaners. I would be exposed to these noises on an intermittent and sometimes continuous basis for up to eight hours a day.”
Ms Oztop denied any family history of deafness or having been exposed to military service or the noise from firearms. Ms Oztop provided a very brief description of the effect of her hearing impairment on her day-to-day activities.
Ms Oztop provided a further signed statement dated 14 December 2011. That statement, among other things, provided further detail in relation to the worker’s duties. Ms Oztop stated that, in approximately 1995, she recommenced employment with the Prince of Wales Hospital, where she worked predominantly in the scullery room.
As the nature of the worker’s duties and her exposure to noise are critical to the resolution of the issues raised on appeal, the following is an extract of the worker’s evidence from her statement of 14 December 2011:
“8. The scullery was a room across the corridor from the hospital kitchen. It was approximately 12 metres long and 8 metres wide. Inside the scullery was a large industrial dish washing machine which was about 8 metres long. The industrial dish washing machine contained a ‘two lane’ metal conveyor belt allowing cutlery and crockery to travel through it. The internal top of the conveyor belt contained a magnetic force allowing cutlery to grip onto it whilst travelling through the dishwasher. This machine was responsible for the washing, rinsing, steaming and drying of all hospital cutlery and crockery. The dishwasher operated 7 days per week from 9:00am to 11:30am then from 1:30pm to 4:00pm and again from 6:00pm to 9:00pm. When the dishwasher was operating, and I was rostered to work that day, I worked in the scullery. I assume that I predominantly worked in the scullery because I had very limited English skills and I was rarely required to communicate to anyone whilst working in the scullery. I worked for Prince of Wales Hospital on a full time basis and would regularly do overtime. Whilst the dishwasher was not in operation, I would make tea/coffee or toast for example for patients. I would also assemble meal trays.
9. There were about 10 staff members who worked on the dishwasher within the scullery at any one time. Staff would be required to manually place all dirty hospital plates onto the dishwasher to be taken by the conveyor belt onto the machine. Cups/Saucers and cutlery were placed into metal baskets at the start of the conveyor belt. Similarly, after each plate was cleaned, it would have to be manually collected and each basket full of cutlery and other crockery was also manually collected off the dishwasher. The Prince of Wales Hospital scullery dishwasher catered for 5 hospitals in total, being Prince of Wales Hospital, The War Memorial Hospital, Sydney Children’s Hospital, Royal Women’s Hospital and Prince Henry Hospital. The volume of dirty dishes etc that needed be [sic] to be cleaned was enormous as one would need to take into account that the dishwasher was cleaning all dishes for 5 hospitals each with 3 meals a day per patient. Whilst in operation, the dishwasher would emit extremely high levels of noise, firstly as a result of the metal cutlery thrown into metal baskets passing through the metal conveyor belt, the placing and collecting of porcelain plates onto the metal conveyor belt, the sound of high pressure water cleaning the dishes and also a strong drier which dried the dishes. The scullery contained a roller door on one side which opened into the Hospital car park which allowed loud trucks to enter to drop off and collect cutlery/crockery/trays etc to transport to and from the other hospitals.
10. This machine was incredibly loud. In order to speak to another colleague, I would have to stand right up to him or her and speak about four times louder than one would normally speak to even attempt to verbally communicate to my colleagues. When my boss would need to speak to me about working overtime for example, he would generally tap me on the shoulder and I would walk right outside the scullery room and then have a conversation with him as it was just too loud in the scullery to conduct a conversation.
11. Small ear plugs were often available to all staff in the scullery. I would use them if they were available. I also noticed, however, that other colleagues working in the scullery would bring their own larger ear plugs (similar to head phones) to wear on top of the small ear plugs provided by the Hospital as the smaller ear plugs did not sufficiently drown out the noise emitted from the dishwasher.
12. [Not admitted in evidence. Not reproduced.]
13. After about 4 years of working within the scullery, I found that I couldn’t cope with the noise any longer so I transferred to working in the quieter hospital cafeteria.
14. I retired from employment at Prince of Wales Hospital in 2001 and have not worked since. The Prince of Wales Hospital was my last noisy employer.”
Sabri Ozserim
Mr Ozserim stated that he worked with the applicant, Ms Oztop, at the Prince of Wales Hospital in the scullery room. Mr Ozserim commenced working at the Prince of Wales Hospital in 1994 as a food services assistant. He worked 40 hours per week and occasionally was required to do overtime.
Mr Ozserim stated that food services assistants provide food services to all patients, not only in the Prince of Wales Hospital, but also for four other hospitals: The War Memorial Hospital, Sydney Children’s Hospital, Royal Women’s Hospital and Prince Henry Hospital. Mr Ozserim stated that the role of the food services assistant was to clean up all of the dirty crockery and cutlery from the five hospitals when they came back to the scullery. The scullery was a specific area within Prince of Wales Hospital where all dirty crockery and cutlery was washed. In particular, his duties were:
(a) collecting the crockery and cutlery;
(b) cleaning off all excess food;
(c) placing the cutlery in the dishwashers.
Mr Ozserim added that all staff rostered to work in the scullery were assigned a position and staff were required to stay in their assigned positions. He stated that the industrial dishwasher washed, rinsed, steamed and dried all of the crockery and cutlery. The industrial dishwasher was like a conveyor belt that allowed the crockery and cutlery to travel through the dishwasher. The conveyor belt had a magnetic force and this allowed the crockery and cutlery to grab onto it while it travelled through the industrial dishwasher. He said that the industrial dishwasher was extremely loud and the staff who worked in the scullery were exposed to the noise from the industrial dishwasher while it was in operation.
Mr Ozserim said that the dishwasher was in operation every day of the week during the hours of 9.00 to 11.30 am, 1.30 to 4.00 pm, and then from 6.00 to 9.00 pm. He said that the noise from the industrial dishwasher within the scullery was extremely loud. The noise was emitted not only from the dishwasher while it was in operation but also from: the plates, bowls and cups, which were ceramic and not plastic; all of the cutlery, which was metal and not plastic; the high pressure water system which was responsible for cleaning the dishes; and the industrial drier, which was responsible for drying all of the crockery and cutlery. He said that, as a result, there was a lot of noise within the scullery, with all of this happening at the same time.
Mr Ozserim said that, at any one time, there were about 7–10 staff who worked in the scullery. Staff who needed to communicate with each other had to yell loudly in order to be heard over the noise in the scullery. At times, the staff in the scullery were required to physically leave the scullery in order to have a conversation.
Earmuffs were provided to all staff who worked in the scullery. However, Mr Ozserim said that it was too hot to wear the earmuffs provided. The earmuffs were required to be shared among the staff and they were not issued with their own personal pair of earmuffs. He said that the earmuffs did not drown out the noise of the scullery sufficiently.
Mr Ozserim worked in the scullery for 8–12 months. He did not identify precisely when that was.
Hasibe Kose
Ms Kose commenced employment with the Prince of Wales Hospital in 1988, as a cleaner for the first six months, and then as a caterer. She confirmed that she worked with Ms Oztop at the Prince of Wales Hospital in the scullery room. She could not recall the exact dates that they worked in the scullery together.
Ms Kose said that she worked in the scullery from five or six years prior to 2004, when she became a leading hand. She hours were from 9.00 am and 3.00 pm. Her shift covered the breakfast and lunch meals at Prince of Wales and the other hospitals it supported.
Ms Kose said that working in the scullery was very noisy, especially when the industrial dishwasher and drier machine was in operation. The industrial dishwasher and drier was responsible for rinsing, cleaning and drying all of the crockery and cutlery from the various hospitals. The noise from within the scullery came not only from the machinery, but also from the sound of the crockery and cutlery that was being cleaned and dried by the equipment.
The noise from the equipment, crockery and cutlery made it difficult to communicate. Staff had to speak loudly, “that is to scream”, to be heard. To have a conversation with another staff member required her to leave the scullery entirely. Ms Kose confirmed that earplugs and earmuffs were made available to staff, but only in response to complaints as to the noise. Staff members had the option of wearing both the earplugs and earmuffs in order to drown out the noise.
Dr P W Noyce
Ms Oztop was referred to Dr Noyce by her solicitors. He prepared a report dated 8 November 2010.
Dr Noyce obtained the following history:
“Interview
Mrs Oztop was able to converse reasonably well in a quiet environment and stated she had difficulty in noisy environments. She indicated her employment history as follows:
* 1995 to 2001 employed in the cafeteria at Prince of Wales Hospital
* 1980 to 1985 employed as a cleaner at Prince of Wales Hospital
She stated this was her first industrial deafness claim. She indicated she needs to have the television louder than normal at home. She stated she has had no noisy hobbies.
Noise Exposure
Mrs Oztop indicated that while employed with Prince of Wales she was exposed to the noise of dishwashers, polishers and vacuum cleaners on an intermittent and at times continuous basis for up to eight hours a day. The Prince of Wales Hospital would be considered Mrs Oztop’s last noisy employer.
Medical History
Mrs Oztop stated she has had no previous ear discharge or exposure to otoxic drugs, there have been no episodes of vertigo and there has been no family history of deafness. She has had no past exposure to gunfire or head injuries. She stated she suffers from moderate tinnitus on both left and right sides.”
Dr Noyce then recorded the details of his medical examination and audiological results. He concluded that Ms Oztop suffered from 16.5 per cent loss of hearing in the right ear, 15.6 per cent loss of hearing in the left ear, and a binaural loss of 15.8 per cent. He stated that her loss of hearing was consistent with a noise-induced pattern which he attributed to her employment at the hospital.
Other evidence
On 29 November 2011, Ms Oztop submitted a worker’s injury claim form. She claimed loss of hearing in both ears. In response to the question concerning how she was injured, she stated, “I was exposed to a loud and noisy environment with noise arising from dishwashers, polishers and vacuum cleaners”.
In response to the question concerning the work she was doing when injured, she indicated, “cafeteria work”. She identified the cafeteria as the worksite she was working in when injured.
In the claim form, Ms Oztop denied any previous injury or condition with respect to her claim. She identified her usual occupation as “cafeteria worker”.
At the arbitration hearing, the respondent relied on a statement from one of Ms Oztop’s co-workers, Vera Resanovic. The effect of Ms Resanovic’s evidence was to cast doubt on Ms Oztop’s claim that she worked in the scullery at the relevant time. That issue was resolved in favour of Ms Oztop and has not been challenged on appeal. For that reason, I have not taken Ms Resanovic’s evidence into account.
ARBITRATOR’S REASONS
The worker was unsuccessful before the Arbitrator because the Arbitrator concluded that applicant had not discharged the onus of proof to establish that, in the relevant period, that is, from 1995 until 1999, the worker’s employment had the tendency, incidents or characteristics to give rise to a real risk of industrial deafness (Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (Dawson)).
The Arbitrator accepted the nature and extent of the noise from the operation of the industrial dishwasher and the passage of crockery and cutlery as noted in the evidence of Mr Ozserim and Ms Kose. She accepted that the machinery operated between 9.00 am and 11.30 am, 1.30 pm to 4.00 pm, and from 6.00 pm to 9.00 pm. When the dishwasher was not operating, Ms Oztop was making tea, coffee and toast for patients, and assembling meal trays.
Ms Kose’s shift in the scullery was from 9.00 am to 3.00 pm, so she would have been exposed to the dishwasher noise between 9.00 am and 11.30 am, and from 1.30 pm to 3.00 pm, a total of four hours. Mr Ozserim’s hours were not given. The appellant did not state her usual hours, although logically they must have been at times that coincided with those of Ms Kose. While she says that she did regular overtime, no details were given, and no tax returns were provided for the relevant period to help gauge the extent of her earnings and therefore the hours worked.
In her first statement, the worker attributed her hearing loss to loud noise from dishwashers, polishers and vacuum cleaners. She said that she was exposed to those noises on an intermittent basis and, sometimes, on a continuous basis for up to eight hours a day. The second statement made no reference to polishers or vacuum cleaners and she did not explain the earlier reference to them in her statement or the claim form. The Arbitrator was unable to determine from her first statement which of the two periods of her employment she was in fact referring to.
Ms Oztop restricted her claim to exposure to between 1995 and 1999, and the work in the scullery. The evidence from Ms Kose and Mr Ozserim did not refer to noise exposure from polishers or vacuum cleaners. The Arbitrator found that she was not satisfied that Ms Oztop was exposed in the relevant period to noise from polishers or vacuum cleaners.
On the evidence before her, the Arbitrator was unable to conclude with any degree of satisfaction that Ms Oztop was exposed to the noise from the dishwasher, crockery and cutlery, or the drier for eight hours continuously per day, or to what extent she was exposed to the noise during intermittent periods throughout the day.
Ms Oztop’s reference to making tea, coffee and toast for patients led to an inference that that work would not have been undertaken in the scullery room. It was likely that work was done in the kitchen, which the worker said was across the corridor from the scullery. There was no evidence before the Arbitrator as to the level of noise exposure in the kitchen.
The Arbitrator was unable to gain any assistance from the opinion of Dr Noyce. The Arbitrator noted that he seemed to base his opinion on both of the applicant’s periods of employment with the respondent, from 1980 to 1985 and from 1995 to 2001. In the earlier period, she worked as a cleaner at the hospital. Furthermore, Dr Noyce based his opinion on the worker’s history that she was exposed to noise from “dishwashers, polishers and vacuum cleaners”. This left the Arbitrator in some doubt as to Dr Noyce’s opinion had he not taken into account exposure to the noise from polishers and vacuum cleaners and been limited to the noise from working in the scullery as alleged . Dr Noyce made no reference to Ms Oztop’s second statement or the statements from Ms Kose or Mr Ozserim. The Arbitrator concluded that Dr Noyce’s opinion was not based upon the evidence before her.
The Arbitrator rejected a submission by counsel for the appellant that the noise exposure as described by the witnesses was higher than that considered by Dr Noyce, which should be sufficient to satisfy the onus of proof. The Arbitrator rejected that submission on the basis that it does not necessarily follow that Dr Noyce would have found the noise described by the witnesses to be noisier than his understanding of the history upon which his opinion was actually based. The Arbitrator concluded that Dr Noyce’s opinion was based upon an incorrect and incomplete history.
GROUNDS OF APPEAL
The appellant submits that the Arbitrator erred:
(a) in finding that Dr Noyce’s opinion was based on an incorrect and incomplete history;
(b) in the exercise of her discretion by not relying on Dr Noyce’s opinion, and by failing to have regard to the whole of the evidence.
SUBMISSIONS AND FINDINGS
Dr Noyce’s evidence
The appellant submits that the worker’s evidence concerning the work in the scullery, which was corroborated by Ms Kose and Mr Ozserim, provided a fair climate for Dr Noyce’s opinion, notwithstanding “differences in detail or even certain errors” (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [58]).
The appellant submitted that the facts recorded by Dr Noyce, being “exposure to the noise of dishwashers … on an intermittent and at times continuous basis for up to eight hours a day”, essentially accorded with the accepted evidence.
The appellant submits that the Arbitrator erred in finding that it was based on an incorrect and incomplete history. It is submitted that the opinion is not incorrect, as the evidence demonstrated that the worker was exposed to the noise of the dishwasher for very extensive periods.
Further, it submitted that the only possible inaccuracy involves the use of the word “continuous”. It is submitted that the fact that the dishwasher did not operate for eight hours straight without being shut down “does not matter”.
The passage cited from Paric is a reference to the NSW Court of Appeal decision where Samuels AJ (Hutley and Priestley JJA agreeing) said at 509:
“It is a question of whether the hypothetical material put to the expert witness represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided …”
In Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844, the High Court unanimously dismissed an appeal from the decision of the NSW Court of Appeal, stating at 846:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed, vol II, 680, p 800; 2 Wigmore, Evidence 680 (Chadbourn rev 1979), p 942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”
The arbitrator identified a number of reasons why the history obtained by Dr Noyce did not provide a fair climate for the acceptance of his opinion:
(a) Dr Noyce relied on a history that the worker was employed in the cafeteria as a cleaner. The report made no reference to employment in the scullery, which was the employment the appellant ultimately relied upon as establishing the tendency, incidents or characteristics necessary to give rise to a risk of hearing impairment.
(b) The history taken by Dr Noyce does not accurately reflect the period of employment ultimately relied upon by the appellant. The worker’s claim was confined to work in the scullery between 1995 and 1999. Dr Noyce relied on a much longer period of employment, that is, the two periods between 1980 and 1985, and the period from 1995 to 2001 (Reasons at [48]).
(c) Dr Noyce relied upon a history of exposure to noise from three sources, that is, dishwashers, polishers and vacuum cleaners. There is no evidence at all of the worker’s exposure to polishers or vacuum cleaners. The Arbitrator’s finding (at Reasons [49]) that Dr Noyce does not express an opinion related only to the noise in the scullery, on which the appellant relies, to the exclusion of all other possible causes of her hearing impairment, is clearly correct. The history relied upon by Dr Noyce did not accord with Ms Oztop’s evidence as to the cause of her hearing loss.
The appellant conceded in her submissions that Dr Noyce’s reliance on a history of “continuous” exposure to noise was inaccurate. Moreover, the appellant’s submission at [51] and the use of the ellipsis demonstrates the weakness in its submission. The quotation omitted the reference to “polishers and vacuum cleaners” in Dr Noyce’s report. Dr Noyce based his opinion, in part, on the worker’s exposure to three sources of noise, namely, the noise from dishwashers, polishers and vacuum cleaners. The absence of any evidence of exposure during the period claimed to the noise of polishers and vacuum cleaners was found by the Arbitrator to be significant. Her approach is in accordance with authority and does not demonstrate error. Although the worker proved that she was exposed to the noise from the dishwasher, which does appear to be significant, her evidence does not accord with the history relied upon by the doctor for the reasons given by the Arbitrator referred to at [56] of this decision.
For the reasons given by the Arbitrator, it was open to her to reject Dr Noyce’s opinion on the basis that the history he relied upon did not provide a fair climate for the acceptance of his opinion.
It follows that I do not accept that the approach taken by the Arbitrator to the assessment of Dr Noyce’s evidence demonstrates any error in her approach or conclusion. Therefore, this ground of appeal fails.
The alleged discretionary errors
The appellant’s submissions with respect to the alleged discretionary errors fall into the following categories:
(a) The failure to place any weight on the opinion of Dr Noyce;
(b) The failure to have regard to the evidence of Dr Noyce when there was no competing expert evidence;
(c) The failure to place weight on the evidence that hearing protection was provided to workers in the scullery as evidence that noise exposure in the scullery gave rise to a real risk of industrial deafness;
(d) Placing excessive emphasis on the question of the duration of the noise exposure;
(e) Failing to draw a parallel with the facts in Dawson to support the appellant’s contention that the evidence as to the volume and duration of noise to which the worker was exposed was sufficient to satisfy the onus of proof that her employment with the respondent gave rise to a risk of industrial deafness.
The appellant’s submission with respect to Dr Noyce’s evidence is repetitive of the issues raised in the first ground of appeal, which I have already dismissed.
The appellant submits that it was relevant, in terms of assessing the probative weight of Dr Noyce’s evidence, that there was no contradictory expert opinion. That submission is misguided and I reject it. The applicant bears the onus of proof. It is the applicant who must establish, on the balance of probabilities, that her employment with the respondent carried the risk of her suffering from industrial deafness (Galdemar v Asta Enterprises Pty Ltd [1998] NSWCC 47; 17 NSWCCR 155 (Galdemar) at [26]). The applicant was unsuccessful before the Arbitrator because she failed to discharge that onus.
The appellant’s submission that the Arbitrator failed to have regard to the evidence with respect to the use of hearing protection is incorrect. The Arbitrator referred to the evidence with respect to the use of earmuffs and earplugs at [42]–[43] of the Reasons. She accepted the unchallenged evidence that earmuffs were provided, but often were not worn because they were too hot. She also accepted that earplugs were made available to staff. She accepted that the applicant wore small earplugs if they were available.
The appellant’s submissions fail to recognise that it was not enough that she established that working in the scullery was noisy, even to the point of being required to wear hearing protection. In order for her to succeed, it was essential that she present detailed evidence (in the absence of expert evidence from an acoustics engineer) of the nature (volume) and the extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the “tendency, incidents or characteristics” of that employment are such as to give rise to a real risk of boilermaker’s deafness (Dawson at [44]).
The appellant alleges that the Arbitrator placed an excessive emphasis on the evidence as to the duration of the worker’s exposure to noise in the scullery. I reject that submission. The Arbitrator was required to determine the extent of the worker’s exposure to noise and then to determine if the expert evidence, based on correct history, supported a finding that that level of exposure gave rise to a risk of the worker suffering a hearing loss. It is not merely the level of noise to which the worker is exposed that is relevant, but also the length of that exposure. Those issues must be the subject of relevant assessment by specialist evidence (Galdemar at 160; see also Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181 at [31]).
The fundamental difficulty which the appellant is unable to overcome is that Dr Noyce did have an incomplete and inaccurate history upon which he based his opinion. In terms of duration of exposure, he relied on the history given to him by Ms Oztop that her exposure was on an intermittent and, at times, continuous basis for up to eight hours a day. The Arbitrator correctly concluded that that did not accord with the evidence.
The dishwasher only operated at intervals throughout the day, not continuously. The machinery only operated for a maximum of eight hours during a time span between 9.00 am and 9.00 pm. Apart from the fact that the worker said that she worked regular overtime, she provided no details as to her hours. She provided no evidence as to the number of hours she spent working in the scullery on a daily basis. It is clear from her evidence that she did not work continuously in the scullery because she said that, when the dishwasher was not operating, she was making meals for patients and assembling meal trays. She could not have been exposed to noise in the scullery for up to eight hours a day unless she worked from 9.00 am to 9.00 pm and there was no evidence to support that conclusion.
The appellant has sought to overcome the difficulties identified in this appeal by drawing a direct parallel with the facts in Dawson to submit that, as the facts in that case were found to be sufficient to overcome the evidentiary burden, so too should the facts in this matter satisfy the onus. I also reject that submission. It is trite to say that the Arbitrator was bound to, and did, decide the case based on the evidence before her. In any event, in Dawson, unlike this matter, the expert witness was provided with copies of the worker’s statements, the content of which was not contested. This provided a solid basis for the expert’s opinion.
CONCLUSION
The evidence before the Arbitrator as to the nature and extent of the worker’s exposure to noise failed to accord with the expert evidence upon which she relied. The worker failed to satisfy the onus of proof that her employment had the tendency, incidents or characteristics to give rise to a risk of hearing loss. For those reasons, the appeal must fail.
DECISION
The Arbitrator’s determination of 10 May 2012 is confirmed.
COSTS
No order as to costs in this appeal.
Judge Keating
President
13 August 2012
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
5
0