Pavleski v ISS Property Services Pty Ltd
[2023] NSWPIC 263
•6 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Pavleski v ISS Property Services Pty Ltd [2023] NSWPIC 263 |
| APPLICANT: | Slave Pavleski |
| RESPONDENT: | ISS Property Services Pty Ltd |
| Member: | Cameron Burge |
| DATE OF DECISION: | 6 June 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Hearing loss; claim for hearing aids; whether respondent was a noisy employer; Held – the respondent was the last employer by whom the worker was employed in an employment to the nature of which his binaural hearing loss was due; although much of the equipment which the applicant used did not expose him to noise above the relevant threshold, he nevertheless was repeatedly exposed to prolonged noise from a petrol powered leaf blower for up to two hours per day, which the evidence discloses had a noise level greater than 90 decibels; although the respondent’s lay witnesses provided evidence that the applicant did not have to use the leaf blower for as long as he stated he had to, they were not regular attendees in the workplace and were not familiar with his work routines; respondent ordered to pay the costs of and incidental to the applicant’s proposed hearing aids. |
| determinations made: | 1. The applicant suffered an injury in the nature of hearing loss caused by a gradual process as a result of his employment with the respondent which was the last employer by whom the worker was employed in an employment to the nature of which the injury was due, with deemed date of injury of 1 August 2021. 2. As a result of the injury referred to in [1] above, the applicant requires the provision of hearing aids which are reasonably necessary. 3. The respondent is to pay the costs of and incidental to the quotation for hearing aids of Susan Helfand dated 20 July 2022 set out at page 89 of the attachments to the Application to Resolve a Dispute. |
STATEMENT OF REASONS
BACKGROUND
Slave Pavleski (the applicant) was employed as a school cleaner by ISS Property Services (the respondent) for approximately 15 years up to approximately August 2021. While working for the respondent, the applicant carried out his duties at Woolooware Public School and Lilli Pilli Public School as cleaner.
The applicant described his relevant duties which allegedly involved noisy employment as including the use of a petrol operated leaf blower at Lilli Pilli Public School between one to two hours per day, five days per week. He also used a leaf blower at Woolooware Public School.
The applicant states that he used a number of items of noisy equipment during the course of his employment. However, much of the alleged noisiness is disputed by the respondent. The respondent disputes that it was the last noisy employer for whom the applicant worked and raises a dispute pursuant to s 16 of the Worker’s Compensation Act 1987 (the 1987 Act).
The applicant brings these proceedings seeking payment by the respondent for hearing aids said to be reasonably necessary as a result of by normal hearing loss suffered in the course of his employment with the respondent. The respondent disputes liability for the payment for those hearing aids solely on the basis that it was not the last noisy employer of the applicant. There is no issue that the hearing aids are medically necessary.
ISSUES FOR DETERMINATION
The parties agree that the only issue for determination is whether the respondent was the last noisy employer of the applicant.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 3 May 2023. The applicant was represented by Mr Petrie of counsel instructed by Mr Koutzoumas. The respondent was represented by Mr Murray, solicitor.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application);
(b) Reply and attachments, and
(c) applicant’s Application to Admit Late Documents (AALD) and attachments dated 14 March 2023;
Oral evidence
There was no oral evidence called at the hearing.
As noted, the only question for determination is whether the respondent was the last noisy employer for whom the applicant worked. There is no question that the respondent was the last employer of the applicant. There is no suggestion the applicant has worked for a subsequent noisy employer, and as such the issue for determination is whether the applicant’s employment with the respondent falls within the legal requirements of “noisy”.
The applicant set out his alleged relevant noisy duties in his statement attached to the application as follows:
“10. My last employer was ISS Cleaning Services. Over the last 15 years or so working as a cleaner, I have been employed by a number of different entities including Menzies and Broadlex Cleaning Services. Whilst I cannot recall the specific details of each employment period and respective entity, I was carrying out the same work and was exposed to noise.
11. I work primarily at Woolooware Public School but sometimes I would be asked to clean other schools when required. I recall that in about 2020 I was asked to work at both Woolooware Public School and Lilli Pilli Public School. During the course of my cleaning duties, I was required to use a petrol operated blower at Lilli Pilli Public School. I used this blow between one to two hours a day, five days a week. This particular machine was extremely loud and noisy.
12. My job with the respondent as a cleaner required me to clean the school grounds including but not limited to the bathrooms, offices, desks, halls and yards. I used backpack style vacuum cleaners, polishing machines and leaf blowers which were noisy and loud.
13. I recall that some of the equipment I used would change whenever the employer and cleaning contract for the school I was working at would change. However, the blower I was using to clean the school yard at Woolooware Public School has been the same for about the last seven-eight years.
14. There was always loud noise from various machines being used to clean across the school.
15. I worked in close proximity to the machinery used to clean the school and if someone wanted to talk to me, they would either have to come up to me and scream in my ear or we would have to go outside or move away in order to be heard.”
The respondent disputes the noisiness of the workplace and alleges many of the machines which the applicant was required to use satisfied occupational health and safety requirements for lack of noisiness in accordance with pre-purchased checklists which is attached to its reply. I have little issue in accepting that evidence.
However, there is also no issue that the leaf blower used at Woolooware Public School, namely a Makita RBL250 first requested in July of 2011 and assessed as part of a plant and equipment checklist on 14 August 2013 as being used in the grounds and car park cleaning reported a noise rating decibel at 85 to 95. A notation attached to the plant and equipment checklist recorded under the heading “Other Hazards” stated “noise rated at 85-95 dB. Exposure time limited. PPE identified on Safe Work practises and safe operating procedures. Workers must be trained in CLG-SWP-092/31 - operating petrol blower.”
Mr Petrie submitted it was this machine which the applicant indicated he used for up to two hours each day in the course of his duties and submitted that plainly brought the applicant’s employment with the respondent within the purview of noisy employment.
For the respondent, Mr Murray indicated that the report relied on by the applicant, namely Dr Scoppa, independent medical examiner (IME) dated 13 July 2022 fell afoul of the decision in Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181. In that matter, as Mr Murray noted, the applicant failed to satisfy the requirement that the correct history must be put to the expert on whose opinion the applicant relies to establish noisy employment. Mr Murray submitted that in this instance, Dr Scoppa’s history of the various machinery at the respondent’s premises being noisy was plainly inaccurate, given that the other machinery as set out in the plant and equipment material attached to both the application and reply fell within occupational health and safety requirements and indeed fell below the level recorded as being unsatisfactory in Dr Scoppa’s own report, namely 90 dBA.
Additionally, Mr Murray relied upon the statements of each of Ms Marks and Ms Teague. Ms Marks is the senior client service manager for the respondent who oversees area managers. Ms Teague is the health, safety, environment, quality and compliance manager for New South Wales and commenced in that role in 2009.
Each of these witnesses’ attest to the requirements of the applicant’s role and note that he is only required to use the leaf blower for approximately one hour per day. Additionally, Ms Teague referred to a Makita battery operated leaf blower being used at the applicant’s workplaces. However, I do not prefer either Ms Teague’s or Ms Marks’ evidence in this instance. My reason for not doing so is that although each of these witnesses have no doubt done their best in attempting to provide their evidence, neither of them have actually attended at the applicant’s workplace and seen the item which he uses.
The contemporaneous business records reveal the presence of a petrol leaf blower at the workplace, and there is nothing to suggest that item had been replaced before the applicant made his claim. Rather, the only evidence supports the applicant’s contention he continued to use a petrol leaf blower, and that leaf blower exceeded the relevant 90 decibel rating. Moreover, the applicant’s supplementary statement attached to his AALD disputes Ms Marks’ statement he only used the leaf blower for approximately 30 minutes at a time. The applicant is adamant that he continuously used the blower for approximately one hour during each morning shift. Likewise, the applicant disputed Ms Teague’s comments concerning his use of the leaf blower.
I prefer the evidence of the applicant. He was on site. He is aware of the duties he carried out, when and how often. He is adamant that he used a petrol operated blower at Woolooware Public School to clean the entire school yard. He says it would take generally a longer time for the blower to collect earth dirt than leaves and he used it for an extended period of time. He also states that he worked at Lilli Pilli Public School and commenced there in approximately 2020, at which time he was also using a petrol operated blower to again clean the schoolyard which he used for approximately an hour at a time.
I have no reason to doubt the applicant’s evidence in this regard. There is nothing to suggest he is anything other than a witness of truth.
Notwithstanding Dr Scoppa’s report is somewhat inaccurate in that it indicates a number of pieces of machinery suffered from the defect of being above 90 decibels, the applicant’s evidence satisfies me that he was using a petrol leaf blower which the business records reveal had a noise level of above 90 decibels, and that he was doing so for well over an hour each day, five days per week. That evidence is in turn consistent with Dr Scoppa’s overall finding of prolonged and consistent exposure to excessive noise over the course of the applicant’s employment with the respondent.
I am therefore satisfied on the balance probabilities that the evidence in this matter establishes the applicant was subjected to excessive noise in the course of his employment with the respondent, and that the respondent was therefore the last noisy employer. Accordingly, the respondent is liable for the reasonable costs of an incidental to the provision of the applicant’s hearing aids.
SUMMARY
For the above reasons, the commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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