Rico Enterprises Pty Ltd T/as Solo Resource Recovery v Weir
[2006] NSWWCCPD 253
•3 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rico Enterprises Pty Ltd t/as Solo Resource Recovery v Weir [2006] NSWWCCPD 253
APPELLANT: Rico Enterprises Pty Ltd t/as Solo Resource Recovery
RESPONDENT: Tony Keith Weir
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: 5468-06
DATE OF ARBITRATOR’S DECISION: 12 July 2006
DATE OF APPEAL DECISION: 3 October 2006
SUBJECT MATTER OF DECISION: Industrial deafness – ‘noisy employment’
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: MRM Lawyers
`Respondent: Mulcahy Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 12 July 2006 is confirmed.
The appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 1 August 2006 Rico Enterprises Pty Ltd t/as Solo Resource Recovery (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’).
The Respondent to the appeal is Tony Keith Weir (‘the respondent’).
The respondent’s claim is one pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) for lump sum compensation in respect of industrial deafness allegedly resulting from noise exposure in his employment with the appellant. He was employed by the appellant from 16 February 1998, full-time, as a driver and operator of garbage trucks. He has continued in that employment. His ‘Industrial Deafness-Notice of Injury Form’, making the claim, is dated 30 August 2005. His entitlement is governed by section 17 of the 1987 Act, which provides:
“17. (1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect:
(a)for the purposes of this Act, the injury shall be deemed to have happened:
(i)where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b)the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words “as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury” were omitted therefrom,
(c)compensation is payable by:
(i)where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii)where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(d)an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,
(e) in paragraph (d), the relevant period means:
(i)where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing)—in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,
(ii)where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury—in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and
(iii)where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury—in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,
(f)where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c) (i) or (ii), the Commission may direct the Authority to pay to that employer out of the Uninsured Liability and Indemnity Scheme such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Authority is to pay out that amount accordingly,
(g)where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.
(2) Without limiting the generality of subsection (1), the condition known as “boilermaker’s deafness” and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.
(3) Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”
The respondent was medically assessed at the request of his own solicitors, by Dr Slack, an ear nose and throat surgeon, on 22 September 2005. He assessed 7.4% binaural hearing loss, equivalent to whole body impairment of 4%. He was assessed by Dr Nial, a consultant occupational physician and audiological physician, at the appellant’s request, on 24 February 2006. He assessed 2.9% binaural hearing loss, which he described as equating to 0% whole person impairment. The respondent had recovered a small sum of compensation ($188.25) for 0.22% binaural hearing loss, from an earlier employer, BOC Gases Australia Limited, in 1997.
Ultimately, the quantum of the respondent’s loss requires the issue of a medical assessment certificate by an approved medical specialist. However, there was a threshold issue between the parties, in that the appellant disputed the respondent’s employment with it was “employment to the nature of which the injury was due”. This issue fell to be determined by the Commission as a threshold issue. The matter proceeded to arbitration hearing on 7 July 2006. Both parties were legally represented. The respondent gave evidence and was cross-examined; the legal representatives of both parties addressed the arbitrator. A Certificate of Determination issued on 12 July 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 12 July 2006 records the Arbitrator’s orders as follows:
“1.The Applicant’s employment with the Respondent was employment to which the nature of the injury was due pursuant to Section 17.
2.The matter is referred to an AMS to determine the extent of the Applicant’s noise induced hearing loss.
3.Costs reserved and to be determined at a teleconference after the receipt and consideration by the Parties of the Certificate from the AMS unless the Parties otherwise agree as to costs.”
The arbitrator’s reasons for his decision are to be found in the transcript of the arbitration hearing, at T19.10 to T20.55. He accepted the respondent as a credible witness, and accepted the respondent’s account of being exposed to noise in the appellant’s workshop on occasions, including assisting in grinding, in addition to the exposure when driving. He accepted certain criticisms made by the respondent’s counsel of noise level tests conducted by a Mr Edgar, in so far as those tests had used a wrong standard, had proceeded on the basis the respondent’s working hours were less than the figure established by acceptable evidence, were conducted in a vehicle different to that driven by the respondent prior to the time of his claim, and took no account of exposure to grinding noises. He thought the progression of the respondent’s noise induced hearing loss since the earlier claim in 1997 consistent with noise exposure with the appellant, to explain the increase which had occurred. He referred to State Rail Authority of NSW v Carroll [2006] NSWWCCPD 16 (‘Carroll’) (on which the parties had addressed), and concluded there was sufficient objective material to satisfy him the respondent’s employment with the appellant was ‘noisy’.
ISSUES IN DISPUTE
The matters raised by the appellant in this appeal are:
(i)Whether the evidence adduced on the part of the respondent was sufficient to discharge the respondent’s onus of establishing the appellant was a noisy employer, that is, that the exposure was such that it was employment to the nature of which the injury was due, within the meaning of section 17 of the 1987 Act. Reference is made to Carroll, and to an alleged lack of expert, collaborative and corroborative evidence in the respondent’s case.
(ii)The arbitrator’s reasons for his decision are inadequate.
(iii)The appellant was denied procedural fairness in that the respondent was granted leave to rely on a statement dated 27 June 2006 which was served late, and the appellant was unable, in the available time, to marshall evidence to contradict that statement, in particular regarding the frequency and duration of grinding duties undertaken by the respondent. It is further asserted the arbitrator placed “additional weight” on this statement, contrary to the basis on which its use was permitted, as referred to at T2.42 to T2.52, and T3.18 to T3.29. These points were raised in the appellant’s Supplementary Submissions dated 16 August 2006.
The respondent, in its Notice of Opposition to Appeal, contends:
(i)The appeal does not satisfy the threshold provisions governing Presidential appeals in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998, and accordingly leave to appeal should not be granted.
(ii)The evidence was sufficient to support the finding made by the arbitrator regarding ‘noisy employment’. The respondent takes issue with various specific evidentiary matters raised by the appellant in support of the contention referred to at point (i) in paragraph [7] above.
(iii)The arbitrator found the respondent to be a credible witness, and the evidence of the respondent supported the finding on ‘noisy employment’.
(iv)The evidentiary weight of the noise level tests conducted by Mr Edgar, given the deficiencies in such tests identified by the arbitrator, was such that the ultimate conclusion of Dr Niall, in a supplementary report based upon such tests, was itself deprived of weight.
(v)There was sufficient objective evidence, having regard to the decision in Carroll, to support the arbitrator’s finding
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.”
Neither party seeks to adduce fresh evidence. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by both 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the decision in compliance with section 352(4) of the 1998 Act.
It is submitted by the respondent the appeal does not satisfy the threshold requirements for a grant of leave, pursuant to section 352(2) of the 1998 Act. Section 352(2) provides:
“(2)The Commission is not to grant leave to appeal 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.”
The first submission put by the respondent in support of this proposition, is that the determination made by the arbitrator was not a determination of the respondent’s entitlement to compensation, but rather a determination of the preliminary question of whether the appellant was a “noisy employer”. On this basis it is submitted the monetary threshold in section 352(2)(a) is not met. This submission is contrary to a number of Presidential decisions dealing with the grant of leave, where the decision appealed against did not actually involve the awarding of compensation. It is sufficient, if no amount of compensation has actually been awarded in the decision appealed against, that the decision be one which clearly has the potential to put in issue the amount of compensation claimed: Fletchers International Exports v Regan [2004] NSWWCCPD 7 at [28]. The decision of the arbitrator in the current matter clearly can be characterised in this way; a decision on the ‘noisy employment’ issue contrary to the position of the respondent would defeat the claim. Accordingly I do not accept the first of the submissions made by the respondent in opposition to the grant of leave.
The second submission made by the respondent on this issue is that the amount of compensation claimed, and accordingly the amount at issue on the appeal, is less than the sum of $5,000.00 referred to in section 352(2)(a). In fact the sum claimed in the Application is precisely $5,000.00, representing 4% whole person impairment. However in the course of the proceedings, material came to light (and was utilised in the proceedings) demonstrating the respondent had previously been compensated in 1997 for 0.22% binaural hearing loss, a sum of $188.25, by an earlier employer, BOC Gasses Australia Limited. Accordingly it is submitted the loss for which the respondent could be compensated in the current claim does not exceed 3.9% further whole person impairment, a sum of $4,875.00. There are two difficulties with this submission. The first is that the amount claimed (and the amount of compensation in issue) remains $5,000.00. The second is, that it is not clear, based upon the medical evidence, precisely what impact the nominal prior award would have upon the assessment of Dr Slack on which the respondent’s claim is based. It may be the prior compensation (and level of deafness) was so minimal it would not effect Dr Slack’s assessment. This is simply unknown. A further point is that the quantum of the respondent’s claim will ultimately be determined by a medical assessment certificate, which will bind the parties as regards quantum. The level of whole person impairment (and the effect of the earlier nominal loss upon it) to be compensated has not been determined until the issue of such a certificate. On balance, I accede to the appellant’s submission that the sum in issue is the sum claimed, of $5,000.00, and thus the figure specified in section 352(2)(a) is met. The whole amount claimed is at issue, and thus section 352(2)(b) is satisfied.
In the circumstances, I grant leave to appeal.
DISCUSSION AND FINDINGS
Paragraphs [1] to [16] of the appellant’s submissions effectively amount to submissions on the evidence, rather than seeking to identify error on the part of the arbitrator, which would justify review. They lead however to the submission contained at paragraphs [17] to [20] of the appellant’s submissions. The appellant argues that, having regard to the decision in Carroll, there was insufficient evidence to support the arbitrator’s finding the respondent had discharged his onus of establishing ‘the appellant was a ‘noisy employer’.
The authority relied upon by the appellant of Carroll is a decision of Moore ADP, in which lump sum compensation for industrial deafness was claimed by a worker who had been employed as a clerk by the State Rail Authority of NSW, for forty-five years. The claim was brought approximately twenty-four years after he left the Railways’ employ; at the time of the decision he was eighty-eight years of age. The worker gave oral evidence of hearing loud noises, if he was talking on the telephone when there were bad thunderstorms. His claim was supported by a report from a doctor who recorded a history the worker “worked in an excessively noisy environment”, without going into details of this. Moore ADP reviewed a number of relevant decisions of judges of the Compensation Court of NSW. She concluded the worker’s medical case was founded upon a report which proceeded on the basis the worker was exposed to an excessively noisy environment, and this history was not borne out by the evidence. In those circumstances she held the evidence was insufficient for the worker to discharge his onus.
In the current matter, there was, in my view, ample evidence to support the conclusion reached by the arbitrator on ‘noisy employment’. The respondent’s statement of 30 January 2006 described his duties as involving the driving and maintaining of garbage trucks, which have a packer/compactor situated behind the driver’s cabin. He described the engine as being beneath the driver’s seat, and “the noise of the engine, compactor and traffic noise is quite loud and significant enough that I have to raise my voice to have a conversation.” The statement goes on “at times, I have to use noisy machinery/equipment such as grinders when I am assisting Maintenance Mechanics in performing their duties on the garbage trucks.” He describes his working hours as eight to twelve hours per day, five days per week, and says he is “exposed to one source of noise or another for essentially the entirety of a shift.”
There is a supplementary statement of the respondent dated 27 June 2006, which describes the appellant’s fleet of trucks being upgraded in the four months prior to December 2005. He says as at 13 December 2005 only the newer trucks were in use. He describes the older trucks as being, in his opinion, 20% to 30% noisier than those they replaced. It also describes exposure to noise in the workshop, when mechanics were working on his vehicle. He describes daily visits to the workshop, with exposure to noise from grinders, hammers, compressors and engines when he did so.
The respondent also gave oral evidence, and was cross-examined. At T6 to T7 the respondent described those aspects of his duties which involved being in the workshop. He described using grinders and sledgehammers himself, depending upon how busy the mechanic was. He described his times in the workshop as relatively infrequent, for maybe an hour at a time. He also described giving a history to Dr Niall (the doctor he saw at the appellant’s request), and said he told Dr Niall about the sources of noise in his work, and described the noise. There was no serious challenge to the respondent’s credit in cross-examination. The arbitrator subsequently described his evidence as “credible and believable” (at T19.10).
Dr Slack, who examined the respondent at the request of his own solicitors, took a history of exposure to noise in various jobs. As regards the appellant, he recorded a history of working ten hours per day with noise from the engine, together with some maintenance including grinding. He described the level of deafness which he assessed as “consistent with a sensorineural hearing loss due to past noise damage to the inner ear”. He was not specific as regards which of the past employments he regarded as causative, and did not specifically express the view employment with the appellant was employment to the nature of which the injury was due.
Dr Niall, qualified on the appellant’s behalf, in his report of 24 February 2006, recorded a history of noise exposure with the appellant which is generally consistent with the evidence of the respondent, in his statements and orally. He concluded the respondent’s hearing loss was “wholly attributable to noise exposure” (at page 3.5). He said the hearing loss was “a gradual process injury, caused by employment in hazardous, noisy conditions” (at page 3.7). He had previously expressed the view, at page 1.5 of the report “On the history obtained it is likely that Solo Waste Recovery was a noisy employer for the purposes of the relevant legislation”.
Dr Niall prepared a supplementary report dated 12 May 2006, after being furnished with a “Noise Level Analysis” report of Mr Edgar, on the letterhead of “Rico Recovery Systems”, dated 13 December 2005. Mr Edgar’s report contained noise level readings on “the International Acco Unit 9058”. Dr Niall expressed “some qualifications upon a conclusion that the noise levels reported by Mr Edgar exculpate Solo Resource Recovery from having caused some of Mr Weir’s hearing loss”. These qualifications are set out on page 4 of the supplementary report, and include doubts regarding whether the measurements were to the appropriate standard, whether the noise exposure was properly represented by the measurements, for example had they included all hazardous sources of noise, whether an adjustment was required to reflect the fact the respondent averaged ten hours per day, and whether maintenance procedures (not the subject of measurement by Mr Edgar) should also be taken into account. He then went on, somewhat hesitantly, to say the reservations “probably do not preclude the views expressed in the summary below”. He then said “In summary, on all the evidence now available, my opinion is that Solo Waste recovery is unlikely to have actually caused Mr Weir to lose any of his hearing. This opinion is qualified by the factors cited above.” It should be noted it is not necessary, under the ‘disease’ provisions, for a worker to actually prove an employment caused the relevant injury, it is sufficient if the tendencies, incidents or characteristics of the employment were of a type which could give rise to the injury in fact suffered: Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 at 64D.
The respondent’s counsel, in submissions, was critical of the methodology employed by Mr Edgar in carrying out the measurements (at T13). He also made the point the truck on which the measurements were carried out was not the same truck the respondent had been driving for most of his employment with the appellant (at T13.55). He pointed to the various qualifications Dr Niall himself had outlined, before expressing his conclusion. In addition, the only noise levels measured were those in a truck, not in the workshop, grinding or the like. The arbitrator had accepted the respondent as a credible witness, that is, he accepted his evidence that, amongst other things, he spent time in the workshop, and did grinding activities from time to time. The arbitrator, at T.19.45, accepted criticisms of the noise level tests, accepted the tests involved the incorrect vehicle, and accepted the respondent was exposed to grinding noise, which was not taken into account in the testing.
There were multiple reasons not to accept the opinion of Dr Niall in his supplementary report, guarded as it was, and based upon noise level tests which may well have had technical deficiencies (identified by Dr Niall), and which did not take account of all of the potentially noisy activities engaged in by the respondent in the course of his duties with the appellant. This left the arbitrator with ample lay evidence from the respondent, and with an original opinion by Dr Niall, based upon a history from the respondent consistent with the ultimate evidence, to support the contention employment with the appellant was “employment to the nature of which the injury was due”. In my view there was ample evidence to reach this conclusion, and I do not accept the submission the evidence was insufficient for the respondent to discharge the onus of proof he carried in this regard.
It is submitted, at point (v) in paragraph [20] of the appellant’s submissions, the arbitrator gave insufficient reasons in his written determination dated 11 July 2006, and the appellant seeks leave to file further submissions following receipt of the transcript. The appellant in fact filed further submissions, dated 16 August 2006, and these do not assert any failure by the arbitrator to provide adequate reasons. The reference to a document dated 11 July 2006 I take to be a reference to the Certificate of Determination, which is dated 12 July 2006. That document, in accordance with usual practice, did not itself contain any reasons, simply the formal orders. However it does provide “A sound recording of the reasons given is available to the parties.” These are the reasons which have been transcribed in the transcript. I conclude, from the failure to refer to a lack of adequate reasons in the supplementary submissions, the appellant no longer relies on ‘inadequate reasons’ as a ground of appeal, now a transcript of the reasons is available. If I am wrong in this conclusion, I should briefly state, the reasons in my view, comply with the common law and statutory duty of an arbitrator in this regard (see Mayne Health Group v Sarah Sandford (2002) NSWWCCPD 6).
On the arbitration hearing the respondent sought to rely, in part, on his additional statement dated 27 June 2006. Exchanges regarding its use are set out at pages 1 to 3 of the transcript. The appellant’s legal representative said that statement had only been received in his offices on 6 July 2006, the day before the arbitration hearing. Accordingly, the appellant objected to use of the statement, saying it had had no opportunity to respond to the statement. The appellant accepted in part that the statement was in response to material put on by the appellant, and also accepted the further statement “does go over much the same sort of material” as the original statement by the respondent. The appellant’s legal representative said:
“It does go over much the same sort of material, but to give this additional weight when the respondent hasn’t been given the opportunity to reply would be unfair.”
The arbitrator admitted the document, but said “I think if the matter is admitted, subject to the caveat placed on it by Mr Mulcahy and subject to further submissions by him at the conclusion of the evidence.”
The appellant on this appeal now complains admission of the statement was unfair, in that it did not have an opportunity to respond to it, given the late service. It is further submitted the arbitrator placed “additional weight” on the statement, contrary to the basis on which its use was permitted.
The additional statement deals with three subjects. The first of these is the very small lump sum previously paid to the respondent on account of deafness, while he worked for a prior employer, BOC Gases Australia Limited. The respondent in the statement said he had no memory of this payment. He gave oral evidence to the same effect, and this was not challenged.
Secondly, the additional statement says the appellant’s fleet of trucks was upgraded in the four months before December 2005, and the older trucks were noisier than the new ones. The respondent also gave oral evidence about this. This aspect of his evidence was not challenged in cross-examination. The respondent’s counsel submitted on the basis the truck the subject of noise tests in December 2005 was “the wrong truck in any case” (T13.55), and later in submissions described this point as “conceded” (T14.40). The point that the truck tested was different to the trucks the respondent had operated over the years, before the latter part of 2005, was not challenged by the appellant in cross-examination or submissions.
The third matter dealt with in the supplementary statement is exposure to noise when assisting the mechanic, and in the workshop, including being present when grinding was carried out (either by himself, or the mechanic). This is a topic dealt with, more briefly, in the respondent’s original statement. It is material the appellant took issue with, in the letter of Ms Richards dated 14 February 2006, at page 2.8, which is annexed to the appellant’s Reply. Clearly the appellant had been on notice, from early in the claim, that exposure to noise such as grinding formed part of the respondent’s case. The respondent gave evidence on the topic without objection (T6.55 to T7.25). He was cross-examined about the maintenance duties, including grinding (T8.30 to T9.40).
The appellant did not, at conclusion of the evidence, make any application for further time, or for leave to call further evidence, which would have been open, having regard to the basis on which use of the additional statement was permitted (T3.30). Ultimately, the various matters covered by the additional statement were either uncontroversial, or the subject of oral evidence which was open to challenge had the appellant had a basis to do so. In all of the circumstances, I do not accept admission of the additional statement, and the use the arbitrator made of it, involved procedural unfairness to the appellant.
DECISION
For the foregoing reasons the appeal is dismissed, and the decision of the arbitrator dated 12 July 2006 is confirmed.
COSTS
The appellant is to pay the costs of the appeal.
Michael Snell
Acting Deputy President
3 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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