Slavka Todoroska and Australian Postal Corporation

[2014] AATA 536

[2014] AATA 536  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1364
Re	Slavka Todoroska
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Senior Member J Toohey
Date	6 August 2014
Place	Sydney

The Tribunal affirms the decision under review.

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Senior Member J Toohey

CATCHWORDS – COMPENSATION – hearing loss – claim lodged seven years after applicant ceased employment – whether Act applies – whether applicant gave notice as soon as practicable after she became aware of injury – whether reasonable cause for the delay – whether respondent prejudiced –whether hearing loss related to employment – decision under review affirmed

Legislation

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1), 14, 53

Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 261(6)

Cases

Unilever Australia Ltd v Petrevska [2013] NSWCA 373
Re Deveson and Comcare [1999] AATA 80
“SAN” and Comcare [2004] AATA 445

Secondary Materials

The Australian Oxford Dictionary

NSW Government Workcover, Managing Noise and Preventing Hearing Loss at Work: Code of Practice

REASONS FOR DECISION

Senior Member J Toohey

6 August 2014

Background

1.Ms Slavka Todoroska was employed by Australia Post from May 1997 until 2005.  On 7 November 2012, she lodged a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the Act) for hearing loss which she said she first noticed at work on 10 August 2005. 

2.On 14 February 2013, the respondent affirmed a determination on 7 December 2012 by which it denied liability to compensate Ms Todoroska. 

3.The respondent says:

(i)the Act does not apply in relation to Ms Todoroska’s injury because she failed to give notice of it as soon as practicable after she became aware of it;

(ii)even if Ms Todoroska gave notice of her injury as soon as practicable after she became aware of it, or is taken to have done so, there is no evidence on which the Tribunal could be satisfied that her hearing loss is causally connected to her employment with Australia Post.

4.Ms Todoroska seeks review of the respondent’s decision.  She gave evidence through an interpreter. 

Ms Todoroska’s evidence

Employment at the St Leonards depot

5.Ms Todoroska was employed as a support mail officer at the respondent’s St Leonards depot from May 1997 until around 2002.  For the first two years, she worked as a cleaner from 2.00pm to 9.30pm five or six days a week, and “before Christmas, seven days”.  She spent most of her time inside cleaning the kitchens, bathrooms and offices.  She used a pull-along vacuum cleaner on the floors, similar to a domestic cleaner but “bigger and noisier”.  She also picked up rubbish and swept outside where large Australia Post trucks and smaller vans were located. 

6.Ms Todoroska contends that the noise from the trucks and forklifts when she was outside led to her hearing loss.  Giving evidence, she said she could not describe verbally the level of noise from the trucks but “everyone could hear and see them coming along the streets, that they are noisy”; the vans were “a bit less noisy”.  There was also a gas-operated fork lift, which was noisy, used to deliver things between the buildings and smaller electric forklifts inside the building, one of which she operated and which she says was also noisy.  Asked how long she spent each day working near the trucks and vans and forklifts, Ms Todoroska said she could not say, it depended on the day.

7.After about two years, Ms Todoroska was transferred to the loading dock area, which was outside, where she worked from 6am to 1.45pm, and occasionally overtime.  She folded mail bags for loading into vans which stood about one metre from where she worked.  She says trucks passed by her “all the time” at a distance of about two metres.  When there was not loading work to be done, she would take empty trays inside to the sorters.  She could not say how much time she spent inside, only that “most of the time” she was on the loading dock.

8.Ms Todoroska gave evidence that, if she needed to speak to someone on the telephone, or speak to someone face-to-face, she had to move about two metres away from the trucks in order to have a normal conversation; otherwise she had to raise her voice.  If there were no trucks or vans, there was no noise, but they were there “non-stop”.  After about 12pm each day, there were fewer trucks but the vans were always there.

Employment at the Alexandria depot

9.In about 2002, Ms Todoroska was transferred to the Alexandria depot.  She worked there until 2005 when she ceased employment at the age of 60.  The work was organised into three or four different areas including working on the loading dock and in the printing room.  Ms Todoroska was rotated between the four areas. 

10.Asked how long she spent on average working on the loading dock, Ms Todoroska said it depended on how often the trucks came; sometimes it was half a day.  She said they came less frequently than at the St Leonards depot but, together with the vans and fork lifts, they created the same level of noise.  Other than the loading dock, the areas she was rotated through at Alexandria were not noisy. 

Ms Todoroska’s hearing loss

11.It was not entirely clear from Ms Todoroska’s evidence when she first noticed a problem with her ears.  In her claim form she stated it was on 10 August 2005.  Giving evidence, she said that, around 2005, she noticed a constant ringing in her ears.  In cross-examination she said she noticed problems “long before 2005” but was afraid to report it to her employer because she was 60 and afraid she would lose her job.  She saw her doctor who told her she had an infection and gave her ear drops, but otherwise said he could not help her. 

12.Ms Todoroska’s evidence about when she first associated her hearing problems with her employment is considered below.

Did Ms Todoroska give notice as soon as practicable after she became aware of the injury?

13.The Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority (here, the respondent) as soon as practicable after the employee becomes aware of it: s 53(1).

14.Section 53(3) provides that, where a notice does not comply with s 53(1) as regards time or otherwise, and the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from death, or absence from Australia, from ignorance or a mistake, or from any other reasonable cause, notice shall be taken to have been given under s 53(1).

15.In this context, awareness of “an injury” means awareness of “an injury” within the meaning of the Act, that is, an injury arising out of or in the course of employment: Unilever Australia Ltd v Petrevska [2013] NSWCA 373; Re Deveson and Comcare [1999] AATA 80.

16.In Petrevska (above), the Court considered a claim under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) for hearing loss made many years after the applicant ceased employment. The applicant contended that time did not start to run until she first became aware that she had received the injury and that was not until she first received medical advice concerning her hearing loss and its cause.

17.Section 261(6) of the NSW Act provided that, where an employee first became aware of an injury after it was received, it was taken to have been received when the worker first became so aware. The Court in Petrevska said that awareness “involves not only awareness of the injury as such but also of its connection to the worker’s employment”: at [17]. Further, “more than a mere belief or a suspicion is necessary for there to be the relevant awareness”. While the cause may be obvious where it occurs suddenly after a severe impact, “the cause of a worker’s gradual hearing loss will ordinarily be a fact of which the worker is not ‘aware’ until he or she receives [expert] medical advice”: at [25].

Ms Todoroska’s evidence

18.Asked when she associated her hearing loss with her employment with Australia Post, Ms Todoroska’s evidence was vague.  She agreed that she was aware of a problem with her ears at the time she left Australia Post in 2005.  She agreed that she talked with a fellow worker at Alexandria about “loud noises” but said she could not remember connecting the ringing in her ears with her employment. 

19.Ms Todoroska was asked:

And you, in 2005, made that connection between what you were experiencing with your ears and your perception about the noise levels in your employment, didn’t you?

20.She replied:

I connected this with noise level at the workplace.  I went to the doctor.  He ask me to have my head investigated, which I did and his reply was, “I can’t help you”.

…

Initially, I thought I might have something else in my head that was causing [the ringing], but whilst it was investigated then I realised that the symptoms, the ringing, are because of the employment.

21.Ms Todoroska said that, initially, her doctor did not say anything about damage to her ears but “later on”, “it could be a year, or less than a year after ceasing work” he said she had damage to her ears and “later on” she saw “many doctors”.  It was put to her that, a year or two after leaving Australia Post, having conferred with her doctors and having had her problems diagnosed, she knew, at least in her mind, that she had suffered an injury to her ears because of her time at Australia Post.  Ms Todoroska replied:

I knew that I had hearing loss because of the noise at work but I didn’t know it’s claimable. 

22.In 2010, Ms Todoroska was given hearing aids at National Hearing Care, an independent hearing services provider.  However, she says, she did not know she could claim compensation until 2012. 

23.For Ms Todoroska it is submitted that she did not become aware of her hearing loss in the sense described in Petrevska until September 2012 after the National Hearing Centre recommended better hearing aids and advised she might have a claim for workers compensation.  As a result, she saw solicitors and was referred to Dr Scoppa whose opinion was that it was related to her employment with Australia Post. 

24.That submission is contrary to Ms Todoroska’s evidence that she knew - or believed -  on the advice of her doctor, within two years of ceasing work that her hearing was damaged because of her employment.  The respondent says, and I agree, that she did not have to have an arguable claim.  She had the advice of her doctor within two years of ceasing her employment to the effect that she had damage to her ears, that it was the result of noise and she believed there was a connection between the circumstances of her employment and her condition: see ReDeveson and Comcare [1999] AATA 80.

25.I am satisfied that Ms Todoroska was aware of her injury for the purpose of s 53(1) within approximately two years of leaving Australia Post in 2005. 

26.“Practicable” means “can be done; possible in practice”: The Australian Oxford Dictionary.  There is nothing to suggest that Ms Todoroska was unable to give notice, or for some other reason it could not be done.  I am not satisfied that she gave the respondent notice of her injury as soon as practicable after she became aware of it. 

Does s 53(3) apply?

27.The respondent says Ms Todoroska is not entitled to the benefit of s 53(3) because it is prejudiced by reason of her failure to give notice of her claim for more than seven years after her injury is said to have occurred, and because there is no reasonable cause for her failure to give notice as soon as practicable after she became aware of it.

Will the respondent be prejudiced if Ms Todoroska is taken to have given notice of her injury?

28.In “SAN” and Comcare [2004] AATA 445, the Tribunal took the relevant period for determining any prejudice suffered by the respondent to be that between when the applicant became aware of his injury and when notice was given. I respectfully agree. For Ms Todoroska it is submitted the relevant period is only two months, being from September 2012 when she first became aware of her injury to November 2012 when she lodged a claim for compensation. It is submitted that the respondent cannot be prejudiced by this period.

29.For the reasons I have given above I do not accept that is the relevant period.  The relevant period for the purpose of considering any prejudice to the respondent commenced no later than the end of 2007.

30.The respondent says it is prejudiced because it is no longer able to investigate Ms Todoroska’s claims properly, in particular, it can no longer effectively investigate the possible effect of factors other than her employment with Australia Post such as her other employment, and it can no longer effectively investigate the actual noise levels where she was working.  I agree.

31.Dr Joseph Scoppa and Dr John Seymour, ear nose and throat specialists, assessed Ms Todoroska and prepared reports for these proceedings.  They gave oral evidence concurrently.  They agree that Ms Todoroska’s previous employment for two years at the Camperdown Children’s Hospital, the furniture manufacturer Stegbar, and two years at the Slazenger factory making tennis balls, were all noisy work environments with the potential to cause industrial deafness.  I accept that it would prove difficult, if not impossible, to obtain reliable information now about noise levels in those workplaces at the times Ms Todoroska was employed.

32.In relation to her employment with the respondent, it is submitted for Ms Todoroska that the respondent is not prejudiced because noise assessments from the time of her employment are available.  That information is said to be referred to in a letter dated 7 December 2012 from the respondent to Ms Todoroska in which the Claims Manager states:

Since 1984, Australia Post has applied a noise emission standard for mail and parcel processing equipment and vehicles of 75db (A) [(A) replicates how the ear hears)] and 75db(C) [(C) picks up high frequency environmental noises].

33.The letter states that, since 1984, Australia Post “is deemed to have provided postal workers with quiet working environments … Data for the period commencing September 1984 indicates that mean ambient levels in mail processing environments did not exceed 78db (A) for an exposure time of eight hours” meaning they were “significantly below” acceptable levels. 

34.As I read that letter, it refers to general noise assessments only, not to data that would be sufficient to assess the levels in Ms Todoroska’s workplaces.  The NSW Workcover Managing Noise and Preventing Hearing Loss at Work: Code of Practice published in December 2011 shows that noise assessments should be done by “a competent person” with “accurately calibrated noise measuring instruments”, relevant training and experience, and in accordance with specified procedures and, in situations where workers are “highly mobile”, personal sound exposure meters may be more appropriate.  Ms Todoroska’s evidence about the various areas she moved between suggests this individual measurement would likely have been appropriate in her case. 

35.Given the difficulties the respondent would face in obtaining information about relevant noise levels at Australia Post as well as her other places of employment, I am not satisfied the respondent would not be prejudiced if the notice is treated as sufficient notice of the claim. 

Was there a reasonable cause for the delay?

36.Ms Todoroska says she was not aware, until she consulted solicitors in July 2012, after being advised by National Hearing Care that she might have a claim for her hearing loss, that she could claim compensation or that time limits applied to such claims.

37.Ms Todoroska made a number of claims for compensation while working for Australia Post.  Around 2003 or 2004 she claimed compensation for an injury to her lower back.  Her doctors’ appointments and treatment were paid for.  She also made a claim for an injury to her left hand and fingers for which liability was accepted.  In cross-examination, Ms Todoroska agreed that she knew it was important to tell her employer quickly about any injuries and that her employer had to pay for any work-related expenses, although her responses to questions from counsel for the respondent suggested she was not entirely clear about this.

38.The respondent says Ms Todoroska only decided to lodge her claim when she was faced with a large bill (around $5000) for a new hearing aid and she was advised she could have a cheaper version or could seek compensation to cover the cost of the more expensive version.  Ms Todoroska denies this.  She says it was not until she received advice from her solicitors that she learned that she could claim compensation for her hearing loss, and nor was she aware until then of any time limit.  In support of this claim, it is submitted that the fact that she did not lodge a claim for many years when she had made previous claims, supports her claim.  Further, it is said, her other claims were for frank injuries at work whereas her hearing loss came on gradually. 

39.I accept that some allowance should be made for Ms Todoroska’s age, lack of familiarity with legal processes and her lack of English.  I accept that, until 2012 when she needed a hearing aid, there was no cost associated with her hearing loss and it is possible she did not realise until then that she could claim compensation.  I accept the possibility that she did not think of her hearing loss in the same way as the frank injuries to her lower back and hand for which she made claims while still employed.  I am prepared to accept that these factors were reasonable cause for her failure to give notice earlier. 

40.As a result, notice of the claim is taken to have been given under s 53, and the Act applies to Ms Todoroska’s claim.  For the reasons that follow, however, I am not satisfied, on the evidence before me, that she has suffered an injury for which the respondent is liable to compensate her.

Is the respondent liable to compensate Ms Todoroska for her hearing loss?

41.By s 14 of the Act, the respondent is liable to compensate Ms Todoroska if she suffers an injury within the meaning of the Act that results in incapacity for work or permanent impairment.  By s 5A(1), injury means:

(a)a disease suffered by an employee; or

(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment.

42.It is not in dispute that hearing loss due to occupational noise is an injury (other than a disease) for the purposes of the Act.

43.There is no dispute that Ms Todoroska has sensory neural hearing loss, a component of which is industrial deafness.  Dr Scoppa and Dr Seymour both performed audiograms. Dr Scoppa assessed her hearing loss at slightly lower frequency levels than Dr Seymour but they agree such variations are not uncommon and, otherwise, their assessments were the same. 

44.As discussed above, Dr Scoppa and Dr Seymour agree that each of the workplaces in which she was employed before Australia Post could have caused or contributed to Ms Todoroska’s hearing loss.  They disagree about the level of noise to which she would have been exposed at Australia Post. 

45.In Dr Scoppa’s opinion, Ms Todoroska’s industrial deafness is attributable to her employment with Australia Post.  He gave evidence that, absent a specific noise survey of a workplace, measuring noise levels and actual noise exposure from all sources, a clinical opinion must be formed “as to whether the noise was such that it had the tendencies to be capable of causing noise-induced hearing loss”.  Statistically, he said, it is known (and there is no dispute) that exposure to noise at 85dB over eight hours, or its equivalent, is likely to cause hearing loss in time.  A measure of that level of noise is whether a person has to raise their voice to communicate with another person at a distance of one metre.  However, Dr Scoppa agreed, that is an indicator which suggests further inquiry is needed, rather than conclusive of noise levels above 85dB.

46.Dr Scoppa said he had “no idea” about the actual noise levels of the trucks and vans in Ms Todoroska’s workplace but it was relevant that there was more than one noise source and, based on her report that she had to raise her voice, he assumed the noise reached the 85dB threshold.

47.In a report in October 2013, Dr Seymour wrote that “Noise Level Surveys clearly show that the noise levels sustained by [Ms Todoroska] were well below the statutory levels of 85dB”.   Giving evidence, he conceded this was an error on his part, and no noise level surveys had been available to him.  However, he said, in his experience the trucks, vans and forklifts as described by Ms Todoroska were unlikely to emit noise at 85dB.  He did not accept that having to raise one’s voice is a reliable indicator of noise levels and said it is an inaccurate and subjective test that says more about the hearing of the person being spoken to than the surrounding noise levels.  In his view, while Ms Todoroska has a degree of industrial deafness, the noise levels at Australia Post were insufficient to produce that hearing loss. 

48.Counsel for Ms Todoroska conceded in closing that the only evidence of noise levels to which Ms Todoroska was exposed at Australia Post is hers.  However he submitted, it is sufficient that a description is available from which an expert witness can say he is satisfied that the noise level caused her injury. 

49.That argument may be sustainable in another case but the only description Ms Todoroska could give was that, at times, she had to move some distance from the trucks in order to have a conversation.  In respect of the St Leonards depot, she could not say how much time she spent outside where the trucks were during the first two years, only that most of her time was inside.  She could not say for how much of the time she spent close to the trucks when she was working on the dock, only that it was “most of the time”.  She agreed that conditions were quite different once she was transferred to Alexandria where she rotated between different areas, some of which were not noisy at all.

50.It is difficult to see, given Ms Todoroska’s evidence, how Dr Scoppa could conclude that her employment at Australia Post caused her industrial deafness.  Even allowing that noise levels were at 85dB and above sometimes, he does not appear to have taken into account the length of time required for noise levels to produce industrial deafness, and nothing in Ms Todoroska’s evidence supports a finding that she was exposed to those levels for eight hours a day over time.  Further, by her evidence, she worked in noisy environments for some years before working at Australia Post which the doctors agree would have been productive of industrial deafness.  (Dr Scoppa said they “absolutely” would have).

Conclusion

51.I am not satisfied that Ms Todoroska’s hearing loss was caused, or contributed to, by her employment with Australia Post.

52.I affirm the decision under review.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.

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Associate

Dated 6 August 2014

Date(s) of hearing

16 July 2014

Solicitors for the Applicant

Counsel for the Applicant

Mr Gaius Whiffen, Turner Freeman Lawyers

Mr Bruce McManamey

Solicitors for the Respondent

Counsel for the Respondent

Ms Leilah Verlinde, Australian Postal Corp

Mr Matthew Gollan