South Eastern Sydney Local Health District v Oztop
[2012] NSWWCCPD 50
•13 September 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | South Eastern Sydney Local Health District v Oztop [2012] NSWWCCPD 50 | ||||
| APPELLANT: | South Eastern Sydney Local Health District | ||||
| RESPONDENT: | Halil Oztop | ||||
| INSURER: | Employers Mutual Ltd – NSW Treasury Managed Fund No 2 | ||||
| FILE NUMBER: | A1-9746/11 | ||||
| ARBITRATOR: | Mr J Phillips SC | ||||
| DATE OF ARBITRATOR’S DECISION: | 20 June 2012 | ||||
| DATE OF APPEAL DECISION: | 13 September 2012 | ||||
| SUBJECT MATTER OF DECISION: | Boilermaker’s deafness; reasons; assessment of expert evidence: s 17 of the Workers Compensation Act 1987; evidence required to establish whether the tendency, incidents or characteristics of employment are such as to give rise to a risk of boilermaker’s deafness; weight of evidence | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Hicksons Lawyers | |||
| Respondent: | Law Partners | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 20 June 2012 is revoked and the following orders are made in its place: 1. Award for the respondent. 2. No order as to costs of the appeal. | ||||
BACKGROUND
The respondent to the appeal, Mr Halil Oztop, commenced employment with the appellant at the Prince of Wales Hospital in approximately 1995 as a kitchen hand.
Mr Oztop claimed that, in the course of his employment, he was exposed to loud noise emanating from large industrial dishwashing machines and from the noise emanating from the cleaning of metal cooking appliances, porcelain crockery and metal cutlery within the hospital kitchen and scullery.
On 1 December 2010, Mr Oztop’s solicitors made a claim for lump sum compensation in the sum of $5,005 in respect of a 7.7 per cent binaural hearing loss pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim was supported by a report of Dr P W Noyce of 8 November 2010.
The claim was denied by the Treasury Managed Fund (TMF). On 21 April 2011, TMF issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The reason for refusing the compensation was on the basis that the Prince of Wales/Prince Henry Hospital was not “the last noisy employer”. The decision was based on a report of Dr Kenneth Howison, an ear, nose and throat specialist, dated 2 March 2011. Dr Howison stated that the worker’s exposure to noise at the hospital did not exceed the safe level for noise exposure, and therefore the employer could not be considered the last noisy employer.
On 2 November 2011, Mr Oztop lodged an Application to Resolve a Dispute in the Commission. He claimed lump sum compensation in accordance with his solicitor’s letter of demand.
On 23 November 2011, the employer lodged a Reply to the Application to Resolve a Dispute in the Commission. In addition to the matters notified in the s 74 notice, the respondent disputed whether:
(a) The applicant’s evidence as to the alleged noisy nature of the workplace is adequate and complete;
(b) The claim was made with proper justification, as no reasonable attempt had been made by the applicant to address the conclusions set out in the noise assessment surveys of the respondent’s premises to the effect that the applicant’s work environment was not noisy enough to cause industrial deafness, and
(c) The worker’s expert acoustic engineer’s report (the Woolven report) discharged the onus of proving that the worker was exposed to a level of noise, in the course of his employment, sufficient to cause boilermaker’s deafness.
On 8 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 his decision and a Certificate of Determination, accompanied by a Statement of Reasons (Reasons), was issued on 20 June 2012, in which the following orders were made:
“The Commission determines:
1. That the applicant’s employment with the respondent was of the nature to which the applicant’s hearing loss was due.
2. That the matter is remitted to the Registrar for assessment of the applicant’s hearing loss by an Approved Medical Specialist with a deemed date of injury of 1 January 2001 and to assess whether it is reasonably necessary for the applicant, pursuant to section 60(5) of the Workers Compensation Act 1987, to be fitted with hearing aids.
3. The Approved Medical Specialist is to have regard to these reasons and to the exhibits tendered in the matter.
4. The respondent is to pay the applicant’s costs as agreed or assessed. To those costs, to both parties I provide an uplift of 15 per cent on the basis of complexity.
5. The Approved Medical Specialist is to have regard to any previous amount of money that the applicant has received for noise induced hearing loss from a previous employer.”
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% 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 that the appeal is within time. So far as the threshold is concerned, the threshold has been met by the barest of margins ($5).
THE EVIDENCE
Halil Oztop
Mr Oztop provided two signed statements of evidence. The first is dated 1 February 2011 and the second 14 December 2011.
In his first statement, Mr Oztop stated that he is 65 years of age. He commenced employment at the Prince of Wales Hospital in 1995 as a kitchen hand. During his employment at the hospital, he said:
“I was exposed to loud noise from commercial dishwashers, noise from metal dishes and pans and other general noise that is present in a busy hospital kitchen. I would be exposed to this noise on an intermittent and sometimes continuous basis for up to eight hours a day.”
Mr Oztop retired in 2001 and has not worked since. Prior to his employment at the hospital, he worked from 1973 until 1980 at General Motors Holden, where he said that he was exposed to the noise from loud machinery. From 1980 to 1985, he worked for Kellogg’s as a machine operator and was again exposed to loud noise from machinery.
Between 1986 and 1988, Mr Oztop returned to Turkey and did not undertake any form of noisy employment.
Between 1987 and 1995, Mr Oztop worked for Berkeley Challenge as a cleaner in a shopping centre and was not exposed to noise.
The worker denied any family history of deafness and, although he participated in military service in Turkey, he performed office work. He then described the effect that his hearing had on his daily activities, including the difficulty he has hearing conversations, hearing the television or radio, dizziness, intermittent ringing in his ears, and sleep disturbance.
In his second statement dated 14 December 2011, Mr Oztop provided more detail about his work at the hospital. He said that he worked a rotating roster from either 6.00 am to 2.30 pm, 8.00 am to 4.30 pm, or 1.00 pm to 9.00 pm five days a week. He said that he was exposed to the noise that he described in his first statement on a regular basis throughout his employment at the hospital.
Mr Oztop said:
“The noisiest part of my day was when I worked within the hospital scullery.
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 dishwashing machine which was about 8 metres long. The industrial dishwashing machine contained a ‘two-lane’ metal conveyer belt allowing, cutlery and crockery to travel through it. The internal top of the conveyer 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 seven days a week from 9.00 am until 11.30 am, then from 1.00 pm to 1.40 pm, and again from 6.00 pm to 9.00 pm.”
Mr Oztop said that 10 members of the staff worked on the dishwasher within the scullery at any one time. Their duties required them to manually place dirty hospital plates into the dishwasher to be taken by the conveyer belt into the machine. Cups, saucers and cutlery were placed into metal baskets at the start of the conveyer belt. When the crockery and cutlery were clean, they were manually removed from the machine. The crockery and cutlery from five hospitals, including the Prince of Wales Hospital, War Memorial Hospital, Sydney, the Children’s Hospital, the Royal Women’s Hospital and Prince Henry Hospital, were all cleaned using this particular machine.
While the dishwasher was in operation, it emitted extremely high levels of noise, firstly from the metal cutlery being thrown into metal baskets passing through the metal conveyer belt, and placing and collecting porcelain plates onto the metal conveyer belt, the sound of the high pressure water cleaning the dishes, and also a strong dryer sound.
Mr Oztop stated that the machine was incredibly loud and that, in order to speak, he would have to speak at a level four times louder than he normally would to communicate with colleagues. He added that, when his boss needed to speak to him about working overtime, for example, he would tap him on the shoulder and ask him to walk outside of the scullery in order for a conversation to be had.
Small earplugs were often available to the scullery staff. Mr Oztop used them when they were available. He noticed that some other workers brought their own larger protection, like headphones, which they wore over the top of the small plugs provided by the hospital.
Throughout the period of his employment with the Prince of Wales Hospital, Mr Oztop was quite often rostered to work in the scullery room. When he wasn’t working in the scullery, he worked in the hospital kitchen, which was also noisy, but not as noisy as the scullery. The kitchen contained large industrial steam-pressured cookers, which were quite noisy. Also in the kitchen, he was required to wash heavy metal industrial saucepans and trays, and was involved in the preparation of meal trays to go to patients. Disposing of rubbish using a compactor, which was operated by Mr Oztop, was also quite noisy.
Vera Resanovic
Pursuant to an Application to Admit Late Documents dated 28 February 2012, an email communication between Vera Resanovic and Nora Gray dated 1 February 2012 was admitted in evidence. Nora Gray is the workers compensation claims manager for the South Eastern Sydney Local Area Health District. Ms Resanovic’s role at the hospital is not expressly stated.
It would seem from the tenor of the email that its intention is to describe the duties of a kitchen hand at the employer’s premises. Ms Resanovic identified a number of duties, including delivering meals to patients using a trolley to and from the scullery, cleaning duties in the main kitchen, handwashing of baking dishes in the main kitchen, collection of rubbish and delivery to the rubbish area, and working in the scullery on a rotational roster, which was not every day.
Ms Resanovic stated that the scullery area was separate from the kitchen. The trucks would deliver the dirty dishes three times a day. Most of the plates and cups were plastic; only the dinner plates and bread plates were china. The cutlery was stainless steel. She said that earplugs and earmuffs were provided for staff to use as they chose. There were dispensers on the wall containing earplugs.
The roller door next to the scullery was only used for the trucks to deliver the dirty dishes. They did not collect the clean ones, as they were wheeled into the kitchen. The kitchen and scullery were upgraded and all new equipment was purchased in 1991. The cooking was done in convection/steam ovens which were not noisy. There were approximately five ovens. The garbage disposal units were used in the scullery and kitchen area. The only rubbish taken to the rubbish area was cardboard and tins. She stated that Mr Oztop was sent to work at the War Memorial Hospital on restricted duties for a period of six months. She did not identify the period concerned.
Medical evidence
Dr P Noyce
Dr Noyce is an ear, nose and throat specialist who provided a report dated 8 November 2010 to the worker’s solicitors.
Confusingly, Dr Noyce co-authored the report of 8 November 2010 with Mr Woolven, who describes himself as an “industrial/compensation audiologist”. A footnote to the report makes it clear that Mr Oztop was medically examined by Dr Noyce and the only contribution from Mr Woolven was to undertake the audiogram on which Dr Noyce relied.
Mr Oztop told Dr Noyce that he was employed as a kitchen hand at Prince of Wales Hospital between 1995 and 2001. He stated that this was his first industrial deafness claim. Under the heading “Noise Exposure”, Dr Noyce recorded the following history:
“Mr Oztop indicated that while employed with Prince of Wales Hospital he was exposed to the noise of commercial dishwashers, metal dishes and pans on an intermittent and at times continuous basis for up to eight hours a day. The Prince of Wales would be considered Mr Oztop’s last noisy employer.”
Dr Noyce recorded brief details of Mr Oztop’s medical history and his findings on examination. He recorded the audiological results and calculated a binaural hearing impairment of 7.7 per cent corrected for presbycusis. He opined that a hearing aid would be beneficial and necessary for Mr Oztop for both ears. He concluded that Mr Oztop’s hearing loss was consistent with a noise-induced pattern and this would be considered attributable to his employment at the Prince of Wales Hospital.
Dr K Howison
Dr Howison is an ear, nose and throat surgeon. He provided a report dated 28 March 2011 addressed to the Treasury Managed Fund.
Dr Howison commenced by commenting that he had reviewed all the documentation that had been provided to him at the time of the consultation. He did not, however, identify what documentation had been included for his consideration.
Dr Howison recorded the following history:
“Mr Oztop gave a history of having been employed from 1995 to 2001 as a kitchen hand at Prince of Wales Hospital. Mr Oztop explained that he was exposed to the noise of dishwashers and the noise of metal dishes and pans clashing together. He was exposed to this noise for up to eight hours a day. Since 2001, Mr Oztop has not worked.”
Dr Howison recorded the worker’s employment history and noted that he had made a successful claim for noise-induced hearing loss around the time that he was working for General Motors Holden.
Dr Howison recorded details of the medical history and his findings on medical examination. Dr Howison assessed that Mr Oztop suffered a noise-induced hearing impairment of 7.7 per cent binaural.
Dr Howison stated that he had noted the results of the “occupational noise assessment report” carried out at the Prince of Wales Hospital in May 2002. He said, in New South Wales, the regulation governing noise in the workplace is detailed in the Occupational Health and Safety Regulation 2001 (specifically, Ch 4 Pt 4.3 Div 4, Noise Management), which is part of the Occupational Health and Safety Act 2000.
He said that the noise management section of the New South Wales OH&S regulations defined the workplace as unsafe and a risk to health if any person is exposed to noise that:
· exceeded an eight-hour noise level equivalent of 85 dB(A); or
· peaks at more than 140 dB(C).
Dr Howison explained that that meant that the equivalent continuous sound pressure level at the ear should not exceed 85 dB(A) for an eight-hour shift, or a peak noise level at the ear should not exceed 140 dB(C) at any time.
Dr Howison concluded:
“I note from the areas Mr Oztop worked in the Prince of Wales Hospital did not exceed the safe level for noise exposure and therefore the Prince of Wales Hospital could not be considered Mr Oztop’s last noisy employer. From the history, I would consider that Kellogg’s is Mr Oztop’s last noisy employer.”
The expert evidence
The Woolven report
Mr Oztop relied on the report of Mr Ross Woolven, an industrial/compensation audiologist from Industrial Audiology Services. The report is dated 27 October 2011. Mr Woolven’s report stated:
“I have enclosed a noise report on Mr Oztop while working at the Prince of Wales Hospital. Based on our analysis his noise exposure is in excess of the legislated noise requirement of 85 dB(A), being 90 dB(A) for an 8 hour period. The noise report is enclosed.”
The report assessed the exposure activity as “[l]arge commercial dishwasher – banging of metal dishes & pans”. It estimated eight hours of exposure at an exposure level of 88–90 (I presume decibels) and an eight-hour equivalent assessment of 90 (I again assume decibels). The footnotes indicate that the estimated exposure levels are based on actual measurements of “[p]rojects undertaken by IAS & their associates of similar pieces of equipment” and “research assessments”, which the footnotes indicate are research reports of the UNSW Dept Building.
The conclusion was a calculated eight hours of exposure at 90 dB(A). The report concluded with the following comment:
“As indicated above, Mr Oztop has an 8 hour exposure level of 90 dB(A) based on his actual and estimated exposure time and levels to equipment made use of by him and those within his work area. This level is in excess of the legislated requirement of 85 dB(A).”
Occupational noise survey – Morris Nakhla
The appellant relied on an occupational noise survey report dated 9 February 1999 prepared by Morris Nakhla of Australian Water Technologies – Audiology and Noise Unit.
The report is said to present the results of noise assessments of various locations and areas throughout the Prince Henry and Prince of Wales Hospitals premises. The survey was conducted on 4 and 5 February 1999. The intent of the survey was to identify any risk of noise hazards during normal operations and to determine the level of noise exposure that staff are exposed to during normal duties.
The author noted the relevant occupational health and safety regulations as referred to by Dr Noyce. A description of the instruments used in the assessment was provided and it was noted that the equipment had been appropriately calibrated. The author, on page 8 of the report, set out a number of examples of “measured noise levels”. These included a range of exposure to various noise levels in the general community and the average noise measurement of those activities. These were not specific to the Prince of Wales Hospital.
The author set out, on page 10 of the report, the sound pressure emission levels from various sources of noise, which included, for example, various tools, including saws, vacuum cleaners, surgery floor scrubbers, air conditioning units, and the noise associated with the use of hyperbaric equipment. Notably, the table did not refer to the noise from the dishwashing machine the subject of Mr Oztop’s complaints.
The author concluded:
“All noise measurements taken of equipment used in the kitchen and the hyperbaric facility did not exceed this 85 dB(A). This does not represent a significant noise exposure to the operator/s and other staff present in the immediate environment.”
Occupational noise assessment – Gail Boon
The employer also relied on a report styled “Occupational Noise Assessments The Prince of Wales Hospital”. The document is on the letterhead of Sydney Water and is authored by Gail Boon, Manager, Audiology and Noise Control Unit, Sydney Water. The report is dated 3 May 2002.
The report was commissioned by Evan Davis, the manager of occupational health and safety at the Prince of Wales Hospital, to assess noise levels of a number of locations throughout the hospital. Again, the relevant occupational health, noise and safety regulations were referred to, which are not in dispute. The equipment used appears to be the same as that used by Mr Nakhla. The methodology used for the testing carried out is referred to at page 18 of the Reply and appears to be non-controversial.
At page 19 of the Reply, the author sets out a table under the heading “Results”. This table identifies the results of the testing at various locations, which seem to be restricted to the Café Court retail and public area, the kitchen and the hyperbaric unit. In so far as it is relevant, the testing showed the following results:
locations measured
Leq
dB(A)Peak
dB(lin)Sampling
Time MinsSound Pressure @ 1 metre
Kitchen Dishwasher
79.3
83.1
50
70.1
Kitchen Floor Scrubber
80.1
82.7
45
71.6
Kitchen Food Blender
72.1
80.6
50
63.7
Kitchen Food Chopper
67.7
79.3
50
59.4
Kitchen Waste Disposal Unit
77.3
82.6
50
68.3
Kitchen Cooking/Preparation Area
78.4
80.5
50
69.2
The author concluded that all noise measurements taken of equipment used in the kitchen and the hyperbaric facility did not exceed 85 dB(A). This does not represent a significant noise exposure to the operator/s and other staff present in the immediate environment. Noise levels measured in the kitchen and retail sections were below 85 dB(a). The author concluded that the activities surveyed did not present a significant noise exposure.
ARBITRATOR’S REASONS
In so far as there was a factual contest between the worker’s evidence and the information contained in the email from Ms Gray, the Arbitrator resolved that conflict in favour of the worker and accepted his evidence as to the duties required of him in the course of his employment. The Arbitrator accepted that the worker’s hours of work were as he stated, except for the fact that the email from Ms Gray identified that, for an unspecified period of six months, the applicant worked at the War Memorial Hospital.
With respect to the noise surveys relied upon by both parties, the Arbitrator concluded that “both expert reports do not take the matter very far”. The Arbitrator stated that the Woolven report, on which the worker relies, “is notable by its brevity”, except that Mr Woolven had taken readings of a large commercial dishwasher with an estimated exposure of eight hours, concluding an eight-hour equivalent exposure of 90 dB(AH).
The reports relied upon by the employer “could be criticised for not accurately describing the precise area where the applicant worked”. He noted that the 1999 survey is a general one of a number of different areas at the hospital, whereas the May 2002 report described something called the “kitchen dishwasher”. The Arbitrator concluded that he could not be certain whether what was being described was the same dishwasher as that to be found in the scullery. He said, “In any event, the sample taken of that dishwasher was only of 50 minute duration”.
The Arbitrator’s findings with respect to whether the worker’s employment had the tendencies, incidents and characteristics to cause industrial deafness is contentious. He said at [31]–[32]:
“In looking at the tendencies, incidents and characteristics of the employment I am more persuaded by what the applicant has said in relation to the duration and the volume of the dishwasher in the scullery and of the other associated equipment in the kitchen and disposal area where he had to work for his eight hour shifts on a rotating shift roster. This is particularly so by reference to the evidence that he would need to go outside the scullery area to talk to his supervisor and also needed to shout to be heard and stand right up close to a workmate in order to communicate during the shift period.
I therefore find that the applicant’s employment with the respondent was to the nature of which hearing loss was due and accordingly, I find in the applicant’s favour.”
The Arbitrator then referred the matter to the Registrar for referral to an Approved Medical Specialist to assess the worker’s whole person impairment and the necessity for hearing aids.
GROUNDS OF APPEAL
The appellant submits the Arbitrator erred in:
1. failing to correctly apply Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (Dawson);
2. failing to provide adequate reasons to explain his decision with respect to the conclusions he reached regarding the expert evidence relied upon by both parties;
3. failing to give adequate weight to the appellant’s expert evidence as to the degree of noise exposure to which the applicant worker was likely to be exposed in the course of his employment.
SUBMISSIONS AND DISCUSSION
Adequacy of reasons
At [21]–[28] of the Arbitrator’s decision, he referred to the leading authorities, including Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley), Dawson and Callaby v State Transit Authority (NSW) [2000] NSWCC 30; 21 NSWCCR 216 (Callaby), concerning the evidentiary requirements of establishing an entitlement to compensation under s 17 of the 1987 Act.
The Arbitrator correctly identified that it is not necessary for a worker to call an acoustics engineer in every case, but it is always essential that he or she present detailed evidence (if no acoustics expert is to be relied on) 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]).
It is clear from a reading of the Arbitrator’s decision as a whole that he considered the weight to be attached to the acoustics experts’ evidence before applying the principles in Dawson.
It is therefore convenient to consider the grounds of appeal in relation to the Arbitrator’s consideration of the weight that he attached to the acoustics experts’ evidence before turning to the allegations with respect to the failure to correctly apply the principles in Dawson.
The appellant submits that the Arbitrator failed to give adequate reasons for his conclusions with respect to the competing, non-medical expert evidence. It is submitted that the Arbitrator failed to explain whether he preferred the Woolven report of 27 October 2011 “(and/or the Noyce/Woolven report dated 8 November 2010)” over that of the “appellant’s expert evidence”, which I infer is a reference to the noise surveys and assessments by Nakhla and Boon.
In this regard, the appellant’s submissions with respect to Dr Noyce’s report of 8 November 2010 are misconceived. The Arbitrator’s assessment of the acoustics experts’ evidence did not take into account, nor should it have, any reference to Dr Noyce’s medical opinion, although that of course will be highly relevant to the allegations concerning the failure to apply Dawson.
In Council of the City of Liverpool v Turano [2008] NSWCA 270; 164 LGERA 16 (Turano), Beazley JA (Hodgson and McColl JJA agreeing) said at [218]:
“The legal principles that apply to the judicial obligation to give reasons is well known: Soulemezis v Dudley(Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office (1997) 48 NSWLR 430; Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited. The duty extends to engaging with the expert evidence and to explain why expert evidence is accepted or rejected: Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; Moylan v Nutrasweet Company [2000] NSWCA 337; Wiki v Atlantis Relocations(NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127.”
The Arbitrator said at [30]:
“With respect to the noise surveys relied upon by both parties, it must be said that both expert reports do not take the matter very far.”
In so far as his assessment of the report of Mr Woolven is concerned, the Arbitrator “noted its brevity”. He then went on to note that Mr Woolven had taken readings of “a large commercial dishwasher” with an assumed exposure of eight hours per day. That was the extent of the Arbitrator’s analysis of the Woolven report. The Arbitrator did not expressly say that he rejected the report or what weight he gave it. Although it may be inferred he placed no weight on it, the Arbitrator did not state the reasons for reaching that conclusion. He failed to engage with the expert evidence and did not explain whether it was accepted or rejected (Turano).
In so far as the occupational noise survey by Nakhla is concerned, the Arbitrator said at [30]:
“The 1999 survey is a general one of a number of different areas at the hospital.”
No further analysis was made of the report and, again, the Arbitrator failed to give any reasons, or explain whether he accepted or rejected it, or what weight he placed on it, although it is reasonable to infer that he did not accept it.
Referring to the occupational noise assessment by Boon in May 2002, the Arbitrator said at [30]:
“… whereas the one in May 2002 describes something called the ‘kitchen dishwasher’. I am not certain whether that is the same dishwasher to be found in the scullery. In any event, the sample taken of that dishwasher was only of 50 minute duration.”
The Arbitrator made it reasonably clear that he gave the Boon report no weight because the author of the report failed to identify whether the noise measurements taken were those of the large industrial dishwashing machine found in the scullery or something else called the “kitchen dishwasher”. Accepting the worker’s evidence that the kitchen and the scullery were separate and distinct areas of the workplace, this was sufficient reason for rejecting this report as expert evidence to support the proposition that the noise emanating from the large industrial dishwashing machine in the scullery, on which the worker relies, exceeded accepted occupational limits.
Whether the Arbitrator’s observation that the sampling period with respect to the dishwasher was 50 minutes was critical to his rejection of the evidence is not clear, but the use of the words “in any event” appear to me to indicate that the observation was meant as an aside, and that the real reason for rejecting the evidence was that he could not be satisfied that the equipment assessed was the relevant equipment under consideration.
It follows, for the reasons explained above, that, save for the Boon report, this ground of appeal is made out.
Weight of the expert evidence
In the alternative to the appellant’s submissions with respect to the adequacy of the Arbitrator’s reasons, it is submitted that the Arbitrator’s decision is affected by error in that he failed to give adequate weight to the appellant’s expert evidence as to the degree of noise exposure to which the applicant worker was likely exposed in the course of his employment.
The appellant submits that greater weight should have been afforded to the appellant’s evidence in circumstances where that evidence assessed the actual working conditions of the workplace in 1999 and 2002. By contrast, the October 2011 Woolven report was based on unsubstantiated assertions about other testing undertaken by persons unknown.
It is submitted that the appellant’s evidence should have carried greater weight than the Woolven opinion because the 2002 report (the Boon report):
“involved tests of other dishwashers actually located at the Prince of Wales Hospital would have been much more likely to have tested ‘similar pieces of equipment’, if not actually the same types of dishwashers, than the Woolven report.”
The respondent submits that the effect of the Arbitrator’s decision is that he gave no weight to any of the expert evidence. It is submitted that he dismissed the Nakhla report as it did not reveal that any testing had been performed in the kitchen/scullery area. Hence, it is submitted that it is not surprising that the Arbitrator gave it no weight.
The respondent further submits that the Arbitrator concluded that the 1999 Boon report was equally unhelpful and of no assistance. Hence, he came to the conclusion that it be given no weight. On that basis, there is no force in the submission that he erred in the exercise of his discretion in the weight to be attached to the expert evidence.
In order to determine the force of these submissions, it is necessary to look at each of the non-medical experts’ reports in turn.
I begin with a consideration of the Occupational Noise Survey of 9 February 2009 by Nakhla. The stated purpose of the report was to identify any risk of noise hazards during normal operations throughout the hospital. It was not specific to Mr Oztop’s duties, nor specifically directed to the equipment alleged by him to have given rise to his deafness. Importantly, Table 5.1 (page 10 of the Reply) sets out the sound pressure emission levels of various pieces of equipment throughout the hospital. Without being exhaustive, the sources include various saws, workshop equipment, vacuum cleaners and polishers, scrubbers, air conditioning units, the lithotripsy machine and various hyperbaric equipment. It is apparent from the report that the survey did not include an assessment of the scullery or the large industrial dishwasher the subject of Mr Oztop’s complaints. For these reasons, the Arbitrator was correct to conclude that the report is of no probative force.
I now turn to the Occupational Noise Assessment by Gail Boon dated 3 May 2002. The measurements that are referred to in that report were undertaken by Ms Boon (and Mr Nakhla) on 3 May 2002. The stated aim of the survey was to assess the personal noise exposure levels of various tasks and identify noise hazards associated with the areas concerned. There is no dispute that the author of the reports identified the appropriate occupational health and safety regulations relevant to noise exposure. No issue is taken with respect to the instrumentation used, its calibration, or the noise-testing procedures undertaken.
The “results” of the assessment are included in a table at [7.0] of the report (page 19 of the Reply). I have extracted the relevant findings at [53] of this decision. It seems that the testing was exclusively undertaken in the kitchen, the hyperbaric area, the Café Court and retail area. The hyperbaric findings are irrelevant to the issues in this matter. In so far as the measurements in the kitchen are concerned, the authors concluded that the noise emanating from the kitchen did not present a significant noise exposure to the operators and staff. The report is silent as to the noise emanating from the scullery or, in particular, from the commercial dishwashing machine contained therein. It is apparent from the report that that area of the hospital was not the subject of this assessment. For that reason, the authors’ conclusions are irrelevant and are, again, of no probative value.
I next turn to the Industrial Audiology Services report by Ross Woolven of October 2010. There are a number of deficiencies in Mr Woolven’s report. First, it is not asserted that the conclusions are based on an assessment of the noise emanating from the scullery at the Prince of Wales Hospital or, in particular, the large industrial dishwasher at that location. The report is silent as to the methodology adopted by the author to reach his conclusions. It is silent as to when the testing referred to was carried out, the equipment used, or the methodology used. All that can be gleaned from the report is that the author reached a conclusion from “projects undertaken by IAS and their associates”; it is unknown as to what those projects were, where they were undertaken, when they were undertaken, or the results obtained from the so-called “projects”.
It is apparent that the author has attempted to reach a conclusion about Mr Oztop’s exposure to noise at the Prince of Wales Hospital without having visited the hospital or having accessed his particular workplace. For these reasons, the conclusions reached by Mr Woolven are unreliable in the circumstances of this case and, in my view, have no probative value.
It follows that, for the reasons given in this decision, although the Arbitrator’s reasons were inadequate, his ultimate conclusions with respect to the weight to be attached to the non-medical expert evidence do not involve error.
Did the Arbitrator err in the application of Dawson?
The appellant submits that a fair reading of [31] of the Arbitrator’s reasons can give rise to little doubt that the Arbitrator’s conclusion was essentially based on his acceptance of the worker’s evidence.
At [31], the Arbitrator said:
“In looking at the tendencies, incidents and characteristics of the employment I am more persuaded by what the applicant has said in relation to the duration and the volume of the dishwasher in the scullery and of the other associated equipment in the kitchen and disposal area where he had to work for his eight hour shifts on a rotating shift roster. This is particularly so by reference to the evidence that he would need to go outside the scullery area to talk to his supervisor and also needed to shout to be heard and stand right up close to a workmate in order to communicate during the shift period.”
The appellant submits that the worker’s evidence alone is not sufficient to discharge the onus of proof upon the applicant worker in a hearing loss case. The appellant submits that the worker’s subjective evidence must be supported by sufficient expert evidence to allow a proper conclusion that the employment had the necessary “tendency, incidents or characteristics” to give rise to a real risk of industrial deafness. It is submitted that no such expert evidence in support of the worker’s case exists.
The respondent submits that the relevant point to consider is not the extent of the history relied upon by Mr Woolven [sic, Dr Noyce], but whether there was sufficient evidence to conclude that the respondent worker’s employment was to the nature of which the injury is due. The respondent submits that there was sufficient evidence for the Arbitrator to reach his conclusion, and that evidence consisted of the worker’s statements, Dr Noyce’s report of 8 November 2010, Mr Woolven’s report of 27 October 2011, and the fact that hearing protection was supplied to the worker.
The respondent submits that the Arbitrator’s conclusion was open on the evidence and that he has not fallen into any error of law in reaching it.
In Lobley, his Honour Justice Cole said at 64:
“[A]ttention must be directed not to whether the employment then engaged in actually caused the injury but whether the ‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered.”
In Dawson, to which I previously referred, the evidence necessary to prove a hearing loss case in the absence of evidence from an acoustics engineer was discussed. For the reasons that I have already given, although there was evidence from acoustics experts in this case, it is of no probative value.
It has not been argued in this appeal that the approach outlined in Dawson is not appropriate or should not apply in this case. In Dawson, the worker’s solicitors provided a copy of the worker’s statement to the medical experts for their opinion as to whether his employment was employment to the nature of which the disease process of boilermaker’s deafness was due. The worker’s evidence concerning the extent of his exposure to noise was not challenged. Based on the worker’s evidence and the experts’ assessment of it, he was able to discharge the onus of proof he carried. That did not happen in Mr Oztop’s case. Dr Noyce relied on the history he obtained from the worker, which, for reasons I shall come to, was flawed.
I adopt Deputy President Roche’s observations in Dawson, namely that, in order to discharge the onus of proof, the worker is required to provide detailed evidence as to 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.
Although the Arbitrator was conscious of the standard to be applied, his conclusions are based on the lay evidence without reference to the expert opinion of Dr Noyce on whether the employment had the tendency, incidents or characteristics to give rise to a risk of hearing loss. This is at the core of the appellant’s submissions.
The failure to take into account or to give sufficient weight to some relevant matter can amount to an error (Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 at 27).
After noting that the applicant relied on the report of Dr Noyce at [2] of the Reasons, the Arbitrator made no further reference to Dr Noyce’s evidence and clearly did not take Dr Noyce’s evidence into account in terms of satisfying the expert evidence component of the standard of evidence necessary to prove a hearing loss claim in accordance with Dawson. In that respect, I find that the Arbitrator erred.
For the reasons that I have given, the Arbitrator’s error with respect to the reasons is not material to the outcome of the appeal because, for different reasons, I have reached the same conclusion as to the weight to be attached to the non-medical expert evidence.
However, the error with respect to the application of the principles discussed in Dawson is material to the outcome of the appeal. An error must be corrected unless it could not possibly have affected the outcome of the arbitration (Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561).
In terms of the relief sought, the appellant submitted that the Certificate of Determination dated 20 June 2012 should be revoked, and that the Presidential member should issue a fresh Certificate of Determination, entering an award for the respondent (the appellant to the appeal). In response, the respondent submitted that the Arbitrator’s decision should be confirmed.
In Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1, the Court of Appeal held at [28] that the power in s 352(7) to either revoke and substitute a decision or remit the matter to an Arbitrator “is a matter within the reasonable discretion of the Presidential member, having regard to the overriding objectives of the legislation in providing a fair, cost-effective and timely means of resolving workers compensation claims”. The Court of Appeal expressed the view in that matter that, if the appeal is upheld, it is preferable, if possible, that the Presidential member finally determine the matter.
I have regard to the fact that the amount in issue in this appeal is $5,005. The $5,000 threshold provided for in s 352(3) has been met by the barest of margins. In order to avoid the unnecessary costs of a further hearing and, as I believe that I am as well-placed as an Arbitrator to re-determine the matter, that is the course I propose to adopt.
There has been no challenge to the worker’s evidence. However, a careful analysis of the worker’s evidence reveals that he worked one of three shifts. The evidence also reveals that the industrial dishwasher to which he refers only operated at intervals during each shift.
On the 6.00 am to 2.30 pm shift, machinery operated between 9.00 and 11.30 am and from 1.30 to 4.00 pm. However, as Mr Oztop’s shift finished at 2.30 pm, he would only have been exposed to the noise for two-and-a-half hours in the morning and one hour in the middle of the day, a total of three-and-a-half hours.
On the 8.00 am to 4.30 pm shift, from my calculations, the worker would have been exposed to a maximum of five hours of noise from the dishwashing machine.
On the 1.00 pm to 9.00 pm shift, the worker could only have been exposed to a maximum of five-and-a-half hours’ noise exposure, as the machine only operated between 1.30 and 4.00 pm, and 6.00 pm and 9.00 pm during that shift.
The history of exposure given to Dr Noyce, which formed the basis of his conclusion, was that Mr Oztop was exposed to the noise of commercial dishwashers, metal dishes and pans on an intermittent and, at times, continuous basis for up to eight hours a day. That was incorrect. On the worker’s own evidence, he could never have been exposed to the noise from the industrial dishwashing machine for up to eight hours a day. The maximum exposure was five-and-a-half hours and the minimum exposure was three hours per day when he worked in the scullery.
In addition, it seems reasonably clear from Mr Oztop’s own evidence that he did not work in the scullery every day. He said that he was “quite often rostered to work in the scullery room”. When he wasn’t working in the scullery, he worked in the hospital kitchen. He also dispensed meals to patients and attended to the rubbish disposal and other duties. Although the worker gave subjective evidence that some of those activities were noisy, there is no expert evidence that the noise exposure from those activities could give rise to a risk of boilermaker’s deafness.
The actual evidence of Mr Oztop’s exposure (duration) to the noise from the dishwashing machine is at odds with the history relied upon by Dr Noyce. Unlike the facts in Dawson, Dr Noyce did not have access to the worker’s statement setting out the detail of the period or nature of his noise exposure.
It follows that the history provided to Dr Noyce does not provide a sound basis for the acceptance of his conclusions. Therefore the worker’s subjective evidence of his exposure to noise is not supported by expert evidence concerning the nature (volume) and the extent (duration) of the noise to which he was exposed. In these circumstances the worker cannot satisfy the onus of proof and the application must fail.
CONCLUSION
For the reasons given in this decision, the evidence of the acoustics experts for both the applicant and the respondent were of no probative weight, as they failed to assess the noise emanating from the particular equipment the subject of the worker’s complaints.
The expert medical evidence on which the worker relied (from Dr Noyce) was based on an extremely brief and inaccurate history of the worker’s exposure to noise, which was inconsistent in material respects with the worker’s evidence of his exposure to the equipment concerned.
The worker has failed to discharge the onus of proof necessary to establish that his employment at the Prince of Wales Hospital had the “tendency, incidents or characteristics” to give rise to a real risk of boilermaker’s deafness.
ORDERS
The Arbitrator’s determination of 20 June 2012 is revoked and the following orders are made in its place:
1. Award for the respondent.
2. No order as to costs of the appeal.
Judge Keating
President
13 September 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
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