State Rail Authority of NSW v Carroll
[2006] NSWWCCPD 16
•8 February 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Rail Authority of NSW v Carroll [2006] NSWWCCPD 16
APPELLANT: State Rail Authority of NSW
RESPONDENT: John Clement Carroll
INSURER:State Rail Authority of NSW
FILE NUMBER: WCC4667-05
DATE OF ARBITRATOR’S DECISION: 12 July 2005
DATE OF APPEAL DECISION: 8 February 2006
SUBJECT MATTER OF DECISION: ‘Noisy employment’; adequacy of evidence; section 261 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore
Respondent: Whitelaw McDonald
ORDERS MADE ON APPEAL: 1 The decision of the Arbitrator is
Revoked and the following decision is substituted:
(1) Award in favour of State Rail Authority of NSW
(2) No order as to costs
2. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
John Clement Carroll (‘the Respondent’) was employed by the State Rail Authority of NSW (‘the Appellant’) between approximately 1935 and 1980 as a staff clerk. His duties principally involved telephone work arranging the supply and distribution of livestock wagons. He is presently 88 years of age.
By letter dated 30 April 2004, the Respondent’s solicitors gave notice to the Appellant of a claim for compensation for industrial deafness.
The Appellant arranged for the Respondent to be medically examined by an Ear, Nose and Throat specialist on 29 June 2004. Subsequent to that examination, the Appellant wrote to the Respondent’s solicitors advising that liability was declined on the basis that the Respondent’s hearing loss “… is not related to work related noise exposure.”
On 24 March 2005, the Respondent lodged an ‘Application to Resolve a Dispute’ in the Commission seeking lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of 20.4% binaural hearing loss, and section 67 entitlements. He also claimed medical expenses in respect of digital binaural hearing aids.
On 19 April 2005, the Appellant’s solicitors filed a ‘Reply’. In essence, the Appellant maintained that the Respondent did not suffer any hearing loss due to the condition known as “boilermaker’s deafness” and that the circumstances of the Respondent’s employment as a clerk performing telephone work was not employment to the nature of which the disease was due.
The matter was listed for arbitration hearing on 27 June 2005. The Respondent gave oral evidence. On 12 July 2005 the Arbitrator issued a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’. The Arbitrator found in favour of the Respondent. He determined that the Commission had jurisdiction to determine the claim because the requirements of section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) were met, and that the Respondent’s employment with the Appellant was noisy employment for the purposes of sections 15, 16 and 17 of the 1987 Act. He ordered the Appellant to pay the Respondent’s section 60 expenses and referred his claim pursuant to section 66 of the 1987 Act to an Approved Medical Specialist.
On 10 August 2005, the Appellant filed an ‘Application to Appeal Against Decision of Arbitrator’. Briefly, the Appellant disputed the Arbitrator’s interpretation of section 261 of the 1998 Act and his finding that the Respondent had been employed in employment to the nature of which the injury was due.
On 5 September 2005, the Respondent filed a ‘Notice of Opposition to Appeal’ in essence, asserting that the Arbitrator had not erred in law and that his determination was open on the evidence.
ON THE PAPERS REVIEW
The Appellant’s submissions are not clear on this point. Whilst suggesting that the appeal “… should be decided after hearing oral submissions from the parties …” the Appellant then states “… we probably just want this on the papers.”
The Respondent submits that the appeal “… is suitable for determination on the written application and this Notice of Opposition”.
Both parties have filed lengthy submissions on appeal together with an extensive list of authorities upon which they rely. Having carefully read that material, the Arbitrator’s Reasons, the transcript and all the evidence before him, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
The amount at issue on the appeal satisfies the criteria set out in section 352(2) of the 1998 Act. The appeal was filed within the time limit prescribed by section 352(4), and leave to appeal is granted.
THE GROUNDS OF APPEAL
The Appellant cites six grounds of appeal as follows:
“1.That the Arbitrator erred in law in determining that section 261 of the 1998 Act did not bar the Applicant’s claim.
2.That the Arbitrator erred in law in determining the deemed date of injury was the date of claim.
3.That the Arbitrator erred in law in determining that the worker had suffered a serious and permanent disablement within the meaning of section 261(4) of the 1998 Act.
4.That the Arbitrator erred in law in finding that the worker had discharged the onus of establishing that he had been employed in employment the nature to which the disease was due.
5.The Arbitrator failed to provide authority for or details of his reasoning.
6.The Arbitrator made a determination that was inconsistent with the evidence before the Commission.”
The Deemed Date of Injury Error
The Arbitrator determined that the deemed date of injury was the date upon which the claim was made, ie, 30 April 2004. The Arbitrator stated (paragraph 18) “the date of injury is either: when the Applicant had incapacity for work, or when he made the claim.”
This is incorrect. Section 17(1)(a) of the 1987 Act fixes the date of injury as the last date on which the worker was in an employment to the nature of which the injury was due.
Both parties agree that the Arbitrator has erred in this respect. The Respondent submits that “the Respondent agrees with the Appellant that the correct deemed date of injury is 21 September 1980”.
This in itself is not necessarily a fatal flaw in the Arbitrator’s determination. As the Respondent points out in its submissions, the Arbitrator appears to have accepted that the Respondent did not make his claim within the time prescribed by section 261 of the 1998 Act since he then went on to discuss the ‘exceptions’ referred to in that section. In these circumstances, the Respondent submits, “… the issues to be determined in this matter are the same irrespective of the date of injury.”
The Section 261 of the 1998 Act Error
The Arbitrator agreed that section 261 of the 1998 Act applied “.. in this instance because the Applicant made his claim on the Respondent on 30 April 2004. Section 261 requires that the worker’s claim be made within the time limits applicable.”
The evidence was that the Respondent ceased employment with the Appellant in 1980. His claim was made more than 20 years after his ‘injury’.
The Arbitrator correctly stated that section 261(4) of the 1998 Act had to be satisfied by the Respondent in order to establish an exception to section 261. The onus was on the Respondent to demonstrate not only that his failure to make a claim within the time prescribed was due to ignorance, mistake, absence from the State or some other reasonable cause but also, that the claim was in respect of any injury resulting in serious and permanent disablement to him.
No real issue seems to be taken by the Appellant as to the ‘ignorance’ etc aspect of the Respondent’s late claim. The Appellant submits that the Arbitrator’s finding that the Respondent’s hearing loss was such as to constitute a serious and permanent disablement within the meaning of section 261(4) was wrong in law, and “… inconsistent with a long line of authority as to the interpretation of the words ‘serious and permanent disablement’”.
The Appellant cites the decision of Gregson v L & M R Dimasi Pty Limited NSW CCR47 (Gregson). In that case, in determining whether the worker suffered a serious and permanent disablement, His Honour Judge Burke as he then was said at paragraph 78:
“Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative, then he would satisfy that requirement”.
The Appellant submits that the Arbitrator failed to consider these questions and further, that there was no evidence upon which the Arbitrator could make a finding that the Respondent had an incapacity for work.
In considering this issue, the Arbitrator said this (paragraph 21):
“The levels of impairment assessed by both specialists are relatively high, although Dr Bryan does not attribute the loss to employment. The claim seems to me however to be for an injury resulting in serious and permanent disablement at that level of impairment. The Respondent submitted that hearing loss is not disabling as similar percentage loss to an arm or leg, and that I should not consider the Applicant to have suffered serious disablement. I do not accept that because the disablement is not to the mechanical movements of the body and limbs, it is not serious. It is a high level of hearing loss.”
The Respondent in its submissions says that:
“There is no question that the Respondent has a ‘disablement’ and the Appellant does not appear to challenge this aspect of section 261(4). Equally, there is no question that disablement is ‘permanent’ and this appears not to be challenged by the Appellant”.
The Respondent takes issue with the Appellant’s emphasis on the ‘incapacity for work’ point. The Respondent also cites Gregson and refers to paragraph 76 where Burke J quotes Mahoney JA in BH Pty Co Limited v Kuhna (1992) 8NSWCCR 401 thus:
“No doubt, the word ‘disablement’ primarily refers to disablement in respect of capacity to perform work. But provided the disablement or interference with capacity is ‘serious’, the provision may be satisfied notwithstanding that other work may be undertaken …”
It is the Respondent’s submission that the Respondent has lost one fifth of his hearing, and that this is a serious disablement:
“That evidence was not specifically adduced to demonstrate an interference with the Respondent’s capacity does not preclude the Arbitrator from applying commonsense and his own knowledge to find that the loss of one fifth of one’s hearing would be serious, particularly in a person who had worked as a clerk and was required to communicate telephonically”.
The Arbitrator’s determination that the Respondent’s hearing loss constituted a serious and permanent disablement seems to be based solely on the percentage loss assessed by the doctors.
The Respondent in his statement said “I notice that to be able to communicate effectively I have to be spoken to quite loudly and I have to be face to face with the person who I am communicating with.”
Dr Peter Bryan, Ear, Nose & Throat Specialist, who saw the Respondent at the request of the Appellant on 29 June 2004, recorded that the Respondent noticed:
“… gradual deterioration in his hearing over many years. Associated with this hearing loss was some tinnitus, but this was only intermittent … the tinnitus was not particularly annoying.”
As to the Respondent’s history, he noted “he suffered some level of noise exposure but this was only by doing telephone work. Occasionally, he would get loud noises down the telephone …” Dr Bryan was of the view that, in regard to hearing loss that could be reasonably attributed to noisy employment “… I would say that he has not really ever had significant loud noise exposure through his work. Clerical work has never been associated with significant hearing loss.”
More significantly, Dr Bryan noted that “there was also a marked asymmetry between the two ears which is also not typical of noise damage”.
The Respondent relied upon a report by Dr Peter Hopkins, a general practitioner, dated 19 January 2004. He recorded that the Respondent “… worked in an excessively noisy environment for the State Rail Authority from 1935 until his retirement in 1980.” Dr Hopkins arranged for an audiogram and concluded that the binaural loss of 20.4% was “considerable”.
There was very little evidence in all this material that dealt with the question of ‘interference with capacity’. A determination of what constitutes a ‘serious and permanent disablement’ must involve questions of fact and degree calling for the exercise of commonsense and judgment. Questions as to the impact on the Respondent’s capacity for work, whilst relevant as Burke J said in Gregson’s case to such a determination, do not have such relevance in the present case since the Respondent is 88 years old and long retired. Nevertheless, there has been no real consideration by the Arbitrator as to the impact on the Respondent of this ‘injury’ such as would demonstrate that he properly exercised commonsense and sound judgment in considering the questions of ‘seriousness’ and ‘interference with capacity’.
His finding does not in my view demonstrate an appropriate analysis of the relevant factors referred to in the authorities quoted above, and is not sufficient in the context of his duty to provide adequate reasons for his determination.
Whilst it is true that such a determination is a question of fact, in the present case, in my opinion it was unsupported by adequate evidence and reasons, and constitutes an error of law. This is particularly so in light of expert evidence that suggested that the hearing loss was not noise related.
The ‘Noisy Employment’ Error
The Appellant submits that the Respondent did not discharge the onus of establishing ‘noisy employment’ on the evidence before the Arbitrator.
The Respondent gave oral evidence before the Arbitrator as to the nature and extent of ‘noise’ to which he was exposed. In essence, his evidence was that on occasions, particularly during big thunderstorms, very loud noises would occur on the telephone such that it “numbed” his ear for a while. These occurred “… about three or four times a year … over a period of 11 years, that would amount to somewhere between 30 and 40 times that that happened, and that, I believe, would be the reason why my hearing was affected.” Small storms he described as “nothing to worry about” (page 3 transcript).
The only other evidence was the report of Dr Hopkins referred to earlier, and a letter from Affordable Hearing Aids Pty Limited dated 28 August 2003 stating that “Mr Carroll suffers from noise induced hearing loss.”
At the hearing, the Appellant took issue with the qualifications of Dr Hopkins by reference to section 376 of the 1998 Act. The Appellant submitted that this section required claims to be based on assessments by specialists trained and approved by WorkCover in the evaluation of impairment. The Arbitrator concluded that WorkCover ‘guidelines’ were simply that: - a ‘guide’ only, and not mandatory. This does not form a ground of appeal.
The more significant criticism from the Appellant’s view however, was in relation to Dr Hopkins’ history that the Respondent “… worked in an excessively noisy environment…”. No further details were provided by Dr Hopkins. The lay evidence did not support this proposition.
As the Arbitrator correctly stated at paragraph 29 of his ‘Statement of Reasons’, “section 15(1)(b) places an onus on the applicant to show he was employed in employment to the nature of which the injury was due.” The Arbitrator then goes on to describe the Respondent’s duties. He stated (paragraph 33):
“The work … between 1948 to 1959 was clerical in general terms, but was in practice a telephone job, which subjected him for long periods to levels of noise of variable intensity. The occasions on which the lightning strikes caused complete loss of hearing for a period were the extreme, and these occurred a few times a year. There were 30 – 40 lesser instances per year. There was shouting over the line. Taking all this into account, it seems to be that such exposure is likely to have caused deafness in the applicant’s left ear, and in the absence of any other apparent cause. It is true … that clerical work is not usually noisy employment, but when the actual work activity of the applicant is examined, there were clearly periods of loud noise and some instances at an extreme level. Because of the applicant’s evidence, I prefer Dr Hopkins’ view as to the nature of the deafness to that of Dr Bryan … in this instance it is not the general activity of work in which the Respondent is engaged that is important, but the actual duties carried out by the Applicant. The test used in other circumstances of a certain decibel level for a certain period is not applicable in this case. I find that the Applicant has discharged the onus of showing noisy employment.”
The Appellant in its submissions has referred to a number of well known authorities, particularly Pearsall v State Transit Authority of NSW, an unreported decision of Judge Bishop in the former Compensation Court dated 20 November 1998 (‘Pearsall’) and Blaney Shire Council v Lobley (1995) 12NSWCCR at 52 (‘Lobley’). In Pearsall, Judge Bishop provided an extensive analysis of a number of authorities on the question of ‘noisy employment’. His Honour concluded (at page 28) that “it is not correct as a matter of law that the mere existence of noise is sufficient to find liability. It must be noise of a type and level such as to constitute a potential hazard to hearing”. He noted that technical and non-technical evidence in the case had not been referred for expert audiological evaluation, and that a “general statement” in a doctor’s report “… is not an adequate substitute for this.”
The Respondent cites the decision of Ilievski v Sutherland Shire Council, an unreported decision of Judge Burke in the Compensation Court of NSW on 6 March 2001 where His Honour said at paragraph 3:
“The question that remains open is, was the employment with the Respondent of such a nature as to pose a real risk of hearing loss? That in my view is the test … The applicant does not have to establish that the respondent induced any deafness. All he has to establish is the employment was of such a nature as to pose a real risk of such a loss”.
His Honour then went on to say (paragraph 4):
“In my view, a worker is not obliged to establish his case by scientific evidence as to noise levels … a subjective account of noise as such does not suffice if there is particular evidence as to the noise levels in the particular employment and that they are insufficient to pose a risk to hearing.”
It is the Respondent’s submission that “there was no evidence of a scientific nature adduced by the Appellant that would disentitle the Arbitrator from relying on the Respondent’s subjective account.”
Whilst it is true that the worker does not have to provide technical evidence in every case, nothing in the Respondent’s evidence before the Arbitrator established that he was exposed to a sufficient degree of noise capable of causing injury. As the Appellant points out in its submissions “the Arbitrator agreed with the Respondent submission that the worker’s exposure to noise as a clerk did not exceed 85decibels over 8 hours in a 24 hour period. This is the accepted Australian Standard AS 1269 at which noise levels can cause injury.”
Judge Bishop in Pearsall made reference to Judge Geraghaty’s discussion of the Australian Standard AS -1269-1989 in Wright & Ors v State Transit Authority of NSW (unreported – 7 February 1996) as follows:
“The Australian Standard provides a guideline, or a norm for industry based not just on the intensity of sound experienced by a worker, but on intensity or pressure over an 8 hour period, for a working life, or at least for an extended working period. The standard therefore is, at least in part, a combination of intensity or pressure, and duration of sound”.
The Australian Standard AS 1269 also refers to peak exposure at 140 decibels or more as sufficient to cause injury even over a short period.
As I have said, no technical evidence was produced by the Respondent to establish exposure to noise at the 140-decibel level. His medical evidence was silent on the point. His oral evidence was simply that he was exposed to “loud noises”. As Judge Bishop said in Pearsall at page 27 “personal recollections of noise levels some 20 years ago, are not on their own of
great assistance.”
The Appellant also submits that the Arbitrator did not find that the Respondent had been exposed to 140 decibels or more. The Arbitrator said (paragraph 32)
“The Respondent submits that the accepted standard from the case law for exposure to industrial noise before it is of the nature to cause industrial deafness is a level of noise above 85 decibels for a period of 8 hours in 24 hours. The Applicant clearly did not experience that level of noise. The Applicant submitted that it has been recognised in the case law that industrial deafness can be caused by isolated very loud noises as well as by means of constant higher levels of above 85 decibels over 8 hours”
No authority was cited for this latter proposition by either the Respondent or the Arbitrator. There was simply no evidence of the level of “loud noises” experienced by the Respondent in the course of his employment.
The Appellant submits that “even if the evidence of the Applicant as to the peak exposure to noise is accepted, his medical evidence does not establish that the level of noise he was exposed to was such as to constitute a potential hazard to hearing.” The Arbitrator it is submitted erred:
“… in finding a correlation between left sided deafness and a link to the use of the telephone in the course of the worker’s employment. There was no medical evidence to link left sided hearing loss to the use of the telephone. Dr Bryan for the Respondent specifically concluded that ‘the marked asymmetry in the loss of hearing in each ear was not typical of noise damage’. The Applicant’s medical evidence simply does not deal with the link between left sided hearing loss and noise of any kind.”
That is true. The medical evidence of the Respondent was completely silent on this issue.
The Appellant’s final submission on this point is that:
“There was no medical evidence for the Arbitrator to find that the worker’s exposure to one off ‘very loud noises’ was employment of a nature capable of causing injury. The Applicant’s sole medical evidence is a report of Dr Hopkins dated 9 January 2004. Dr Hopkins states that the worker worked in an excessively noisy environment. This was not established by the evidence and not found by the Arbitrator who found that the worker was not exposed to a noise level in excess of 85 decibels over an eight-hour period. Dr Hopkins establishes no link between peak levels of noise exposure and the applicant’s binaural loss of hearing”.
I agree with the Respondent’s submissions on this issue. Whilst there was certainly some evidence by the Respondent as to his exposure to noise in the work place, it was insufficient in my view to discharge the onus he bore particularly in light of the authorities referred to above.
The Absence of Reasons, Authorities and Evidence Error
These last two grounds of appeal have to some extent been dealt with in the body of this decision. No specific submissions have been made by the Appellant on these points, but it is clear from my discussion of the Arbitrator’s findings and reasoning in the previous paragraphs, that the Arbitrator’s ultimate determination was inconsistent with the weight of evidence before him.
His reasons in relation to the section 261 of the 1998 Act issue were as I have said, inadequate.
It is clear law that a failure to provide adequate reasons for a decision constitutes an error of law (see Soulemezis v Dudley (Holdings) Pty Limited (1987) 10NSWLR 247). However, the Commission is not a court and its objectives are to provide a fair and cost effective process for resolution of disputes between parties. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. As Deputy President Fleming said in Mayne Health Group v Sandford (2002) NSWWCC PD6, “the content of Statements of Reasons for decision reflect this process and should not on review be ‘construed minutely and finely’ with an eye keenly attuned to the perception of error”. Further, “to succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant Employer to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application”.
Nevertheless, reasons must be capable of unveiling clearly to the parties the grounds upon which a determination was made. As Deane J as he then was said in Australian Broadcasting Tribunal v Bond (1990) 170CLR321:
“If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably… when the process of decision making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Beach of a duty to act judicially constitutes an error of law which will vitiate the decision.”
CONCLUSION
In my opinion, the Arbitrator’s determination disclosed findings of fact unsupported by probative material. Inadequate reasons have been provided in respect of some parts of his determination. The evidence submitted by the Respondent was insufficient to discharge the onus of establishing that he had been employed in employment the nature to which the injury was due having regard to the authorities referred to above.
DECISION
The decision of the Arbitrator is revoked and the following decision is substituted:
(1) Award in favour of State Rail Authority of NSW
(2) No order as to costs
COSTS
No order as to costs of the appeal.
Deborah Moore
Acting Deputy President
8 February 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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