Uniting Care NSW.ACT t/as Lucan Care v Johnson and Macquarie University
[2004] NSWWCCPD 9
•20 February 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Uniting Care NSW.ACT t/as Lucan Care v Johnson and Macquarie University [2004] NSWWCCPD 9
APPELLANT: Uniting Care NSW. ACT t/as Lucan Care
APPELLANT’S INSURER Allianz Australia Workers Compensation (NSW) Ltd
1st RESPONDENT: Robert Johnson
2nd RESPONDENT: Macquarie University
2nd RESPONDENT’S INSURER: GIO General Limited
FILE NUMBER: WCC 6964-2003
DATE OF ARBITRATOR’S DECISION: 10 July 2003
DATE OF APPEAL DECISION: 20 February 2004
SUBJECT MATTER OF DECISION: Hearing Loss, Noisy Employment, Arbitrator’s Decision Against the Weight of Evidence, Last Noisy Employer.
PRESIDENTIAL MEMBER: Deputy President, Dr Gabriel Fleming
HEARING:18 February 2004
REPRESENTATION: Appellant: Holman Webb Lawyers
1st Respondent: Villari & Co Lawyers
2nd Respondent: Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
BACKGROUND
On 5 August 2003 Uniting Care NSW.ACT t/as Lucan Care (‘Lucan Care’ or ‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 July 2003.
The First Respondent to the Appeal is Robert Johnson (‘the Worker’) and the Second Respondent is Macquarie University.
The Worker filed submissions in reply to the appeal on 11 November 2003.
Macquarie University filed submissions in reply to the appeal on 13 February 2004. It submitted that the Arbitrator did not err in her decision and that it should be confirmed.
This matter was referred to me for review on 27 January 2004.
No new evidence has been submitted on the appeal. The documents that were before the Arbitrator and a transcript of the arbitration proceedings are in evidence in the appeal. Oral submissions were heard on the appeal on 18 February 2004.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 10 July 2003 records the Arbitrator’s orders as follows:
1. that the Applicant’s employment with the First Respondent, Leichhardt Uniting Church (Lucan Care) was to the nature of which the injury was due;
2. that the deemed date of injury for the purposes of section 17 of the Act is February 1999 being the last day of employment with the First Respondent – Leichhardt Uniting Church (Lucan Care);
3. that compensation is payable to the Applicant pursuant to section 17(c)(ii) by Leichhardt Uniting Church (Lucan Care);
4. that the Applicant’s employment with the Second Respondent being Macquarie University (from 7 August 1967 to 1 December 1972 and from February 1983 to 1988) falls outside the “relevant period” of five years before the date of injury for the purposes of section 17(d) and (e) of the Act.
Lucan Care submits that Mr Johnson’s hearing loss was due entirely to his employment with Macquarie University and that the Arbitrator’s decision should be amended accordingly.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
· Did the Arbitrator err in finding that Lucan Care was the Worker’s ‘last noisy employer’?
· Did the Arbitrator err in giving no, or insufficient, weight to the evidence suggesting that Macquarie University was the Worker’s ‘last noisy employer’?
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The appeal meets the threshold test in section 352(2) of the 1998 Act.
Leave to appeal was granted on 27 January 2004.
EVIDENCE AND SUBMISSIONS
The facts of this matter are set out in the decision of the Arbitrator and are not repeated in full here. The documents in evidence before the Arbitrator, and before me on appeal, are identified in that decision. The Worker gave sworn oral evidence at the arbitration hearing and the Arbitrator permitted cross-examination of him. A transcript of the proceedings is also before me on the appeal.
In summary, Mr Johnson’s evidence was that:
· His hearing problems developed over time, having first noticed tinnitus about ten years ago. At that time he was working at Ryde Hospital where he was employed full time driving a station wagon. He stated that this employment was not ‘noisy’.
· From 7 August 1967 to 1 December 1972, and from February 1983 to 1988, he was employed by Macquarie University operating a franking machine, which he considered noisy.
· He was employed by the Leichhardt Uniting Church (Lucan Care) as a bus driver and personal care assistant from 4 November 1996 to 15 February 1999. His duties consisted of six hours of bus driving daily.
· He claims that the bus was in poor condition and emitted a persistent loud roaring noise. The noise of the bus increased when it was going uphill.
There is no dispute that Mr Johnson suffers binaural hearing loss, although the extent of that loss is in dispute. If liability for this hearing loss is founded in either of his employers, it will then be a matter for an Approved Medical Specialist, appointed by the Commission, to provide an independent assessment of his injury.
The worker filed a medical report from Dr Scoppa, Ear, Nose and Throat Surgeon, to the effect that his employment with Lucan Care was likely to have been the last noisy employment that contributed to his hearing loss. The Worker’s treating doctor, Dr Sinha essentially agreed with this view. Audiometric testing showed bilateral sensorineural hearing loss consistent with industrial deafness.
In support of Lucan Care’s submission that it was not a noisy employer it filed a report of noise conduction studies on a ‘Toyota Coaster minibus’ from the Lucan Care fleet, which were carried out by Camets Acoustics. This report concluded that the bus driver would not have been exposed to noise levels above the standards set out in the Occupational Health and Safety (Noise) Regulation 2001. It was agreed that the studies were not conducted on the same bus that Mr Johnson had driven. As a consequence the Arbitrator gave no weight to the report of Camets Acoustics.
Mr Johnson gave evidence that the noise of the bus that he drove was significantly greater than that of the bus that was studied. He stated that the bus he drove had faulty air-conditioning forcing him to drive with the windows down and thus increasing the level of noise. He could not hear persons speaking behind him in the bus.
The Appellant submitted that the Arbitrator erred in finding that the workers employment with Lucan Care was noisy employment. The Appellant submits that the Arbitrator had erred in giving no, or insufficient, weight to:
·The Applicant’s evidence that his tinnitus and loss of hearing commenced in about 1993 when he was employed at Ryde Hospital.
·The Applicant’s evidence that working on the franking machine at Macquarie University was noisy.
·The Workers account of his work as a driver at Ryde hospital, which he claimed was not noisy.
·The Applicant’s evidence that he considered only his employment with Macquarie University was noisy.
·The evidence that Lucan Care bus driven by Mr Johnson was certified to be in an acceptable state of repair, and the maintenance and registration records to this effect.
The Appellant also submitted that the Arbitrator erred in not allowing cross-examination of Dr Scoppa and placed too much weight on his evidence.
The Appellant submitted that the Arbitrator placed undue weight on the Worker’s evidence of the noise of the bus, in the absence of any expert evidence to support that it was noisy.
The worker submits that the Arbitrator, correctly, found Mr Johnson to be a frank and credible witness. His evidence was supported by that of Ms Armstrong, Audiometrist, Dr Scoppa, Ear, Nose and Throat Surgeon, and Dr Sinha, the treating general practitioner.
DISCUSSION AND FINDINGS
The Worker has the onus of proving that the Respondent was a ‘noisy employer’ in the terms required by section 17(1) of the Workers Compensation Act 1987 (‘the 1987 Act’)(Blayney Shire Council v Lobley & Another (1995) 12 NSWCCR 52 at 55 (‘Lobley’)). This requires the Worker to prove, on the balance of probabilities that her employment with the Respondent was ‘employment to the nature of which the injury was due’. Where the Worker satisfies this test the ‘evidentiary onus then shifts to such employer sued to seek to establish that protective measures in fact in place excluded the possibility of any such injury’ (Lobley at 64).
The Court in Lobley, reviewed the relevant authorities in relation to the interpretation of section 17(1) of the Act, and similar provisions, and concluded, (Cole JA), that:
. . .It follows from these authorities that in determining whether, at the time when notice of injury was given, Mr. Lobley was “employed in an employment to the nature of which the injury was due”, attention 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. (at 64)
and further
. . it is sufficient for a claimant worker to establish that the employment in which he was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. If evidence establishes that circumstance the worker satisfies the onus of establishing that at the time of giving notice he was employed in an employment to the nature of which the injury was due. (at 65)
Establishing that the ‘tendencies, incidents or characteristics’ of particular employment were of a type to give rise to hearing loss may rely upon one or more of, the proof of relevant facts about the specific employment, the applicability of various industry standards, expert scientific and acoustical testing and reports, and medical evidence in relation to the worker’s particular circumstances, vulnerabilities and injury. It will be for the decision-maker to weigh all of the evidence and, if satisfied, on a real, as opposed to merely theoretical level, that “there were a sufficient number of incidents, characteristics and tendencies in the workplace to translate into a permanent hearing impairment, then the employment could be characterized as “noisy” ” (Gordon v General Cargo Forwarders Pty Ltd [2000] 20 NSWCC 48, see also Ambulance Service of NSW v Daniel (2000) 19 NSWCCR 697).
In this matter the Arbitrator heard the oral evidence of the Worker and considered the medical and audiometric reports before her. The Arbitrator accepted Mr. Johnson as a witness of truth. She accepted his evidence, that the bus driven for Lucan Care was exceptionally noisy, that he could not hear people speaking to him when he was driving and that he was forced to drive with the window down, thereby increasing the level of noise.
The acceptance or rejection of the evidence is a matter solely for the Arbitrator. In the absence of demonstrable error, for example that the exercise of this discretion was unreasonable, informed by mistake or fraud, or affected by bias, then the Arbitrator’s view on the relative weight of the evidence should not be interfered with.
In addition to the documentary evidence the Arbitrator had the considerable advantage of seeing and hearing Mr Johnson give oral evidence, and is the only person who is in a position to assess his credibility and truthfulness (Abalos v Australian Postal Commission (1990) 171 CLR 167). The function of a Presidential Member on review of an Arbitrator’s findings based on credit is to ensure the decision is not affected by demonstrable mistake or misapprehension about relevant facts and that the ‘value and importance’ of the advantage of the Arbitrator has not been misused (State Rail v Earthline Constructions Pty Limited (In liquidation) (1999) 160 ALR 588).
Many of the Appellant’s claims on appeal concern alleged errors of the Arbitrator in the exercise of her discretion in relation to the weight to be given to the evidence. In my view the Arbitrator did not err in making findings of fact based upon the evidence before her. The statement of reasons clearly sets out the evidence she has taken into account, her reasons for preferring the evidence of Mr Johnson and Dr Scoppa, and for discounting the report of Camets Acoustics Pty Ltd.
The fact that Mr Johnson considered the franking machine at Macquarie University to be ‘noisy’, and that he also drove a bus for Ryde Hospital which he claimed was not ‘noisy’, do not negate the finding that his employment, which involved driving a particular bus for Lucan Care, was ‘noisy’. Having found that his employment with Lucan Care was ‘noisy’ the Arbitrator was correct in finding that this was Mr Johnson’s last noisy employment.
The Arbitrator was entitled to place weight on the report of Dr Scoppa. The Appellant did not seek to have Dr Scoppa called for cross-examination. This would, in any event, have been a matter for the Arbitrator to determine. The ‘Guideline for the Practice of the Conciliation/Arbitration Process’ in the Commission provides that (at page 10):
Questioning or cross examination of witnesses (including parties) will be permitted in very limited circumstances and only if the Arbitrator is of the view that it is necessary to come to a decision. Circumstances where cross-examination may be allowed could include where:
· contradictory evidence requires to be clarified or tested, or
· adverse matters material to the decision should be put to a witness when there has been no previous opportunity for these to be answered.
I agree with the undated submissions of the Second Respondent received by the Commission on 13 February 2004, that Gloria Armstrong and Dr Sinha’s reports were consistent with the report of Dr Scoppa (at para 9).
The Appellant argued, at the hearing, that the Arbitrator had erred in her application of the relevant ‘test’ of noisy employment, as set out in Callaby v State Transit Authority (NSW) 2000 21 NSWCCR 216. I do not accept this submission. The Arbitrator correctly set out the test from Callaby and noted “Callaby’s case also establishes that it is not only the level of noise but its duration which is important in determining whether the employment carries the risk of industrial deafness”. She then proceeded to consider the evidence before her in light of the ratio of Callaby.
In my view the Arbitrator did not err in finding that Lucan Care was the Worker’s ‘last noisy employer’ nor in giving insufficient weight to all of the evidence before her. The decision should therefore be confirmed.
DECISION
The decision of the Arbitrator is confirmed.
Dr Gabriel Fleming
Deputy President
20 February 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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