Zoghbi v Star Track Express Pty Limited
[2009] NSWWCCPD 55
•21 May 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Zoghbi v Star Track Express Pty Limited [2009] NSWWCCPD 55 | |||||
| APPELLANT: | Charleb Zoghbi | |||||
| RESPONDENT: | Star Track Express Pty Limited | |||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-8415/08 | |||||
| ARBITRATOR: | Ms A. Simpson | |||||
| DATE OF ARBITRATOR’S DECISION: | 11 February 2009 | |||||
| DATE OF APPEAL DECISION: | 21 May 2009 | |||||
| SUBJECT MATTER OF DECISION: | Boilermakers deafness; proof of noisy employment | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Sanford Legal | ||||
| Respondent: | Gillis Delaney Lawyers | |||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination dated 11 February 2009 is confirmed. | |||||
| Each party is to pay his or its own costs of the appeal. | ||||||
INTRODUCTION
This appeal concerns whether the worker’s employment as a freight handler between July 2004 and December 2006 was employment that constituted “noisy employment” within the meaning of the Workers Compensation Act 1987 (‘the 1987 Act’). All references in this decision to “noisy employment” are references to employment to the nature of which the condition of boilermaker’s deafness or deafness of like origin is due (section 17(2) of the 1987 Act).
BACKGROUND
The worker, Mr Zoghbi, claims compensation for 6% whole person impairment as a result of noise induced hearing loss (‘boilermaker’s deafness’). He started work with the respondent, Star Track Express Pty Limited (‘Star Track’), on 12 July 2004 and ceased on 11 December 2006.
Star Track denies that it was a “noisy employer”.
The deemed date of injury is alleged to be 11 December 2006.
A Commission arbitrator heard the claim on 15 January 2009. No oral evidence was led and the matter proceeded with the Arbitrator hearing submissions from both sides.
In a reserved decision delivered on 11 February 2009, the Arbitrator made an award for the respondent on the ground that she was not satisfied that Mr Zoghbi had discharged the onus of proof and that Star Track was not “the last noisy employer” (Statement of Reasons (‘Reasons’) at [34]). The Arbitrator made no order as to costs.
By an appeal filed on 26 February 2009, Mr Zoghbi seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
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’).
There is no dispute that the monetary thresholds in section 325(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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.
EVIDENCE
Mr Zoghbi’s evidence
Mr Zoghbi provided two brief statements in support of his claim, the first dated 20 June 2008 and the second dated 22 December 2008. Neither statement is particularly helpful in establishing the matters necessary to prove his case.
His evidence is that he commenced work with Star Track as a freight handler sometime in April 2004 and that he last worked on 11 December 2006. In fact, Mr Zoghbi started work at Star Track on 12 July 2004. His evidence as to the exposure to noise is found in paragraphs [5] and [6] of his first statement where he said:
“5. I was exposed to the noise of the machinery and on questioning I had to shout above the noise to be heard.
6. As a result of the nature and conditions of my employment with the Respondent, I have sustained a loss of hearing.”
In his second statement, he added that after applying for employment with Star Track in 2004, he was required to undertake a hearing test and general health examination at a medical centre at Mount Druitt. He states that the doctor told him that he did not suffer from any hearing loss and that his health was good.
In respect of his duties with Star Track, Mr Zoghbi said:
“10.During my work with the Respondent, I was never fixed in one position as a freight handler for local parcels ready for distribution within NSW. These distribution areas for Local Parcel/Box distribution were referred to as ‘West Wishbone’, ‘Central Wishbone’ and ‘East Wishbone’.
11.Each of these distribution areas consisted of conveyor belts that would carry hundreds if not thousands of boxes per day at different weights to be delivered to various areas within NSW and interstate.
12. I was required to stand by the conveyor belt and unload the boxes off the conveyor belt onto a designated stand allocated to me by the Respondent. For example, if all parcel/delivery of boxes were to be delivered to a suburb, such as ‘Wetherill Park’ and surrounding suburbs, then I would be directed to unload all boxes/parcels off the conveyor belt onto the stand in readiness for pick up to be loaded onto the trucks.
13. I would unload these boxes continuously per day for approximately 4 – 6 hours per day.
14. As for the balance of my hours per day, I would be required to clean the floors under the conveyor belts or required to load and unload trucks full of boxes direct onto the stand and/or conveyor belts.
15. The noise generated by these conveyor belts was extremely loud.
16. When talking to fellow employees or truck drivers, I would either have to raise my voice or shout as the noise levels would become unbearable.”
In support of his claim, Mr Zoghbi relies on two reports from Dr Howison, ear nose and throat specialist, the first dated 6 February 2008 and the second dated 4 December 2008. In his first report, Dr Howison took a history that whilst working with Star Track Mr Zoghbi was exposed to the noise of machinery and that he “had to shout above this noise to be heard”. Dr Howison concluded:
“From his history, I feel that Star Track Express would qualify as a noisy employer. Mr Zoghbi has not worked since December 2006.”
Dr Howison also recorded that Mr Zoghbi had worked as a cleaner from 2002 to 2004. In his opinion, his work as a cleaner would not have exposed Mr Zoghbi to “any significant noise”.
In his second report, Dr Howison commented on a noise assessment conducted by Star Track on 13 May 2002. He stated:
“As can be seen from this noise survey there are locations where the noise level is above 85 dBA. It is considered that noise above 85 dB(A) can cause damage to the inner ear. I note that this survey was carried out in 2002 and various recommendations were made to reduce the level of sound to which employees were exposed.
I note that Mr Zoghbi only commenced employment with Star Track Express in April 2004. Therefore a sound study would need to be made after the date of his commencement to determine whether in fact Mr Zoghbi was working exposed to loud industrial noise above 85dB(A) of sound. If Mr Zoghbi was exposed to noise above 85dB(A) then Star Track Express could be considered a noisy employer. If he was not exposed to noise above 85dB(A) then his employment is not the cause of his noise induced deafness.”
Star Track’s evidence
In 2008, Star Track retained the investigators MPOL Group Pty Ltd (‘MPOL’) to conduct an investigation into not only Mr Zoghbi’s industrial deafness claim but also his claim for compensation in respect of a shoulder injury. The shoulder injury forms no part of the present claim. In the course of its investigations, MPOL took statements from several witnesses and obtained copies of noise assessments conducted by Star Track in May 2002 and February 2008.
MPOL took statements from Mark Mead, team leader in freight handling, Robert Wotton, AM unload manager and Kevin Pearce, freight handler.
Mr Mead started with Star Track in October 1989 and at the time he gave his statement on 13 May 2008 had been team leader for six years in the “central wishbone” area. Most of his statement dealt with Mr Zoghbi’s shoulder claim. However, in respect of the hearing loss claim, he stated that when Mr Zoghbi stopped work he was working in bays 53 and 51 and that he had been working on those runs for some time. He added at paragraph [16] of his statement:
“I had never noticed that Charlie had any problems with hearing more than the others and he had never complained about hearing problems. It is a noisy environment but not an overly noisy. There is hearing protection available but it is not compulsory.”
Mr Wotton started working with Star Track in August 1988 and has been the AM unload manager since November 2005. He knew Mr Zoghbi to be a casual AM freight handler who worked from 6am until about 2pm Monday to Friday. In respect of the hearing claim, Mr Wotton said at paragraph [15] of his statement:
“When I was informed that Charlie was making workers compensation claims for industrial deafness I was surprised because the area he works in is a quieter area compared to some areas and there have been noise level tests done in that area. A radio can be heard in that area without being on full. Also all the time Charlie has been off work it has been because of the incident when he stopped work and it has never been work related.”
Mr Pearce started with Star Track in March 1997, initially as a casual, and then as a permanent freight handler. He had been working the AM shift for about ten years. He worked in bays 56, 56a and 57. He knew Mr Zoghbi and worked with him at Star Track. In respect of the hearing loss claim, Mr Pearce said at paragraph [12] of his statement:
“I haven’t ever had any hearing protection given to me and have never been advised that I had to wear hearing protection. There is no hearing protection available in the wishbone area. The noise in the centre wishbone area doesn’t worry me and I don’t know of anyone else worried about it.”
The noise assessment results from the 2008 assessment were compared with the results obtained in 2002 and set out in a schedule completed by OHS co-ordinators Kristen Langhorne, Mark Lean Fore and Gillian Sid on 21 February 2008. The schedule is reproduced below:
2002 2008 Location Average Exposure Time 8am 6pm 8am 6pm Bulk Shed near door to admin 30 minute transient 78 82 74 76 Bulk Shed under Control Room near entrance to ramp 30 minute transient 80 85 77 79 On Control Room platform outside door 30 minute transient 78 84 76 76 At scanner of Sortation System 1hr per shift 83 86 80 81 1st ladder platform south of the scanner 2hrs per shift 84 85 84 84 3rd ladder platform south of the scanner 2hrs per shift 83 84 81 80 Lower level, southern end of sorter 1hr per shift 88 89 83 82 Up on last ladder platform on sorter 3hrs per shift 86 85 82 80 Under sorter adjacent to wishbone amenities 30 minutes transient 81 82 78 80 West Wishbone 77 72 77 71 East Wishbone 79 73 78 73 Bottom Bulk Shed Under long line near bottom carousel 77 76 N/A N/A Southern Wishbone N/A N/A 71 71 Adjacent to lanes 32/34 77 78 74 76 Adjacent to lanes 10/8 78 81 76 76 Top ramp under sorter 30 minutes transient 75 83 74 78 Bulk Shed MCL Carousel N/A N/A 72 75
Star Track also relies on evidence from Dr Seymour, ear nose and throat specialist, dated 21 July 2008. He took a history that Mr Zoghbi had noted deafness for five years, unaccompanied by tinnitus. He gave no history of noisy hobbies, exposure to firearms, hereditary deafness, ear infections, ear operations or military service.
In respect of the noise assessment, Dr Seymour stated:
“Taking into account the noise survey of this applicant’s workplace carried out by MPOL Group it is noted that there are two recorded places in this applicant’s workplace where the noise levels could exceed marginally the statutory threshold of 85db. However taking into account the recorded average exposure time for this applicant it is unlikely that he would have been exposed to noise levels sufficient to give rise to acoustic trauma. It is unlikely therefore, that any of this applicant’s present hearing loss would have been sustained during his employment with Star Track Express.”
Dr Seymour concluded:
“The diagnosis is mild sensory hearing loss, possibly due to occupational noise exposure.
Taking into account the noise levels recorded by MPOL of this applicant’s workplace it is unlikely that the noise levels would have been sufficient to give rise to acoustic trauma.”
ARBITRATOR’S REASONS
After reviewing the evidence, the Arbitrator made the following observations and findings:
(a)Dr Howison had only been provided with the 2002 noise assessment (Reasons, at [24]);
(b)Dr Seymour noted the MPOL Group information and as MPOL undertook the investigation and the noise assessments were contained in their report, it could be safely assumed that Dr Seymour was provided with both noise assessment reports (Reasons, at [24]);
(c)Mr Zoghbi worked in the “west, centre and east ‘wishbone’ areas” but it was unclear exactly where his workplace was in relation to the location of the noise level tests conducted in 2002 and 2008 (Reasons, at [26]);
(d)the respondent’s submission that Dr Howison provided no real basis upon which he came to his conclusion had some “real basis” (Reasons, at [31]);
(e)the noise assessments at peak times for the west, east, southern wishbone areas were at all times well under the 85db threshold (Reasons, at [32]);
(f)taking all the evidence into consideration she found that Mr Zoghbi had not discharged his onus and that Star Track was not the last noisy employer (Reasons, at [34]);
(g)though the acoustic testing straddled Mr Zoghbi’s period of employment, she was satisfied that it revealed the true indication of the noise levels over his period of employment, with levels generally decreasing between the two assessments (Reasons, at [35]);
(h)Mr Zoghbi moved from location to location during the course of his shift and during the course of his working week (Reasons, at [36]);
(i)there were some minor inconsistencies in Mr Zoghbi’s history to Dr Howison and Dr Seymour. He did not tell Dr Seymour of his two years military service. He told Dr Howison that he noticed a deterioration of his hearing in early 2007, but told Dr Seymour that he noted deafness for five years (Reasons, at [37]);
(j)Dr Howison had not been provided with the second noise level report, which revealed an improvement in the noise levels and the comparison of assessments related to locations (Reasons, at [38]);
(k)Dr Seymour’s report was the more compelling as it was based on both acoustic reports (Reasons, at [40]);
(l)there was no evidence to suggest that the respondent had withheld a pre-employment report. It was unclear whether there was a report specifically on Mr Zoghbi’s hearing, or whether any report was forwarded to Star Track (Reasons, at [41]), and
(m)there would be an award for the respondent.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to make an award for Mr Zoghbi;
(b)in finding that Mr Zoghbi only worked for one hour per day in the noisier activity area around the conveyor belts;
(c)in assessing the medical evidence;
(d)misdirecting herself on the evidence, and
(e)failing to draw an inference under Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (‘Jones v Dunkel’) against the respondent for failing to produce the results of a hearing test conducted on Mr Zoghbi immediately prior to his commencement of employment in July 2004.
SUBMISSIONS, DISCUSSION AND FINDINGS
It is submitted on behalf of Mr Zoghbi that:
(a)the Arbitrator could not rely on the noise assessments in determining the noise level from July 2004 until December 2006 because they straddle Mr Zoghbi’s period of employment and there is no evidence that the noise levels remained the same between the relevant dates;
(b)when the noise assessments were conducted, workers were using hearing protection and, as Mr Zoghbi and Mr Pearce were never offered such protection, this throws some doubt on the veracity of the tests and the conditions in which they were undertaken;
(c)the Arbitrator erred in finding (at paragraph 33 of her Reasons) that Mr Zoghbi only worked for one hour per day in the noisier activity around the conveyor belts. Based on paragraph 10 of Mr Zoghbi’s statement, he spent at least one to three hours per day doing the conveyor belt work and, in any event, all his work was close to the conveyor belts;
(d)the noise assessments by MPOL cannot be used to assess the noise to which Mr Zoghbi was exposed;
(e)the evidence of noise, which is not contradicted, is that Mr Zoghbi had to shout when speaking to people and that he worked near the conveyor belts at all times;
(f)Dr Seymour did not see both noise assessments, as the Arbitrator determined;
(g)there is no evidence that the noise assessments represent the noise at the time Mr Zoghbi worked for Star Track;
(h)Dr Howison took a history that Mr Zoghbi had to shout at work and had no hearing protection. This was sufficient to allow him to assess the respondent as a noisy employer. Both Dr Howison and Dr Seymour agree that Mr Zoghbi has noise induced deafness, and
(i)in respect of the pre-employment hearing assessment, the only evidence is that Mr Zoghbi had a hearing test and medical examination. The Arbitrator was not entitled to disregard this clear evidence, which the respondent has not rebutted. Therefore, the only conclusion is that Mr Zoghbi had normal hearing before he started with the respondent and, as there is no other factor that caused his hearing loss, his current loss has resulted from his employment with the respondent.
It is submitted on behalf of Star Track that:
(a)the noise assessment reports show that over the period when Mr Zoghbi worked for the respondent, there was no excessive noise at the workplace;
(b)the availability of hearing protection does not, in itself, indicate excessive noise levels, or throw doubt on the validity of the noise assessment tests;
(c)the Arbitrator’s finding that Mr Zoghbi only worked for one hour per day in noisy activities around conveyor belts was based on the May 2002 noise assessment;
(d)Mr Zoghbi’s statement does not offer a clear and certain time period during which he worked directly or immediately around the conveyor belts. He merely gave an estimate and the Arbitrator was correct to rely on a formal report, which was based on general observations of the workplace and work practices;
(e)Mr Zoghbi’s evidence cannot be relied upon as it is inconsistent with tests conducted at the workplace before and after his alleged injuries developed. His subjective test of what he experienced is not as reliable as an objective indicator of noise levels;
(f)the real issue is whether Mr Zoghbi’s hearing loss was sustained as a result of his employment with the respondent;
(g)Dr Seymour’s opinion is correct, and
(h)the Arbitrator was not obliged to draw any inferences from the absence of the medical examination undertaken when Mr Zoghbi was employed in 2004.
DISCUSSION AND FINDINGS
The inadequate preparation of this case (by both parties) has made the resolution of this matter more difficult than should have been the case.
Whilst I agree that the noise assessments did not cover the period of Mr Zoghbi’s employment and are therefore of limited probative value, especially in circumstances where no attempt was made to properly identify Mr Zoghbi’s exact work locations and to compare those locations with the locations where the noise readings were taken, they did indicate that in 2002 there were only two locations where the readings were above 85dbA on the morning shift, the shift on which Mr Zoghbi worked. Those locations were described as “lower level, southern end of sorter,” which had a reading of 88dbA with an average exposure of one hour per shift, and “up on [the] last ladder platform on sorter,” which had a reading of 86dbA with an average exposure of three hours per shift. Whether Mr Zoghbi worked at those locations and, if so, for what length of time during his shift, is not known. His statement is so poorly drafted that it is impossible to identify his exact work locations relative to the locations of the noise readings.
What steps were taken to reduce noise levels after the 2002 assessment and when they were taken is not known, but it is known that noise levels were generally lower in the 2008 readings. As a result, there is no objective evidence of the noise levels to which Mr Zoghbi was exposed when he worked with Star Track. It is therefore necessary to consider the other evidence in the case.
Dr Howison’s first report is not persuasive in determining if Star Track was a noisy employer at the time when Mr Zoghbi worked there as it rests solely on Mr Zoghbi’s subjective evidence that he had to shout to be heard. His evidence that he had to raise his voice or shout when talking to fellow employees or truck drivers “as the noise levels would become unbearable” is vague, imprecise and unsatisfactory. It is not known over what distance Mr Zoghbi had to raise his voice to talk to others, or how often that would occur.
His evidence is inconsistent with the lay witness statements relied on by Star Track. The evidence from Mr Wotton, that Mr Zoghbi worked in a quieter area, compared to some areas, and that a radio could be heard without it being on full, tends to rebut the worker’s evidence. Mr Pearce’s evidence may well have been of assistance, because he worked “not far from” Mr Zoghbi. However, all he says is that the noise in the “centre wishbone area” did not worry him. Though this is of limited probative value it tends to rebut Mr Zoghbi’s claim rather than support it.
Dr Howison’s second report, responding to the 2002 noise assessment, was more specific about the level of noise needed to cause hearing loss. He noted that noise above 85db(A) “can cause damage to the inner ear”. Whilst two locations on the morning shift at Star Track (the shift on which Mr Zoghbi worked) recorded noise just above that level in the 2002 noise assessment, there is no evidence that Mr Zoghbi worked at either of those locations, or, if he did, for how long. The second report does not assist Mr Zoghbi.
The fact that the noise assessments were conducted while some workers wore hearing protection is irrelevant. The noise level remains the same regardless of whether workers were using hearing protection at the time the noise readings were taken. It is also irrelevant that neither Mr Zoghbi nor Mr Pearce were offered hearing protection. If anything, that tends to suggest that the noise levels where they worked were not excessive, but it does not throw doubt on the “veracity” of the noise assessment tests, as Mr Zoghbi has submitted.
The Arbitrator did not find that Mr Zoghbi only worked for one hour per day in the noisier activity around the conveyor belts. At paragraph 33 of her Reasons, the Arbitrator said:
“The 2002 assessment notes ‘lower level, on walkway beneath ladder platform southern end of sorter’ as 88db at 8am and 89db at 6pm. In comparison the latter assessment notes 83db and 82db respectively. The average exposure time in this area is noted to be 1 hour per shift.”
According to the May 2002 noise assessment report, the reference to the average time exposure of one hour was a reference to an “estimate of employee exposure”. It is not known if Mr Zoghbi worked in the area identified for that period and the reference to paragraph 10 of Mr Zoghbi’s second statement, where he said he was “never in one position”, does not assist. If that is correct, he would not have been exposed for even one hour to the higher level of noise referred to by the Arbitrator. The submission that Mr Zoghbi spent at least one to three hours per day doing conveyor belt work is not supported by any persuasive evidence and, in any event, begs the question of how much time, if any, did he spend in the “lower level, on [the] walkway beneath [the] ladder platform [at the] southern end of [the] sorter”.
It is not clear if Dr Seymour saw both noise assessments, but that is of no consequence. The probability is that he saw the 2002 assessments because he refers to two locations where the noise levels marginally exceeded what he called the “statutory threshold” of 85db. Those levels only appear in the 2002 assessment. In these circumstances, his opinion is even more persuasive because the 2002 report had the higher noise level readings and, notwithstanding those readings, Dr Seymour concluded that it was unlikely that those levels were sufficient to give rise to acoustic trauma.
Thus Dr Seymour’s evidence is against the worker and Dr Howison’s evidence is unpersuasive. As a result, the evidence has not established a prima facie case that Mr Zoghbi’s employment with Star Track was “noisy employment”.
Mr Zoghbi also submits that as both Dr Howison and Dr Seymour have assessed that he has some noise induced hearing loss and, as his only noise exposure was with Star Track, it follows that Star Track must be a noisy employer. I do not accept this submission. Dr Seymour’s evidence is that the 1% binaural hearing loss he assessed Mr Zoghbi to have could “possibly” be due to noise exposure. He also took a history that Mr Zoghbi had previously worked as a cleaner and, in the course of that work, used vacuum cleaners and floor polishers. Dr Seymour was not made aware of Mr Zoghbi’s two years of military service. In these circumstances, it is not correct that Mr Zoghbi’s only exposure to noise was with Star Track.
Last, Star Track has tendered no evidence in response to Mr Zoghbi’s evidence in his second statement that he underwent a hearing test at or about the time he started work in 2004 and was told that he did not suffer any hearing loss. It is argued that the only conclusion is that Mr Zoghbi had normal hearing before he started work with Star Track and, as there is no other factor that caused his hearing loss, his current loss has resulted from his employment with Star Track.
Essentially, Mr Zoghbi relies on a Jones v Dunkel inference from Star Track’s failure to tender any evidence to rebut his evidence that his hearing test in 2004 was normal. I accept Mr Zoghbi’s evidence that he had a hearing test at the request of Star Track in 2004 and, in the absence of an explanation for the test not being tendered (and, contrary to Star Track’s submissions, none has been offered), I infer that it would not have advanced Star Track’s case. However, the rule in Jones v Dunkel does not permit an inference that the untendered evidence would in fact have been damaging to Star Track and the rule cannot be used to fill gaps in the evidence, or to convert conjecture and suspicion into inference (Jones v Dunkel at 308, 312 and 320-1).
There are significant gaps in Mr Zoghbi’s case and the unexplained absence of the 2004 hearing test does not fill those gaps. The question I have to determine is whether Mr Zoghbi was employed in employment “to the nature of which the injury [of boilermaker’s deafness] was due”. The hearing test done in 2004, combined with other expert evidence as to the relevance of those results and the relevance of Mr Zoghbi’s history, may well have been of assistance on this issue. Without such evidence, however, the unexplained absence of the 2004 test does not, of itself, fill in the gaps in the evidence or convert “suspicion into inference” on which to base a finding in favour of Mr Zoghbi. That is especially so in the present case where there is an extraordinary disparity between the hearing loss results from Dr Seymour (1.4% reduced to 1% for unrelated losses) and Dr Howison (15.3% reduced to 10.7% for unrelated losses).
The test is not whether Mr Zoghbi’s employment with Star Track caused his hearing loss, as Star Track has submitted. Without knowing the exact results of the hearing test done in 2004 and without expert evidence commenting on those results and comparing it to the present test results and taking a full and proper history, it is not open to conclude that Star Track was a noisy employer under section 17 of the 1987 Act in the period of Mr Zoghbi’s employment from July 2004 until December 2006.
It follows that Mr Zoghbi has not discharged the onus of proof and has not established that his employment with Star Track was employment to the nature of which the injury of boilermaker’s deafness is due.
OTHER MATTERS
Dr Seymour’s reference to the “statutory threshold” should not be seen as a reference to any threshold set in either the 1987 Act or the 1998 Act. Though it has generally been accepted that a noise level of 85dbA for eight hours per day will be sufficient to create a real risk of hearing loss, that is not a “statutory threshold” and each case will depend on its own facts.
To establish that an occupation is employment to the nature of which boilermaker’s deafness is due, the worker must establish that the employment carries a real, as opposed to theoretical, risk of hearing loss (Callaby v State Transit Authority (NSW) & another (2000) 21 NSWCCR 216). In determining that question, both the noise level and the length of the exposure are of critical importance (Dawson and others t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35).
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded, for the reasons given in this decision, that the Arbitrator’s decision is correct and I agree with her conclusions.
DECISION
For the reasons given in this decision, the Arbitrator’s determination dated 11 February 2009 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
21 May 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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