Industrial Deafness Claims: An Arbitrator is not an Expert on Noise Levels

Industrial Deafness Claims: An Arbitrator is not an Expert on Noise Levels

by Christine Tsekouras | August 2007 Area of Expertise | Workers Compensation

Summary In Combined Civil Pty Ltd v Stanko Rikoloski [2007] NSWWCCPD 181, the Workers Compensation Commission determined that a worker bears the onus of proving that his employer was a noisy employer and that this onus cannot be discharged without expert evidence regarding noise levels.

The Commission applied the decision of the Court of Appeal in Makita (Australia) Pty Limited v Sprowles and held that a medical opinion based on the mere assertion of noisy employment, without details of the criteria relied on to support the assertion, was insufficient for a finding of noisy employment and that an Arbitrator has no expertise in relation to the issue of noisy employment. It overturned the Arbitrator’s decision and dismissed the worker’s claim.

The worker’s evidence was of the type generally served upon employers and insurers when making a claim for compensation for industrial deafness. The decision is significant as it provides guidance to employers and insurers as to whether or not a worker’s evidence will be sufficient to discharge their burden of proving noisy employment.

The Claim The worker (Stanko Rikoloski) had worked for the employer (Combined Civil Pty Ltd) for 7 years as a traffic controller, for 4 hours per day, 7 days per week until 13 September 2001, changing line posts on roads. He had not worked since then.

In his Statutory Declaration (filed in support of his claim), the worker alleged that in the course of his work he was exposed to “noise of truck engines and traffic movements” and that as a result of that noise he was “not able to communicate with co-workers at a normal conversational level” and had to “shout in order to be heard”. He claimed compensation pursuant to Section 66 in respect of an alleged 9.2% binaural hearing loss and hearing aids and alleged that the employer was his last noisy employer.

The worker relied upon a medical report from Dr Lucchese, ENT Surgeon, who took a history that the worker was “exposed to noise of construction site machinery, without hearing protection.” However, Dr Lucchese did not obtain any history regarding the average duration of noise exposure on a daily or weekly basis. Dr Lucchese concluded: “On the balance of probabilities, Mr Rikaloski’s hearing loss in the low tones through to the high tones is attributed to exposure to industrial noise as detailed in the employment history above, as he has over twenty years of noise exposure. The last noisy employer was Combined Civil Pty Ltd.”

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The employer disputed liability on the basis that it was not the last employer to employ the worker in employment to the nature of which hearing loss was due. It relied on a medical report from Dr Carroll, ENT surgeon.

The worker told Dr Carroll that he was last employed by Combined Civil Pty Ltd, for whom he worked for 6.5 years as a traffic controller. Dr Carroll noted that the worker “….used to insert the candy bars into the road to divert the traffic on two major roads. His noise exposure came from traffic movement.” Based on this history Dr Carroll concluded: “I was not convinced upon the history which I obtained that Combined Civil would qualify as the last noisy employers.”

The worker filed an ARD and the dispute regarding noisy employment proceeded to determination at Arbitration hearing.

The Arbitrator’s Decision In an ex tempore decision the Arbitrator found for the worker in relation to the issue of noisy employment.

He determined that the employer was the last noisy employer. The Arbitrator based his decision on the following evidence: •

• •

The history taken by Lucchese that the worker was exposed to noise from road construction machinery. He accepted this as evidence of that fact, although the worker’s statement did not refer to to any employment in the field of road construction; Dr Lucchese’s opinion that the employer was “the last noisy employer”; and His own experience of noise levels generated in the road construction industry.

He concluded that noise in the road construction industry averages out at 85 decibels per working day (although he conceded that there was no evidence of this) and commented that the average duration of noise exposure was irrelevant, provided that the workplace generated noise levels in excess of 85 decibels.

The employer appealed against the Arbitrator’s decision.

The Decision on Appeal On appeal, the employer challenged the validity of the Arbitrator’s finding of fact regarding the worker’s alleged exposure to noise from “road construction site machinery” on the basis that the worker’s statement did not allege this. Rather, the worker’s evidence was that he was exposed to noise from “truck engines and traffic movement”.

DP Roche determined that the Arbitrator was entitled to make a finding of fact that the worker was exposed to noise from road construction machinery because “a history recorded by a doctor can be evidence of the facts recorded”. Whilst this ground of appeal failed, the appeal was upheld on a number of further grounds.

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DP Roche held that the Arbitrator’s finding that the employer was a noisy employer should be overturned, as there was no expert evidence tendered by the worker regarding the noise levels to which he was exposed (i.e. whether the workplace produced or was likely to produce noise levels in excess of 85 decibels), the period of exposure to such noise and whether those two factors were sufficient to result in his employment being employment to the nature of which boilermaker’s deafness is due. He held that in the absence of expert evidence on these two issues, it was not open to the Arbitrator to find that the employer was a “noisy employer”.

DP Roche cited with approval the decision in Galdemar v Asta Enterprises Pty Ltd (1998) 17 NSWCCR 155, which he felt was authority for the proposition that when determining whether a particular employer is noisy it is not only necessary to consider the level of noise to which a worker was exposed, but also the length of the exposure and that these two issues must be the subject of relevant specialist evidence. The worker cannot give evidence on these two issues.

The Arbitrator had conceded that the worker did not tender any evidence that indicated that his employment exposed him to noise levels of at least 85 decibels (the current limit set by the Australian Standards as a safe level of exposure). However, he sought to overcome this deficiency in the worker’s evidence by asserting his own expert knowledge gained from determining other claims by road construction workers.

DP Roche held that whilst the Commission is an expert tribunal and it is taken to be aware of wage rates in the general labour market, its expertise does not extend to determining issues of “injury” and “causation” without appropriate expert evidence. Therefore, the Arbitrator was not entitled to draw from his personal knowledge of noise surveys tendered in other matters to conclude that the employer in this matter was a noisy employer.

The only “expert” evidence relied upon by the worker was the opinion of Dr Lucchese, who opined that the employer was the last noisy employer. However, DP Roche applied the decision of the Court of Appeal in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 and held that Dr Lucchese’s opinion could not be accepted as his report did not set out the information required for the trier of fact to evaluate the validity of his conclusion. The bald assertion made by the doctor that the worker was exposed to the noise of “construction site machinery” was of no assistance in evaluating the validity of the doctor’s opinion. Rather, the relevant issue the expert should have considered, but did not, was “… how noisy was that machinery and over what period was Mr Rikaloski exposed to that noise? Without answers to those questions from a properly qualified expert, Mr Rikaloski’s claim must fail.”

DP Roche set aside the Arbitrator’s decision and entered an Award in favour of the Employer.

Conclusion The decision in this matter confirms that the worker bears the onus of proving noisy employment. The onus can only be discharged based on expert evidence that sets out the facts alleged, evidence supporting the expert’s opinion and the criteria that the expert relied upon to formulate their opinion regarding “noisy employment”.

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This will usually require the expert to address the following issues in their report:

• • •

The likely noise levels generated in the workplace; The period or duration of noise exposure; and Whether these two factors were sufficient to create a risk of injury to hearing.

Unless the report contains this information, it will be insufficient to discharge the worker’s onus of proof.

Dr Lucchese’s report is typical of reports served in support of industrial deafness claims. More often than not, such reports do not contain any specific information regarding the likely noise levels generated in the workplace and the “expert” (usually an ENT Surgeon) purports to express an opinion that the workplace was noisy - without explaining the basis for that opinion. Based on the decision in Rikaloski, claims based on such evidence must fail.

For more information, please contact:

Christine Tsekouras Special Counsel T: 02 8257 5735 christine.tsekouras@turkslegal.com.au

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