Jackie Bedkober | June 2012 | Employers Liability
The recent case of Murie v Schindlers Lifts Australia Pty Ltd [2012] NSWWCCPD 22 provides useful guidance to employers or insurers dealing with industrial deafness claims. The decision discusses the evidence a worker must provide in order to establish that their employment was “employment to the nature of which the injury was due”.
Who does this impact? Employers or insurers dealing with industrial deafness claims.
What action should be taken? >> On receipt of a claim for industrial deafness, closely review the evidence provided by the worker to support their claim.
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President clarifies evidence required to establish noisy employment
>> Remember that all ear, nose and throat surgeon (‘ENT’) reports have to include a history of the nature (volume) and extent (duration) of the worker’s exposure to noise. If you receive an ENT report which does not meet this standard, the claim should be declined on the basis that the worker has not met the onus of proving noisy employment. >> If the worker has provided a statement, look for inconsistencies in the worker’s account of noise and the history included in the ENT report. Material inconsistencies could also give rise to a dispute on the basis that the worker has not met the onus of proof.
Murie v Schindlers Lifts Australia Pty Ltd [2012] NSWWCCPD 22 President Judge Keating was asked by an appellant worker to review an Arbitrator’s determination that he had failed to prove that his employment was “employment to the nature of which the injury was due”. The worker, a fitter and machinist, had relied on his two written statements, his oral evidence and the medical reports of Dr Raj both dated 27 September 2010. President Keating described the evidence of Dr Raj as being “quite brief”. Dr Raj had noted in his report that the worker was employed by the respondent for 19
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years. The doctor stated that over this period the worker “was involved in the installation and repairing of lifts. This again involved the use of similar machinery as [his previous job], such as welders, grinder, hammers and other similar noisy machines”. In his first statement, the worker said that when he first started work for the respondent, he was working on building sites for about four years, undertaking repair and maintenance work. During this time, he stated that he was exposed to noise from grinders, drills, power tools and construction noise. He claimed that “shortly after” for about 10 years, he undertook repair and maintenance of escalators and lifts and was exposed to noise in particular from power tools. In his second statement, the worker again stated that he had initially worked on the installation of lifts around numerous constructions sites. He listed further sources of noise exposure including rivet guns, electric saws and hammering which he said he was exposed to on a “regular and daily basis”. He said this noise made it difficult for him to speak to others on the construction site. The worker then provided a different history to that contained in his first statement by stating that four or five years after his commencement with the respondent, he was transferred to services and repairs and was involved in reroping lifts and repairing gearboxes and motors. He said that he was exposed to noise from grinders, drills, power tools and other equipment as well as to construction noise and that he was unable to communicate with persons one metre away when equipment was in use. The worker also stated that for the last ten years of his employment he serviced escalators and that this work involved inspecting switches and oil levels and some electrical repairs. The Arbitrator followed the well established authority of Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 by accepting that in
order to determine whether the worker was “employed in an employment to the nature of which the injury was due”, the worker was not required to establish that his employment with the respondent actually caused his hearing impairment but that the “tendencies, incidents or characteristics” of his employment were of a type that could give rise to the injury in fact suffered. Further, in accordance with the case of Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35, the Arbitrator proceeded on the basis that the worker was required to “present detailed evidence ... 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”.
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President clarifies evidence required to establish noisy employment Jackie Bedkober | June 2012
On review, President Keating held that the Arbitrator had correctly applied the principles in the above mentioned authorities. The president commented that Dr Raj had obtained no history of the nature (volume) and extent (duration) of the worker’s exposure to noise and as such it did not provided a “fair climate for the acceptance of his report”. Further, President Keating held that it was open to the Arbitrator to give Dr Raj’s evidence little weight considering that it was at odds with the accepted evidence of the worker. In this regard, he stated as follows: “[T]here is a critical omission from Dr Raj’s history, in that his opinion is based on a history that Mr Murie was involved in the installation and repair of lifts throughout his employment. That is simply not the case. The evidence is that Mr Murie’s initial employment for about four years involved the installation of lifts but, thereafter, he transferred to a repair and service role, where the exposure to noise, on his own evidence, was different. In the latter role, he says that he was exposed at times to the noise
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President clarifies evidence required to establish noisy employment Jackie Bedkober | June 2012
In summary, President Keating has confirmed that workers are required to provide evidence from an ENT regarding the nature (volume) and extent (duration) of their exposure to noise in order to discharge their onus of proof under Section 17 of the Workers Compensation Act NSW (1987). If there are any material inconsistencies between the evidence of the ENT and the evidence of the worker, this could affect the worker’s ability to prove noisy employment.
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of grinders, drills, power tools and various other equipment whereas, in his previous role, he was exposed to hammering, electric saws, grinders, compressors, rivet guns, power tools, and other construction noise on a regular and daily basis. None of these matters are considered in Dr Raj’s evidence and, for these reasons, it was open to the Arbitrator to give it no weight.”
For more information, please contact: Jackie Bedkober Lawyer T: 02 8257 5774 M: 0438 850 999 jackie.bedkober@turkslegal.com.au
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