(Section 17of the WCA 1987) Craig Bell and Stephanie Wigan | July 2012 | Employers Liability
TurksLegal recently represented the interests of the respondent and successfully defended a claim of noisy employment in the case of Michael (Mirko) Petrevski and The Beverley Park Golf Club Ltd (WCC matter no 10920/11, determined 2 July 2012). The decision highlights the importance for insurers to obtain expert evidence and signed statements (where possible) in order to defend an allegation of hearing loss caused by noisy exposure at work.
Who does this impact? Insurers and employers faced with a claim of hearing loss caused by alleged noisy exposure at work.
What action should be taken? Where possible, a proper investigation is to be undertaken when a worker makes a claim for hearing loss caused by noisy exposure at work. Such an investigation should include obtaining expert evidence and signed statements from the relevant parties.
TurkAlert
Expert Evidence Successfully Relied Upon to Defend a Claim of Noisy Employment
The Facts In Michael (Mirko) Petrevski and The Beverley Park Golf Club Ltd (WCC matter no 10920/11, determined 2 July 2012) TurksLegal has recently represented the interests of the respondent and successfully defended a claim of noisy employment. The worker is a 62 year old man who had worked for the employer as a barman from 12 January 2000 to 30 August 2006. In the undated Claim Form, the worker alleged that he sustained industrial deafness as a result of his employment with the employer and a deemed date of injury was provided as being 30 August 2006 (being last date of employment). In accordance with the findings of an occupational noise survey, the insurer issued the worker with a Dispute Notice. Liability for the claim was disputed on the basis that the employer was “not a noisy employer, not employment to the nature of which the injury was due” and reliance was placed on Sections 17, 60 and 66 of the WCA 1987. The matter proceeded to a contested hearing before Arbitrator Phillips. In the Certificate of Determination and Statement of Reasons dated 2 July 2012, the Arbitrator undertook a comprehensive analysis of the available case law and considered it necessary to “therefore examine the quality of the parties’ evidence in order to determine whether the [worker] has proved on the balance of probabilities that his employment with the [employer] was
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of the nature to which his alleged hearing loss injury was due”.
Conclusion
Reference was made to the decision of Dawson & Ors Trading As The Real Cane Syndicate v Dawson (2008) NSWWCCPD 35 (Dawson) whereby Deputy President Roche described the standard of evidence necessary to prove a hearing loss claim as being:
The recent decision of Michael (Mirko) Petrevski and The Beverley Park Golf Club Ltd (WCC matter no 10920/11, determined 2 July 2012) highlights the importance for insurers to obtain expert evidence and signed statements (where possible) in order to successfully defend a claim of hearing loss caused by alleged noisy exposure at work.
“Whilst it is not necessary for a worker to call an acoustic engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say ‘my employment was noisy and I have boilermaker’s deafness’. It is always essential that he or she present detailed evidence (if no acoustic expert is to be relied upon) of the nature (volume) and 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…”.
TurkAlert
Expert Evidence Successfully Relied Upon to Defend a Claim of Noisy Employment Craig Bell and Stephanie Wigan | July 2012
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When examining the available evidence in the current matter, Arbitrator Phillips highlighted that there was a “variation in the parties’ respective evidence” as to what noise the worker had been subjected to in his duties as a barman for the employer.
Craig Bell Partner T: 02 8257 5737 M: 0418 673 112 craig.bell@turkslegal.com.au
The Arbitrator referred to the noise conduction survey expert report relied upon by the employer/ insurer in defence of the worker’s claim of industrial hearing loss. The employer had also provided witness statements clarifying that the worker mainly worked during the daytime when the club was not busy and that he rarely worked at functions. However the worker did not rely upon any countervailing expert opinion in support of his claim.
Stephanie Wigan Lawyer T: 02 8257 5707 M: 0417 479 920 stephanie.wigan@turkslegal.com.au
Without any evidence to the contrary, Arbitrator Phillips accepted the findings of the ‘Calculated Average Daily Noise Exposure’ assessment which was included within the employer’s expert report as being below the level required to induce hearing loss due to noise at work. Ultimately the Arbitrator was “therefore not persuaded” on the balance of probabilities that the worker had “made out his case” that he had suffered industrial deafness caused by noisy exposure at work.
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