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Deafness, industrial

Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37. Roche AP

To succeed in a claim for compensation for industrial deafness, the worker must establish that the nature of his or her employment with the employer in question involved a real, as opposed to a theoretical, risk of hearing loss: Ambulance Service of NSW v Daniel [2000] NSWCA 116; (2000) 19 NSWCCR 697.

Dr Macarthur’s history and findings on examination, coupled with his conclusion that Mr Howard suffers from bilateral sensori-neural deafness (boilermaker’s deafness) and has not suffered a severe head injury or been exposed to other relevant noise as an employee in New South Wales, provided a fair climate for the Arbitrator to accept the doctor’s opinion: Paric v John Holland Constructions PL [1985] HCA 5859 ALJR 844[1984] 2 NSWLR 505 at 509–510).

Qantas Airways Ltd v Strong [2011] NSWWCCPD 40. Keating P.

69. The submissions by Qantas and Workcover concerning the literal interpretation of s 69A [1987 Act] ignore the fact that the assessment of an entitlement to compensation for boilermakers deafness is governed by the application not only of s 69A, but also by s 322 of the 1998 Act and by cl 9.11 of the Workcover Guides.

Section 322(1) provides that the assessment of the degree of permanent impairment for the purposes of the Workers Compensation Acts is to be made in accordance with the Workcover Guides (as in force at the time the assessment is made) issued for that purpose.

... the Workcover Guides are specific and unambiguous, in that an allowance of up to five per cent may be added to the work-related binaural hearing impairment before the determination of the whole person impairment.

...

82. The Workcover Guides are expressed in clear and unambiguous terms. An allowance of up to five per cent may be added to the work-related binaural hearing impairment for severe tinnitus caused by a work-related injury, after presbycusis correction if applicable, and before determining the whole person impairment.

Neither Qantas nor Workcover has made any submissions regarding the construction of s 322 in light of the clear terms of cl 9.11 of the Workcover Guides.

83. The language of cl 9.11 is inconsistent with the submission by Qantas and Workcover that the threshold must first be satisfied in order to trigger an additional allowance for severe tinnitus. If that were so, the words of cl 9.11 might have been expected to have been expressed in terms of permitting an additional allowance after determining the whole person impairment, but that is not the case.

84. ... Whether the condition is characterised as a secondary symptom or not is irrelevant because tinnitus is recognised as a compensable condition under the Workcover Guides and, for the reasons I have already given, any additional allowance for tinnitus must be added to the assessed hearing impairment before an assessment of the whole person impairment is reached.

Combined Civil PL v Rikaloski [2007] NSWWCCPD 181. Roche DP.

The deputy president said [infra 31]: "... a history recorded by a doctor can be evidence of the facts recorded: Daw v Toyworld (NSW) PL [2001] NSWCA 25 and s 60 Evidence Act 1995. ... "Dr Lucchese's history that Mr Rikaloski was exposed to noise from construction site machinery was evidence of that fact. However, much more is needed in order to establish that employment is employment to the nature of which boilermaker's deafness is due.

"In Galdemar v Asta Enterprises PL (1998) 17 NSWCCR 155, at 161, it was noted that it is not merely the level of noise to which a worker is exposed but also the length of the exposure that is relevant. Those issues must be the subject of relevant specialist evidence: Galdemar at 160.

Roche DP continued [32]: "The more relevant challenge to the arbitrator's decision is that there was no evidence of the noise level to which Mr Rikaloski was exposed, the period of exposure, and whether those two factors were sufficient to result in his employment being employment to the nature of which boilermaker's deafness is due. I agree with this submission.

"The arbitrator conceded as much when he said there was no evidence that Mr Rikaloski's employment exposed him to a noise level of 85 dB. Therefore, it was not open to the arbitrator to find that Combined was a noisy employer under the legislation.

Vescio v Pirelli Cables [2010] WCC 471. Mr R. Perrignon, Arb.

33. If accepted, the evidence of Dr Livesey that Mr Vescio’s employment with each Respondent, as it was described to him orally and in Mr Vescio’s statement, ‘gives rise to a real risk of industrial deafness’, is sufficient to establish that each such employment occurred in an environment which could cause industrial deafness.
34. The failure to call evidence from an acoustical engineer, or to produce evidence of precise measurements of noise levels at each place of employment, is not fatal to the claim: Dawson and others t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 at paras 37-38 and 41; Ilievski v Sutherland Shire Council (unreported, 6 March 2001, Judge Burke, Compensation Court of NSW); Costello v Citra Constructions Limited (Full Federal Court) (1989) 22 FCR 247. It was not fatal to the claim in Lobley.

Such evidence may be relied on by a Respondent in order to discharge its onus of showing that the relevant employment could not have caused the injury, as it was in Kelvey v Westbus Region 1 Pty Limited [citation] but no such evidence was adduced by either Respondent in this case.
35.

On the other hand, as Roche DP observed in Dawson at para 44:

‘Whilst it is not necessary for a worker to call an acoustics 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 acoustics expert is to be relied on) 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.’

36. In this case, Mr Vescio has given evidence of the nature and duration of the noise exposure in both employments. In respect of his employment with CCSR, he said that he was exposed to  noise in the warehouse for about half his 12-hour shifts, four days per week. That establishes the duration of the exposure.

Of its nature, he said that the noise emanated from the motor and fans of the cool room, from forklifts – which he drove for periods of an hour without break, and for up to four hours at a time with few breaks – delivery trucks, and the loud ringing of the phone, which the Tribunal infers was sufficiently loud to be heard throughout the warehouse where he worked. To be heard by a fellow worker, he would have to raise his voice and get close to the person involved. The noise level, he says, was about the same wherever he worked in the warehouse.

37. For reasons already given, the Commission has accepted the accuracy of Mr Vescio’s evidence, and has made findings in accordance with it. Together with the evidence of Dr Livesey, it is sufficient to establish that Mr Vescio’s employment with CCSR was employment ‘to the nature of which the injury was due’.

38. Dr Waldman does not express a contrary view. He merely says that Mr Vescio was ‘not exposed to serious noise’ during his employment with CCSR. If he inferred from that that the employment was not causative, or that the employment was not of a nature which could give rise to the deafness, he did not say so. Even if he had, Dr Livesey’s opinion is to be preferred, because the Commission has accepted the truth of Mr Vescio’s evidence, and it follows that Dr Waldman’s opinion was based on an incomplete history. 39. For those reasons, the Commission finds that Mr Vescio’s employment with CCSR was ‘employment to the nature of which the injury was due’, within the meaning of section 17(1).

Zalovski v One Steel Ltd [2008] WCC MA 283. Medical appeal panel of arbitrator Ms Nicholl and Drs Scoppa and Burns, in [20]:

"In addition the AMS has incorrectly excluded the losses in the lower frequencies as being noise induced, which is inconsistent with the decision by the Medical Appeal Panel in Shone v Country Energy [2007] NSWWCCMA 18" (link to summmary).

Later, [29]: "In the present case the AMS accepted that all the sensorineural hearing loss in both ears was due to industrial deafness, and as a result the decision of the Medical Appeal Panel in Shone v Coutry Energy [2007[ NSWWCCMA 18 has no application.

"That is, the AMS made no deduction for low tone sensorineural hearing loss but made a deduction for a unilateral left conductive hearing loss which is unrelated to occupational noise exposure.

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