September 2017

Industrial Deafness: the importance of establishing facts

In workers compensation cases, it is almost second nature for both parties to obtain a medical opinion.

However, what is sometimes overlooked is ensuring that the facts medical opinions rely on are verified and correctly stated in the medical reports.

The importance of this step was illustrated in the recent Presidential decision of Cunningham v State of New South Wales [2017] NSWWCCPD 27.

Facts & the Arbitral decision

Mr Cunningham worked at Royal Prince Alfred Hospital as a security officer. This role required him to monitor alarms amongst other duties.

There was no dispute Mr Cunningham suffers from industrial deafness.

Mr Cunningham alleged the hearing loss is due to employment with the hospital. He relied upon an IME report and the employer upon a noise level survey.

The arbitrator found Mr Cunningham’s employment with the hospital did not have the “tendency, incidents or characteristics which give rise to a real risk of suffering noise induced hearing loss.”

In making this finding, the arbitrator indicated in particular Mr Cunningham’s evidence did not provide a satisfactory factual basis for his medical expert’s opinion and that medical opinion failed to distinguish between the signal of an alarm going off and the noise of the alarms themselves.

The worker appealed the decision.

Presidential Decision

On appeal, Judge Keating confirmed the arbitrator’s determination. He concluded the worker failed to prove the hospital was a noisy employer and the arbitrator’s reasoning was correct.

Judge Keating noted the case of Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 indicated a worker needs to provide detailed evidence to an expert of the “nature (volume) and extent (duration) of the noise exposure” during employment to allow the expert to determine if such employment gives rise to a real risk of hearing loss. It is not enough for a worker to simply say “my employment was noisy and I have boilermaker’s deafness”. A worker needs evidence of the nature (volume) and extent (duration) of the noise exposure to be provided to an expert. General assertions will not suffice.

Judge Keating indicated the worker’s evidence was too general and did not meet the requirements for an accurate assessment of noise exposure. He indicated the arbitrator correctly found the worker’s evidence did not provide a satisfactory factual basis for his medical expert’s opinion and as such the worker’s medical evidence should not be accepted.

He found that there was no error in the arbitrator preferring the more detailed and reliable factual evidence from the employer and the noise survey which that evidence underpinned and the employer relied upon.

The lesson learned

This case illustrates it is important to gather evidence which tests the factual assertions before briefing experts.

This can often make the difference in what lay and expert evidence is ultimately considered reliable and accepted by a decision maker, and determine the outcome.

Author: Kevin Chen