Greens Industries Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 163/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN GREENS INDUSTRIES LIMITED of Hamilton Appellant (Appeal No. DCA 311/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 16th day of July 1997 APPEARANCES CJ Eggleston for appellant P A McBride for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether Mr W W McDean (the worker) has suffered a hearing loss which is a work injury. The worker lodged a claim for cover with the respondent on 25 October 1995 claiming to have suffered a hearing loss as a consequence of gradual process in his employment. He was then employed as a despatch supervisor with the appellant. The respondent requested the worker to complete a gradual process questionnaire in which he stated that his deafness was caused by the nature of his work which was general engineering workshop work, press work, trolleys, forklift, hammering, etc. Earmuffs were worn in the workshop." 2 The worker had been employed by the appellant since July 1979 and his non-work activities included painting and trout fishing. He did not consider that any of his non-work activities could have contributed to his deafness. The employer provided a gradual process questionnaire which showed that the worker had joined the company in 1979 as a process worker. In 1982 he was appointed supervisor for the assembly area and in August 1992 appointed to the position of despatch supervisor in charge of the despatch warehouse. The appellant noted that the worker's employment history included: 3 years in the Welsh Guards 2 years as an aircraft/ airframe fitter 3 years as a furnace man open hearth furnace 5 years as a fireman with the fire service 13 years as a farmhand On the basis of his previous occupations the appellant submitted to the respondent that the previous employment in the aircraft assembly industry and the fire service would have contributed to the hearing loss. The respondent obtained a report from Dr F Jean-Louis, an Ear Nose and Throat Surgeon, which is dated 21 December 1995 and states: "HISTORY OF HEARING LOSS Mr McDean presents with a progressive hearing loss that has been noticeable especially over the last year. It is equal in both ears. He has found increasing difficulty in conversational speech on a one to one basis and with background noise. He takes the phone to try to hear it and squeezes it tightly to his ears but still has difficulty on the phone. The television has to be very loud and annoys his wife when it is on. Mr McDean has tended to ignore embarking on conversations rather than entering on them as he finds himself quite incapacitated. He has no associated tinnitis or balance disturbance. PAST HISTORY OF NOISE EXPOSURE Mr McDean migrated from the UK. At the age of 18 he was in active service in the army for three years but was not exposed to much shooting as he was in the signals. He was then a fireman for five years and felt that this was not a noisy job either. From 1965 when he arrived in New Zealand he took on farm work performing many farm duties such as milking and driving a tractor. He did not find this particularly noisy . For the last 17 years he has been involved in engineering and this is moderately noisy work. He does a lot of press work and general manufacturing. Within the factory there are certain designated for ear muffs as they are particularly noisy but in all other areas 3 where ear muffs are not used there is still a lot of background noise. Over the last five areas he has been in the despatch area which is particularly noisy but is not a designated ear muff area. He finds that he notices the loud noises a lot more and that they bother him. He does not have any noisy hobbies. PAST MEDICAL HISTORY AND FAMILY HISTORY Mr McDean is in generally good health. He has had some minor operations but has generally been well. There is no significant family history of hearing loss although his mother did go deaf with old age and she died at the age of 93. He has never had a skull fracture, TB, meningitis or any ear surgery. PHYSICAL EXAMINATION The external ear, the ear canal, the tympanic membrane and the middle ears were normal on both sides. His nose and throat were clear. The tuning fork tests were normal with the Weber central and Rinne positive bilaterally. PURETONE AUDIOMETRY performed on 21/12/95 by Brett Robertson, Audiologist Frequency (Hz) 500hz 1k 1.5k 3k 4k 6k 8k Left air conduction (dB) 5 5 10 20 50 50 45 45 Right air conduction(dB) 10 10 20 20 55 65 55 55 Right bone conduction(dB) (unmasked) 20 55 55 ASSESSMENT Mr McDean is a 62 year old man who has a long history of working in a noisy environment using no hearing protection. He has gradually noticed a hearing loss which is causing him a lot of incapacity in conversational speech and in social function. Allowing for his age and using the NAL scale I find him to have 6.9% disability. I have recommended that he should wear maximum hearing protection and that he should have bilateral hearing aids. SUMMARY Mr McDean has a long history of noise exposure and has subsequently moderately severe bilateral sensorineural hearing loss which amounts to a 6.9% disability on the NAL scale." On 13 February 1996 the respondent notified the worker that his claim for cover had been accepted under s.7 of the Accident Rehabilitation and Compensation Insurance Act 1992. On 14 February 1996 the respondent notified the appellant of its decision 4 and also that it had decided to apportion 55 percent of the worker's claims costs to the appellant. Subsequently on 19 August 1996 the respondent notified the appellant that it had re-examined its calculation and found that the correct rate of apportionment to the appellant was 36 percent. The appellant applied for a review of that decision. The review officer held that on the totality of the evidence the worker's hearing loss had been contributed to by his employment. It is against that decision which the appellant now appeals. During the course of the review hearing the appellant had provided an article by Professor P Alberti, Professor of Otolaryngology, University of Toronto in Canada which noted that hearing loss starts earlier on and not after a number of years of exposure. The article stated that noise induced hearing loss typically develops in the first few years of exposure and may worsen over the following 8 to 10 years. The appellant also provided a diagram of its factory premises which had been tested in April 1993 by the Labour Department's OSH Inspector and the various noise levels throughout the building had been recorded. The reading in the foundry area was 85 Db, the machinery area 90 Db, press shop 80 Db, powder coat line 75 Db and barrow assembly line 75 Db. The despatch area, it was submitted, was not a noisy area and no readings were made in that area. The appellant also provided a page from the Department of Labour handbook on noise levels which disclosed that the noise in an average factory varied between 80 and 90 Db's and that long exposure to noise over 85 Db may eventually harm hearing. The noise levels in busy traffic is noted as 75 Db and conversational speech as 66 Db. While those readings were made in 1993 the appellant confirmed that no further reading had been done nor did the respondent take any steps to verify them. The appellant submitted further that Dr Jean-Louis in her report merely relied on the statements made by the appellant without any detailed description of the noise in the particular areas of the factory. She simply accepted his statements of the conditions in his work environment. The appellant submitted that the safe environmental noise was at the 85 decibels limit while the level in the despatch area was 75 Db which I understand to mean that it is 100 times less than the 85 Db which constitutes the action threshold. The appellant submitted that it was odd that the respondent had not provided any of this material to Dr Jean-Louis who simply relied on the work description provided by the worker. The appellant also submitted that having regard to the work history prior to the worker taking employment with the appellant the work as an aircraft/ airframe fitter and as a furnace man both involved excessive levels of noise which could well have been the cause of his problems. Mr McBride submitted that in order to qualify for cover each of the requirements of s.7(1)(a), (b) and (c) are to be satisfied and that the egg shell skull principle applies. He submitted that on the basis of the specialist report which is the only one available the progressive hearing loss was attributable to the appellant's employment. He submitted that there is a strong inference that the worker's employment in the appellant's factory, at the very least, contributed to a progressive hearing loss. Mr 5 Mcbride submitted that there is no suggestion that the worker's non-employment activities contributed to his hearing loss. Insofar as s.7(1)(c) is concerned, Mr McBride submitted that the noise in the employment environment over a long period, combined with a possible hearing loss sensitivity, collectively constituted a greater risk for persons such as the worker than for persons who did not perform the task in that employment. On the face of it, work in a foundry may well be considered to be an environment conducive to the creation of hearing loss. However, when the appellant's evidence is considered in detail, it is clear that at no time was the worker involved in an area in which the recorded noise level was above the action threshold. While the readings submitted by the appellant were taken in 1993, the evidence was that there had been no change in the basic working of the plant and that none of that evidence was submitted to the specialist for consideration, nor did the specialist visit the factory or make tests in regard to the noise level. The evidence also established that while the worker had at one stage been employed in an area where the reading was 100 times below safety level he had for some time been employed in an area which was considered to be safe so far as noise exposure was concerned and did not even qualify for the need to be tested in 1993. I am concerned that undue reliance has been placed on the specialist report without any regard to the actual conditions in which the worker was employed. The appellant has gone to some trouble to provide research details of the areas and I consider that they demonstrate that the worker's claims that he was involved in a noisy area are not justified. In my view, insufficient research was undertaken by the respondent and the details now provided by the appellant satisfy me that the decision of the review officer was wrong. The appeal is therefore allowed. There will be costs to the appellant of $850. DATED at WELLINGTON this 7th day of August 1997 A W Middleton District Court Judge de31196.doc(rd)