CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Boccola v Commonwealth Steel Company Pty Ltd t/as Moly-Cop & Anor [2024] NSWPIC 314	
		
APPLICANT:	Raul Boccola	
		
FIRST RESPONDENT:

SECOND RESPONDENT:	Commonwealth Steel Company Pty Ltd t/as Moly-Cop

Orica Australia Pty Ltd	
		
Member:	Rachel Homan	
		
DATE OF DECISION:	17 June 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum compensation and binaural digital hearing aids for industrial deafness injury; identification of the last noisy employer; Blayney Shire Council v Lobley & Anor; Held – the first respondent was the last noisy employer for the purposes of section 17(1); first respondent to pay the costs of supply and fitting hearing aids; matter remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment.
	
determinations made:	The Commission determines:
1.	The first respondent was the last employer by whom the applicant was employed in an employment to the nature of which his hearing loss injury was due for the purposes of s 17(1) of the Workers Compensation Act 1987.
2.	The first respondent to pay the costs of and incidental to the supply and fitting of binaural digital hearing aids in accordance with s 60 of the Workers Compensation Act 1987 and the and the Workers Compensation (Hearing Aid Fees) Order 2024.
3.	The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:		30 June 1994 (deemed)
Body part/system:	Permanent binaural hearing loss (Noisy employment hearing loss)
Method:			Table of Disabilities
4.	The materials to be referred to the Medical Assessor are to include this certificate of determination and statement of reasons together with all of the documents in evidence and considered in making this determination.

STATEMENT OF REASONS
BACKGROUND
1.	Mr Raul Boccola (the applicant) was employed by Commonwealth Steel Company Pty Ltd t/as Moly-Cop (the first respondent) between 1989 and 1994 and Orica Australia Pty Ltd (the second respondent) between 1994 and 2005.
2.	The applicant has made claims on both employers for an industrial deafness injury.
3.	The first respondent disputed the claim made upon it in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 23 January 2023. 
4.	The second respondent disputed the claim in a notice issued on 14 August 2023. That decision was maintained following internal review on 10 November 2023.
5.	Both respondents dispute that they were the applicant’s last noisy employer for the purposes of s 17 of the Workers Compensation Act 1987 (the 1987 Act).
6.	The current proceedings were commenced by lodgement of an Application to Resolve a Dispute lodged in the Personal Injury Commission (the Commission) on 16 February 2024. The applicant seeks compensation pursuant to s 60 of the 1987 Act for the costs of supplying and fitting binaural digital hearing aids as well as lump sum compensation for permanent impairment pursuant to s 66 of the 1987 Act.
ISSUES FOR DETERMINATION
7.	The parties agree that the following issues remain in dispute:
(a)	the identification of the last employer by whom the applicant was employed in an employment to the nature of which the injury was due pursuant to s 17 of the 1987 Act; 
(b)	the degree of permanent impairment resulting from the injury, and 
(c)	the entitlement to compensation for binaural hearing aids pursuant to s 60 of the 1987 Act. 
PROCEDURE BEFORE THE COMMISSION
8.	The parties appeared before the Commission for conciliation conference and arbitration hearing on 2 May 2024. The applicant was represented by Mr Trainor of counsel, instructed by Mr Bechelli. The first respondent was represented by Mr Guest, legal practitioner, The second respondent was represented by Mr Morgan of counsel, instructed by Mr Rago.
9.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 
EVIDENCE
Documentary evidence
10.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	Application to Resolve a Dispute and attached documents;
(b)	Reply lodged by the first respondent;
(c)	Rely lodged by the second respondent;
(d)	documents attached to an Application to Admit Late Documents lodged by the first respondent on 8 March 2024;
(e)	documents attached to an Application to Admit Late Documents lodged by the first respondent on 19 April 2024, and
(f)	written submissions prepared on behalf of the first respondent, dated 1 May 2024.
11.	There was no application to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
12.	The applicant’s evidence is set out in a written statement made on 13 February 2023.
13.	The applicant referred to and adopted the employment history set out in the report of Dr Daron Cope.
14.	With regard to his employment with the second respondent, the applicant estimated that 95% of his time was spent working in an office, which was not noisy. Approximately two to three times per year, he would go to a noisy site. 
15.	At the noisy site, the applicant would attend project meetings in the office. After the meetings, he would go into the workshop to inspect the work being undertaken. The applicant would be in the workshop for no more than 10-15 minutes. The applicant wore hearing protection whilst there.
16.	Once or twice a year, he would also attend mining sites. At the mining sites, the applicant spent most of his time in an office or inspecting the mine by car, which was not noisy.
Dr Cope
17.	The applicant relies on a medicolegal report prepared by Ear, Nose and Throat (ENT) surgeon, Dr Daron Cope, dated 25 January 2022.
18.	Dr Cope recorded that the applicant reported a gradual onset of hearing loss over 30 years. 
19.	With regard to the applicant’s employment history, Dr Cope recorded that the applicant had worked in noisy employment with the Maritime Services Board between 1980 and 1989.
20.	The applicant was employed by the first respondent between 1989 and 1994, during which time he was exposed to noise from electric arc furnaces, rolling mills, forge presses, a foundry, cold shears, band saws and mills. The applicant described having to raise his voice generally in order to communicate at a distance of 1m. The applicant was exposed to noise for four to five hours in a day and worked five days per week. Hearing protection was used.
21.	The applicant reportedly gave a history of employment with the second respondent from 1994 to 2005, during which time he was exposed to noise from metal fabrication and trucks. Dr Cope reported that the applicant was exposed to noise for one hour per day, two to three times per week. The applicant described having to raise his voice generally in order to communicate at a distance of 1m. Hearing protection was used.
22.	Dr Cope identified the first respondent as the last noisy employer, stating:
“In my opinion the last noisy employer with tendencies, incidents and characteristics to cause occupational noise induced hearing loss is Commonwealth steel company pty ltd. He worked for this employer from 1989 to 1994. He was employed by the above employer as a chief electrical engineer and was exposed to 5 hrs of potentially damaging noise per day, 5 days per week. He was exposed to noise from Furnaces, mills, Forge press, saws. Current evidence supports that such noise sources commonly produce noise at levels sufficient to be responsible for the causation of noise induced sensorineural hearing loss.”
23.	Dr Cope found compensable binaural hearing loss and gave the opinion that trial and use of digital hearing aids was reasonably necessary as a result of the noise induced hearing loss.
24.	In a supplementary report, dated 13 September 2022, Dr Cope reiterated his view that the first respondent was the last noisy employer, noting that the applicant had denied any noise exposure during employment with the second respondent.
25.	The same view was expressed in a report dated 12 October 2023.
Dr Tamhane
26.	The first respondent relies upon medicolegal reports prepared by ENT surgeon, Dr Sharad Tamhane, dated 23 December 2022 and 6 March 2024.
27.	In his first report, Dr Tamhane also took a history of gradual deterioration in hearing over many years.
28.	Dr Tamhane recorded an employment history as follows:
“During his employment with Commonwealth Steel Co Limited as a Chief Electrical Engineer for 5 years, Mr Boccola was exposed to loud noise generated by steel and steel product manufacturing. He was exposed to loud noise generated by movement of heavy fixed machinery and large vehicles, rollers and conveyors, band saws, warning signals, alarms and bells. He was exposed to the noise generated by the various departments including the electric arc Furnaces, Rolling Mills, Edgewater Mill, Foundry noise as well as impact noise from loading and unloading materials, steel colliding, steel falling over steel, shearing of metal with the heavy cold shears and forge presses. 
In 1994, Mr Boccola commenced employment as an Electrical Engineer with Orica Explosives until 2005. This was mainly office-based employment with only intermittent noise exposure when visiting the Factory. He reported that he was not exposed to loud and/or continuous noise during this employment.”
29.	Dr Tamhane noted that the applicant had worn hearing protection whenever possible since the 1980s.
30.	Dr Tamhane diagnosed industrial deafness and gave the opinion that the last noisy employer in New South Wales was the first respondent.
31.	Dr Tamhane gave the opinion that the applicant would benefit from well trialled and appropriately fitted bilateral hearing aids. 
32.	In his supplementary report, Dr Tamhane reported that during his examination of the applicant on 23 December 2022, he asked the applicant about his exposure to noise during his employment with the second respondent:
“Firstly, how often did he visit the Plant, and was he exposed to loud noise during his visits? Mr Boccola reported that he visited the Plant for a total of 2 to 3 occasions a week, for up to 2 hours at a time. 
Secondly, did he wear any ear protection? Mr Boccola's response was that he wore ear protection at all times during his visits. 
Thirdly, whether he recalls any incidents of exposure to sudden, extremely loud noise to which he responded 'no’.”
33.	Dr Tamhane gave the opinion:
“Taking into consideration the additional information that you have provided, it is likely that the noise levels generated on the Factory Floor during his employment with Orica Explosives, were higher than 100dB and on occasion, could have been potentially louder. If Mr Boccola was not wearing his ear protection correctly or even if he was not wearing ear protection at all enabling communication during discussions with other workers, it is likely that on the balance of probabilities and after giving him the benefit of the doubt that he was exposed to noise levels which could have been harmful to his ears and which could cause an additional hearing loss.”
34.	Dr Tamhane referred to a table showing the length of time a person without hearing protection can be exposed to noise before exceeding the exposure standard. At 100 dB(A) the exposure time was 15 minutes.
35.	The ‘additional information’ to which Dr Tamhane referred was apparently an abstract of an article titled “Noise exposure and hearing levels of workers in the sheet metal construction trade”, published by GD Kenney and H E Ayer, which the first respondent lodged under cover of an Application to Admit Late Documents.
Dr Howison
36.	The second respondent relies on a medico-legal report prepared by Dr Ken Howison, dated 6 July 2023.
37.	Dr Howison recorded an employment history that was broadly consistent with the applicant’s statement evidence:
“From 1994-2004, he worked as an Electrical Engineer with Orica Explosives. Mr Boccola said 95% of his employment was office-based with only intermittent noise exposure when visiting the factory. Mr Boccola explained that for less than 5% of the working day was he out of his office and exposed to some noise of the factory and the mine. He said that for only 1% of the 5% was he exposed to noise above which he would have to shout to be heard. Mr Boccola explained to me that Orica Explosives was not a noisy employer. For example, Mr Boccola described that he would be in the workshop for 10-15 mins, 3-4 times per year and would only then even consider requiring ear protection. I therefore consider that Orica Explosives was not Mr Boccola’s last noisy employer. 
He was previously employed as a Chief Electrical Engineer with Commonwealth Steel from 1989-1994. In this employment he spent 50% of his time in the office and 50% of his time exposed to the noise generated by the manufacturing of steel and steel products. Mr Boccola describes being exposed to the noise of heavy fixed machinery and to conveyors, band saws, electric furnaces, Edgewater mill and warning signals and alarms. Mr Boccola explained that he would have to shout above this noise for 50% of the working day to converse with colleagues at a distance of one metre and I therefore conclude from this that he was working exposed to an 8-hour equivalent continuous A-weighted sound pressure level of *LAeq 90dB(A) or above. More than two hours of exposure to this level of noise would be sufficient to be responsible for the causation of industrial deafness. I note he wore ear protection when exposed to loud noise.”
38.	Dr Howison concluded that the first respondent was the last noisy employer.

Applicant’s submissions
39.	The applicant submitted that there was no dispute that his employment with the first respondent was noisy. There was a dispute as to whether employment with the second respondent was relevantly noisy.
40.	The applicant referred to his statement evidence with regard to his exposure to noise during his employment with the second respondent. The applicant submitted that having regard to the date of his statement relative to the expert reports it might be inferred that it contained the correct history.
41.	It was noted that all of the doctors initially accepted that the first respondent was the last noisy employer although Dr Tamhane had subsequently revised his opinion.
42.	Dr Tamhane’s revised opinion was based on the assumption that the applicant was exposed to noise at 100 dB(A) or more for 10 to 15 minutes per day. There was a question around whether the evidence supported a finding that the applicant’s employment with the second respondent would have exposed him to that level of noise.
First respondent’s submissions
43.	The first respondent prepared written submissions which were supplemented by oral submissions at the hearing.
44.	The first respondent accepted that it was an employer to which the nature of the injury was due but submitted that the second respondent was also such an employer. The first respondent submitted that the wearing of hearing protection at the second respondent’s workplace established that employment with the second respondent was to the nature of which the injury was due.
45.	The first respondent noted that there were inconsistencies between the applicant’s statement evidence and the histories recorded by the experts regarding the duration of the applicant’s exposure to noise in employment with the second respondent. The first respondent submitted that the history recorded by Dr Cope was to be preferred. Dr Cope provided three reports, all of which recorded the same history of noise exposure during employment with the second respondent, namely an hour per day two to three times per week. 
46.	The first respondent submitted that an incorrect history was recorded by Dr Tamhane in his initial report. When asked to address that point in his supplementary report, Dr Tamhane took a history consistent with Dr Cope’s reports. 
47.	Based on that, more accurate history, Dr Tamhane found that the applicant could have been exposed to harmful levels of noise during his employment with the second respondent. There was no dispute that the applicant wore hearing protection during his employment with the second respondent.
48.	Dr Howison took a history of noise exposure limited to 15 minutes in employment with the second respondent. Even on that history, there was potential for hearing loss.
49.	The first respondent referred to the authority in Blayney Shire Council v Lobley & Another (1995) 12 NSWCCR 52 (Lobley) and submitted that it was not necessary for there to be evidence that employment with the second respondent actually caused hearing loss. The relevant issue was whether that employment was of such a nature as to potentially give rise to such hearing loss.
50.	The first respondent acknowledged that the exact levels of noise in the second respondent’s factory were not known. There was no evidence from the second respondent as to actual noise levels. The evidence did, however, establish that hearing protection was required in the factory. The applicant’s duties involved factory inspections. Accepting the applicant’s evidence that he had to shout to be head, the evidence was suggestive of levels of noise above 100 dB. Once noise levels reached 100 dB, there was potential for hearing loss with less than 15 minutes of exposure. In his second report, Dr Tamhane accepted that there may have been times when the noise levels were even higher. 
51.	The first respondent submitted that the Commission would be satisfied that employment with the second respondent was of a nature as to cause hearing loss.
Second respondent’s submissions
52.	The second respondent agreed that the authority in Lobley was relevant to the Commission’s task and referred also to the decision of Roche DP in Dawson and others trading as The Real Cane Syndicate v Dawson.
53.	The second respondent submitted that it was not incumbent on it to establish that the applicant’s employment was not noisy. The worker was required to advance evidence of noisy employment. The submissions of the first respondent suggested a reversal of that onus.
54.	The second respondent submitted that there was insufficient evidence for the Commission to be satisfied that employment with the second respondent was noisy. 
55.	The second respondent submitted that it was not enough that hearing protection was worn. The applicant was intermittently, at best, exposed to a noisy environment. The applicant’s statement evidence was uncontested. It was plain, on the applicant’s evidence, that 95% of the time he was in the office where it was not noisy. He went to a noisy site two or three times a year, during which time he was in the workshop for no more than 10-15 minutes.
56.	Having regard to the inconsistencies in the evidence, the second respondent submitted that the Commission would not be satisfied that the second respondent was the last noisy employer. As a result, liability fell to the first respondent.
57.	The second respondent submitted that the history recorded by Dr Howison was consistent with the applicant’s statement.
58.	When asked to revise his opinion, Dr Tamhane said he was told that the applicant was exposed to noise on two to three occasions per week for up to two hours at a time. That history did not appear anywhere else in the evidence. Dr Cope’s history was of noise exposure for one hour, two to three days per week.
59.	The second respondent submitted that the evidentiary burden had not been discharged in respect of the applicant’s employment with the second respondent.
FINDINGS AND REASONS 
60.	Section 17 of the 1987 Act contains special provisions in respect of hearing loss injuries:
“17 Loss of hearing—special provisions
(cf former s 7 (4B), (4BB))
(1) 	If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect—
(a) 	for the purposes of this Act, the injury shall be deemed to have happened—
(i) 	where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii) 	where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
…
(c) 	compensation is payable by—
(i) 	where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii) 	where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
…
(2) 	Without limiting the generality of subsection (1), the condition known as ‘boilermaker’s deafness’ and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.”
61.	In A and G Engineering Pty Ltd v Civitarese the Court commented that s 17:
“...provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary, under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that the employment brought about or contributed to the disease; See Smith v Mann [1932] HCA 30; (1932) 47 CLR 426 at 440); Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 332. As Sheller JA said in Rico Pty ltd v Road Traffic Authority (1992) 28 NSWLR 679 at 689-690, section 17 proceeds on a series of fictions or assumptions, upon which a workers entitlement to recover an award under s 66 is based.”
62.	In Elias Fadallah v Canterbury City Council Byron DP noted:
“The Appellant Worker bears the onus of proving that the Respondent Employer was a noisy employer, as required by section 17(1) of the 1987 Act: Galdemar v Astar Enterprises Pty Ltd (1998) NSWCC 47; Blayney Shire Council v Lobley & Another (1995) 12 NSWCCR 52 at 55. He is required to prove on the balance of probabilities, that his employment with the Respondent Employer was ‘...an employment to the nature of which the injury was due...’. If the Appellant Worker is able to satisfy this test, the evidentiary onus shifts to the Respondent Employer, to seek to establish that protective measures that were in fact in place, excluded the possibility of any such injury: Blayney Shire Council v Lobley & Another (supra) at 65. Kirby J observed, at 55:
‘There is an element of artificiality in s17(1) of the Act. The injury, which is the result of a gradual process, is deemed to have happened at an arbitrary time, viz when the notice of injury is given. It is assigned to the employer at that time. But it is only assigned if that employer employed the worker in employment ‘to the nature of which’ the injury was due.’
He went on to say, at 56:
‘If that nature was of a kind which could cause hearing loss, the burden of carrying all past hearing loss falls upon that employer. If that employer contends, notwithstanding the ‘nature’ of its employment, that it did not in fact cause any hearing loss (and thus that ‘the injury was not due’ to the nature of the employment properly understood) the forensic onus of exculpating itself falls upon it...it is enough for the worker to succeed against that employer to show that the ‘nature’ of the employment was such as to give rise to a hearing loss.’
The Court of Appeal in Blayney Shire Council v Lobley & Another (supra) reviewed the relevant authorities as to the interpretation of section 17(1) of the 1987 Act. It said per Cole JA, at 64:
‘...it follows from these authorities that in determining whether, at the time when notice of injury was given, Mr Lobley was ‘employed in an employment to the nature of which the injury was due’, attention must be directed not to whether the employment then engaged in actually caused the injury but whether the ‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered.’
The Court went on to say, per Cole JA, at 65:
‘...it is sufficient for a claimant worker to establish that the employment in which he was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. If evidence establishes that circumstance, the worker satisfies the onus of establishing that at the time of giving notice he was employed in an employment to the nature of which the injury was due’.”
63.	Deputy President Byron added:
“Establishing that the ‘tendencies, incidents or characteristics’ of employment were of a type to give rise to hearing loss is a forensic task relying upon the weight of some or all of a range of matters that may include a worker’s evidence, the proof of relevant facts about the specific employment, the applicability of various industry standards, and expert scientific and acoustic testing and reports. It will be for the decision-maker to weigh all of the available evidence and if satisfied on a real, as opposed to a theoretical basis, that ‘...there were a sufficient number of incidents, characteristics and tendencies in the workplace to translate into a permanent hearing impairment, then the employment could be characterized as “noisy”’: Gordon v General Cargo Forwarders Pty Ltd [2000] NSWCC 48; [2000] 20 NSWCCR 577 at 590; Ambulance Service of NSW v Daniel (2000) (supra).”
64.	In Dawson t/as The Real Cane Syndicate v Dawson, Roche DP said (at [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. That is exactly what Mr Dawson did in the present matter. His evidence as to the noise to which he was exposed was unchallenged and that evidence, combined with the evidence from Drs Fernandes and Macarthur, clearly discharged the onus of proof he carried. The Arbitrator’s acceptance of that evidence discloses no error.”
65.	There is no dispute in this case that the applicant has sustained an injury in the form of a loss of hearing which is of such a nature as to be caused by a gradual process. Nor is there any dispute that the applicant’s employment with the first respondent was an employment to the nature of which the injury was due.
66.	The dispute in this case centres on the question of whether the applicant’s employment with the second respondent was an employment to the nature of which the injury was due. If that question is answered in the affirmative, the second respondent was the last relevant employer and compensation in respect of the injury would be payable by the second respondent. If that question is answered in the negative, it is the first respondent who is liable to pay compensation.
67.	A large part of the dispute arises due to the conflicting evidence as to the nature of the applicant’s employment with the second respondent.
68.	The applicant’s own evidence in this regard is contradictory insofar as the evidence set out in his written statement is different to the history recorded by his own expert, Dr Cope.
69.	The applicant estimated that 95% of his time was spent working in an office which was not noisy. The applicant said he went a noisy site two to three times per year but would only be in the noisy workshop for up to 15 minutes. The applicant wore hearing protection whilst there. The applicant acknowledged attending mining sites but said he spent his time there either in an office or inspecting the mine in a car.
70.	This evidence is at odds with that recorded by Dr Cope. In a table detailing the applicant’s employment history, which was reproduced in each of Dr Cope’s three reports, he recorded that the applicant was exposed to noise from metal fabrication and trucks for one hour per day two to three times per week. Dr Cope recorded that the applicant had to raise his voice generally in order to communicate at a distance of 1 m.
71.	Dr Cope’s account of the nature of the applicant’s employment with the second respondent is not repeated anywhere else in the evidence. It is also somewhat difficult to reconcile with comments made by Dr Cope elsewhere in his reports that the applicant had denied any noise exposure during his employment with the second respondent.
72.	The closest account to that recorded in Dr Cope’s table is that given by Dr Tamhane in his second report. There are, however, differences between Dr Cope and Dr Tamhane’s accounts. In particular, Dr Tamhane recorded that the applicant reported visiting a plant on two to three occasions a week for up to two hours at a time. In other words, Dr Tamhane’s history of noise exposure was approximately double that recorded in Dr Cope’s tables.
73.	Dr Tamhane’s account of what the applicant told him about the nature of his employment set out in his supplementary report is also difficult to reconcile with his first report. In his first report, Dr Tamhane recorded that the applicant’s employment with the second respondent was mainly office-based with only intermittent noise exposure when visiting the factory. The applicant was said to have denied any loud and or continuous noise during this employment.
74.	It is not clear why the more detailed account recorded in the supplementary report was not set out in Dr Tamhane’s first report. Dr Tamhane’s revised opinion also appears to have been influenced by the “additional information” provided to him. That information consists of the abstract of a study into noise exposure of workers in the sheet-metal construction trade.
75.	I am not satisfied, however, that the information contained in that abstract is directly applicable to the applicant’s own employment with the second respondent. The applicant’s evidence consistently indicated that his role was predominantly office-based rather than factory based. The date of the study is also not clearly identified although there is some indication on the document that it dates from August 1975. The applicant was employed by the second respondent between 1994 and 2004. I am not satisfied that the noise levels recorded in the study to which Dr Tamhane was referred can be equated to those on the second respondent’s factory floor during the period of the applicant’s employment.
76.	There is no evidence before me of the actual noise levels on the second respondent’s factory floor.
77.	The first respondent has submitted that the fact that the applicant wore hearing protection in the second respondent’s factory is, of itself, indicative of him being employed in an employment to the nature of which the injury was due.  The evidence before the Commission demonstrates, however, that the duration of exposure to noise is relevant, as is the nature of the noise.
78.	It is significant that both Dr Cope and Dr Tamhane (at least in his initial report) formed the view that, even with the weekly exposure to noise described in their reports, the second respondent was not the last noisy employer.
79.	The history recorded by the expert qualified by the second respondent, Dr Howison, is broadly consistent with the applicant’s statement evidence. It is also arguably more detailed than the histories recorded by either Dr Cope or Dr Tamhane. Dr Howison recorded that 95% of the applicant’s employment was office-based with only intermittent noise exposure when visiting the factory. The applicant was out of his office and exposed to some noise from the factory for less than 5% of the working day. The applicant was only exposed to noise above which he would have to shout to be heard for 1% of that 5% of time out of the office. The applicant described being in the workshop for 10 to 15 minutes, three to four times per year.
80.	The first respondent has submitted that even on Dr Howison’s history, the applicant may have been exposed to noise levels greater than 100 dB, at which level there was potential for hearing loss with less than 15 minutes of exposure. I am not satisfied, however, that Dr Howison did take a history of having to shout to be heard at a distance of 1 m for periods of up to 15 minutes at a time. Rather, Dr Howison recorded that the applicant said that he had to shout for only 1% of the 5% of time during which he was exposed to the noise of the second respondent’s factory and mines.
81.	Dr Howison’s conclusion that the second respondent was not the last noisy employer is consistent with opinion given by Dr Cope and that initially expressed by Dr Tamhane.
82.	Noting the more detailed history, its close alignment with the applicant’s statement evidence, as well as the consistency between Dr Howison’s opinion and that expressed by Dr Cope, I prefer and give greater weight to the views expressed by Dr Howison.
83.	I am not satisfied that the tendencies, incidents or characteristics of the applicant’s employment with the second respondent were of a type to give rise to hearing loss.
84.	I am satisfied that the applicant’s employment with the first respondent was employment to the nature of which his hearing loss injury was due. 
85.	I find that the injury in this case is deemed to have happened on the last day on which the applicant was employed by the first respondent and that the first respondent is liable for any compensation payable in respect of the injury.
86.	The compensation claimed in these proceedings includes lump sum compensation pursuant to s 66 of the 1987 Act. There is, in the materials exchanged between the parties, a medical dispute as to the degree of permanent impairment resulting from the injury. It is appropriate for that dispute to be referred to a Medical Assessor.
87.	There is no dispute between the parties that binaural digital hearing aids are reasonably necessary as a result of the applicant’s injury. There will be an order for the first respondent to pay the costs of supplying and fitting bilateral digital hearing aids pursuant to s 60 of the 1987 Act and the applicable fees order.