A man who was medically boarded with hearing damage from being exposed to loud noise during his 39 years of work on the mines is entitled to compensation under the Compensation for Occupational Injuries and Diseases Act (COIDA), reports GroundUp.
Two Gauteng High Court judges overturned a rejection of his compensation application by a tribunal established under the Act to consider such claims.
Writing in GroundUp, Tania Broughton reported that Andre Knoetze started his mining career in 1980 as an apprentice fitter and turner. He worked his way up in the ranks and was promoted to foreman in 2006. Throughout his career he worked with and around noisy heavy machinery both above and below ground.
In early 2019, aged 59, he had a mandatory hearing assessment and was diagnosed as suffering from moderate bilateral sensorineural hearing loss. He was deemed permanently unfit for his normal duties due to an “occupational specific” condition: Noise-Induced Hearing Loss (NIHL). He was forced to retire.
Knoetze submitted a claim for compensation with Rand Mutual Assurance, which is licensed in terms of the Act to assess and make payment of claims for occupational injuries and diseases in the mining sector.
His claim was repudiated. He lodged an objection, which was also rejected by the tribunal set up by Rand, mainly because Knoetze had not proved a direct link between his hearing loss and workplace noise. The tribunal deemed his hearing loss to be “atypical”, because of its rapid deterioration.
He appealed against this outcome in the Johannesburg High Court.
Read the judgment
Judge Avrielle Maier-Frawley, with Judge Thifhelimbilu Mudau concurring, ruled that the tribunal had not properly considered the evidence. And it had been wrong in not applying provisions of the Act that shifted the onus of the burden of proof on to Rand to prove that the hearing loss had not resulted from his work environment, but from other external factors.
In the ruling Maier-Frawley said Knoetze had put up sufficient evidence to prove his claim, which had seemingly been ignored by the tribunal, wrote Broughton in GroundUp.
Beyond that, hearing loss as a result of noise was listed in the Act, which provided for a presumption that the one caused the other. This meant that it was up to Rand Mutual Assistance to prove otherwise.
“The presumption operates in favour of the employee if he establishes that he contracted a listed disease and performed work mentioned in the schedule in respect of that disease, that is that work that exposed him to noise.
“If so, it is presumed that the disease arose out of his or her course of employment, unless the contrary is proved,” she said.
This, Maier-Frawey said, was in keeping with the spirit of the Act and best promoted employees’ constitutional rights to social security.
“It alleviates the imbalance of power between large employer organisations and individual employees, who more than often lack the resources or the knowledge to prove that their occupational diseases were caused by their employment.
“This would generally require further costly expert testimony and specific information in the hands of the employer, who might not always be willing to part with it,” she said.
Turning to the evidence during the hearing before the tribunal, she said Knoetze had said he was exposed to very loud, excessive noise on a daily basis because he was required to maintain and repair heavy duty machinery. It was so loud, he said, it was impossible to hear what a person standing right next to him was saying.
The mine safety inspector had corroborated this, and had said various machines had labels indicating their noise level to be above 85 decibels.
Knoetze had been consistent, there were no other events in his life where he had been exposed to noise, and hearing loss did not run in his family, the judge said.
Two medical experts testified that his symptoms were consistent with hearing loss caused by exposure to loud noise in the workplace.
But Rand’s expert insisted that his condition was “atypical” and could have been caused by other factors.
The judge said Knoetze’s evidence had not been disputed. “Stated plainly, the tribunal failed to assess the undisputed and unrefuted but relevant factual evidence at all, as it ought properly to have done. The factual evidence was supported by medical opinion.” This was sufficient to prove that his hearing loss did not arise outside his employment.
The judge said Rand’s expert had also not refuted the factual evidence and had not put up any literature to support the speculative notion that Noise Induced Hearing Loss was a gradual, not a rapid, hearing impairment.
She said while courts were not entitled to interfere with the tribunal’s evidential assessments on appeal, there had been no proper assessment in this matter.
She upheld the appeal, ordered that Knoetze was entitled to compensation, and referred the matter back to the tribunal to determine the amount.
GroundUp article – Court orders compensation for miner with hearing loss (Creative Commons Licence)
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