Alcoa of Australia Limited v Blay
[2015] WADC 62
•27 MAY 2015
ALCOA OF AUSTRALIA LIMITED -v- BLAY [2015] WADC 62
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 62 | |
| Case No: | APP:31/2014 | 11 FEBRUARY 2015 | |
| Coram: | SLEIGHT DCJ | 27/05/15 | |
| PERTH | |||
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | ALCOA OF AUSTRALIA LIMITED WARREN JOHN BLAY |
Catchwords: | Appeal Issue of law Arbitrator took into account more than one medical expert in a particular area of practice Whether expert's opinion based upon proven factual material Whether appellant taken by surprise on issue of causation Adequacy of reasons Whether arbitrator wrongly refused leave to allow appellant to call further expert Whether arbitrator failed to take into account evidence of occupational hygienist |
Legislation: | Workers' Compensation and Injury Management Act 1981 Workers' Compensation and Injuries Management Arbitration Rules 2011 |
Case References: | Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Beer v Duracraft Pty Ltd [2004] WASCA 192 BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 House v The Queen [1936] HCA 40; (1936) 55 CLR 499 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 Pollock v Wellington (1996) 15 WAR 1 Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
WARREN JOHN BLAY
Respondent
Catchwords:
Appeal - Issue of law - Arbitrator took into account more than one medical expert in a particular area of practice - Whether expert's opinion based upon proven factual material - Whether appellant taken by surprise on issue of causation - Adequacy of reasons - Whether arbitrator wrongly refused leave to allow appellant to call further expert - Whether arbitrator failed to take into account evidence of occupational hygienist
Legislation:
Workers' Compensation and Injury Management Act 1981
Workers' Compensation and Injuries Management Arbitration Rules 2011
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr D R Clyne
Respondent : Mr H Papenfus
Solicitors:
Appellant : Harman Legal Pty Ltd
Respondent : Shine Lawyers
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Beer v Duracraft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580
House v The Queen [1936] HCA 40; (1936) 55 CLR 499
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Pollock v Wellington (1996) 15 WAR 1
Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54
Wilson v Metaxas [1989] WAR 285
1 SLEIGHT DCJ: This is an application for leave to appeal to the District Court against a decision of Arbitrator Rutherford, who on 18 February 2014 ordered that the appellant, Alcoa Australia Ltd (Alcoa) pay to Mr Warren Blay the sum of $9,175.23 pursuant to cl 17, cl 18 and cl 19 of Sch 1 of the Workers' Compensation and Injury Management Act 1981 (the Act). The essential complaint on this appeal by Alcoa is that it was denied a fair hearing by the arbitrator.
Background
2 Mr Blay was employed as a machinist by Alcoa at Alcoa's refinery for a period of approximately 10 years when he developed a lung condition in the form of a respiratory infection. Mr Blay stopped work and about 10 months after the condition developed he made a workers' compensation claim. Initially the claim was for weekly payments of compensation from November 2011, together with payment of various statutory allowances. Mr Blay subsequently withdrew his claim for weekly payments of compensation and the sole remaining claim was a claim for statutory allowances of approximately $10,000.
3 The contention of Mr Blay was that his lung condition was a form of asthma which was a compensable injury within the meaning of the Act. Mr Blay relied upon the definition of an injury in s 5(1) of the Act which relevantly provides:
(c) a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree;
4 Mr Blay contends that the disease was caused or aggravated by him inhaling caustic fumes and/or bushfire smoke at his workplace on or about 15 December 2009.
5 Alcoa accepts that Mr Blay developed a respiratory disease but disputes the nature of the disease and that it was the result of the inhalation of caustic fumes and/or bushfire smoke on or about 15 December 2009. Alcoa contends that Mr Blay suffered a non-atopic disease and this did not constitute an injury as defined in the Act. Accordingly, the central issue in dispute is the issue of the nature and causation of the lung disease suffered by Mr Blay.
6 The dispute was not able to be resolved at conciliation and the matter progressed to arbitration before Arbitrator Rutherford in August 2013.
7 Mr Blay primarily relied upon a medical opinion from Dr Bucens in relation to the nature and causation of his disease and Alcoa relied upon a report of Dr McGrath. Both doctors were respiratory specialists.
8 The critical finding of the arbitrator was that Mr Blay suffered a reactive airways dysfunction syndrome (RADS), a disease contracted by him in the course of his employment with Alcoa in that his illness was caused by work-related inhalation of either caustic fumes or bushfire smoke or both.
9 On the hearing of the appeal, the oral submissions of counsel for Alcoa primarily focused on three issues.
(a) Whether the arbitrator wrongfully took into account the opinions of two treating specialists, Dr Prichard and Professor Thompson, on the issue of causation;
(b) Whether the arbitrator wrongfully, at an interlocutory stage, dismissed an application by solicitors acting for Alcoa to rely on a report of Dr Roger Drew Ph.D., consultant toxicologist; and
(c) Whether the arbitrator wrongfully took into account that the disease suffered by Mr Blay might have been caused by bushfire smoke inhalation at the refinery when Mr Blay's claim was based upon inhalation of caustic fumes at the refinery.
Scheme of the Act
10 Relevant to the grounds of appeal in this matter is the nature of the arbitration proceedings conducted under the Act and the legislative scheme for workers' compensation claims. The purposes of the Act are set out in the legislation which include to 'make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick' [s 3(d) of the Act].
11 Consistent with this stated purpose, s 188 of the Act provides that an arbitrator is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply [s 188(2)(a) of the Act]; and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms [s 188(2)(b) of the Act]. However, the arbitrator is bound by rules of natural justice except to the extent that the Act authorises, whether expressly or by implication, a departure from those rules [s 188(1) of the Act].
12 On the issue of causation of an injury, the Act sets out relevant considerations. Section 5(5) of the Act states:
(5) In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account —
(a) the duration of the employment; and
(b) the nature of, and particular tasks involved in, the employment; and
(c) the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and
(d) the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and
(e) matters affecting the worker's health generally; and
(f) activities of the worker not related to the employment.
13 The right to appeal against a decision of an arbitrator is restricted by the provisions of the Act. Section 247(1) provides that a party to a dispute may, with leave of the District Court, apply to the District Court against an arbitrator's decision after written reasons are given.
(a) Question of law
14 The District Court is not to grant leave in a matter such as this where the amount in dispute is more than $5,000 and the appellant challenges the full amount of the award made unless a question of law is involved (s 247(2)(a)(ii) of the Act). A decision will not involve an error of a question of law simply because an arbitrator has made a wrong finding of fact: Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356. This means that there is no error in law just because the arbitrator preferred one version of the evidence to another or one set of inferences to another: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250. An appeal 'involving a question of law' extends to questions of mixed fact and law. So, if some question of law is involved, the whole of the decision under appeal is open to review and not just a question of law: Pacific Industrial Co v Jakovljevic [2008] WASCA 60. As to whether a question is one of law or fact, in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Mason CJ stated at 355 – 356 (excluding authorities cited):
The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from the facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.
15 However, there is no error of law simply in making a wrong finding of fact. So long as the inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning: Australian Broadcasting Tribunal v Bond at 356.
(b) Leave required
16 If there is a question of law involved, leave will be given, if in all the circumstances of the case, it is in the interests of justice that leave be given: BHP Billiton Iron Ore Pty Ltd v Brady [20].
17 The grant of leave to appeal lies in the discretion of the court. In general it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that a substantial injustice will be done by leaving the decision unreversed. The requirement that a substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be, and remain, a broad discretion to grant or withhold leave. What is a substantial injustice must depend on all the circumstances of the case: Wilson v Metaxas [1989] WAR 285 at 294 per Malcolm CJ.
(c) Nature of appeal (review)
18 If leave is given, then under s 247(5) of the Act, the appeal is to be 'by way of a review' of the decision. By s 247(7) the court may affirm, vary or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance.
19 The hearing is not de novo. The appeal judge does not start with a blank page, but with a formal decision, and that unless the 'review' persuades the judge that the order being reviewed should be altered or discharged, it should stand: Pacific Industrial Co v Jakovljevic per Wheeler JA (with whom Pullin JA and Buss JA agreed) at [20]; Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 586.
20 When credibility issues are involved the judge conducting the review should respect the dominant position the arbitrator was in and be reluctant to interfere with any credibility findings: Boston Clothing Co Pty Ltd v Margaronis at 584.
Factual findings by the arbitrator
21 The learned arbitrator made the following factual findings:
1. Mr Blay did not suffer from a respiratory condition before December 2009 and was generally in good health [131].1 There were no hereditary factors which may otherwise explain Mr Blay's respiratory illness. For years he was able to work at Alcoa performing broadly the same tasks as he was performing in December 2009 without incident. His illness was caused by something other than his normal day to day working and living conditions [165].2
2. On 15 December 2009 Mr Blay inhaled an amount of caustic vapour, sufficient in quantity to at least catch him by surprise and to have him stop work, at least initially [120].3
3. In early December 2009, there was a bushfire in the Pinjarra area as a result of a CALM burn off. Between 14 December 2009 and 21 December 2009 smoke resulting from the bushfire entered the refinery and workshop in Pinjarra where Mr Blay was working [136] and [141].4
4. The smoke from the bushfire was at its most intense in or around the period of 14 and 15 December 2009 [155].5 The smoke was sufficiently thick to cause Alcoa to issue a notice to the workforce about safety and health measurers [142] and [148].6
5. The smoke was not prevalent at Mr Blay's place of residence due to the presence of the sea breeze [145].7
6. Mr Blay inhaled smoke at work on either or both 14 and 15 December 2009 [154].8
7. Mr Blay felt unwell on the evening of 15 December 2009 and felt more unwell as time progressed. The next day he was rostered off work. His symptoms worsened and he tried to see a doctor on 17 December 2009 but was unable to see his doctor until 18 December 2009 [124].9 Thereafter Mr Blay saw his doctor and Alcoa medical staff on a number of occasions, with his lung function deteriorating [125].10
8. Between 23 December 2009 and 17 November 2011 Mr Blay was certified unfit to return to work [132].11
9. Mr Blay's employment was terminated on 17 November 2011 [133].12
Grounds of appeal
22 The full grounds of appeal against the decision of the arbitrator are as follows:
1. The arbitrator erred in law in relying on the medical evidence of Dr Michael Prichard in coming to his decision on the issue of causation in that the evidence was not properly before him, he having refused to admit it into evidence.
2. The arbitrator erred in law in relying on the reports of Dr Prichard in that the factual basis for the opinions expressed by him had not been established by primary evidence and in any event those factual bases were contrary to the facts as found by the arbitrator.
3. The appellant was denied procedural fairness by the reliance of the arbitrator on the medical reports of Dr Prichard and Professor Thompson, when the appellant was led to believe that there would be no such reliance, or alternatively, the reliance by the arbitrator on the medical reports of Dr Prichard and Professor Thompson was contrary to r 59 of the Workers' Compensation and Injury Management Arbitration Rules 2011.
4. The arbitrator erred in law in failing to make sufficient findings and give sufficient reasons for his conclusion that the respondent's (applicant's) symptoms and medical condition after December 2009 were due, in whole or in part, to exposure to bushfire smoke as there was no evidence, or any adequate evidence, to support the arbitrator's finding.
5. The arbitrator erred in law in failing to make sufficient findings and give sufficient reasons for his conclusion that Mr Blay's symptoms were due, in whole or in part, to exposure to caustic.
6. The arbitrator erred in law in failing to make sufficient findings and sufficient reasons for not accepting the evidence of Dr McGrath that Mr Blay's symptoms and disabilities after December 2009 were due to non-atopic adult onset asthma.
7. The arbitrator misapplied the principles enunciated in Beer v Duracraft Pty Ltd [2004] WASCA 192 and Pollock v Wellington (1996) 15 WAR 1 and failed to give adequate reasons or otherwise explain why he preferred the expert medical opinion of Dr Bucens to that of Dr McGrath.
8. The arbitrator erred in law in finding, on the basis of 'common-sense', that the Mr Blay's recovery on previous occasions from pulmonary infections suggested an agent other than a virus was causative, when it was a view not expressed by any of the medical practitioners and was contrary to the medical opinion of Dr McGrath.
9. The arbitrator misconstrued the evidence in relation to the appellant's work practice when he found that it was likely, as a matter of common sense, that a tag fell off the pump on which the respondent claimed he worked on, when the evidence of Mr Nel was that the appellant's business practice was to apply two tags to each pump entering the workplace and there was no evidence led that a tag had fallen off.
10. The arbitrator took into account irrelevant considerations in excluding the expert opinion of Dr Drew at an interlocutory stage, when Dr Drew's evidence would have materially affected the final outcome in relation to the nature and extent of any exposure to caustic.
11. The arbitrator erred in excluding the evidence of Mr Turner, and such evidence would have materially affected the final outcome in relation to the nature and extent of any exposure to caustic.
Grounds 1 and 3
23 It is convenient that I deal with these grounds of appeal together. They concern the use by the arbitrator of reports from Dr Prichard and Professor Thompson.
24 Rule 59 of the Workers' Compensation and Injuries Management Arbitration Rules 2011 (the Rules) relevantlyprovides:
(1) Except with the leave of an arbitrator, in any proceeding —
(a) a medical report by a medical practitioner in a particular area of medical practice may not be lodged or admitted in evidence on behalf of a party to a proceeding if another medical report by another medical practitioner in that area of medical practice has been lodged or admitted in evidence on behalf of that party; and
(b) ...
(2) …
(3) …
(4) This rule does not affect the lodging or admission in evidence of a medical report required to be obtained because —
(a) …
(b) a worker attends a general medical practice and is seen by more than one medical practitioner in that same practice from time to time.
Mr Harman: Look, I think both sides – well I can't speak for Mr Hall [counsel for Mr Blay] but I notice in his letter of brief and certainly in our brief to Dr McGrath those reports were provided as background material for the provision of their medico-legal advice and to that extent those documents are obviously relevant to – potentially relevant to their advices but I would have thought, sir, that the ultimate – in determining any question of causation that the decision would be based on Dr Bucens' report and Dr McGrath's report certainly at this stage.
Arbitrator Rutherford: Yes. Well, that's certainly how the case has proceeded and I agree with that.
Mr Harman: Yes.
Arbitrator Rutherford: What I do is as I do with other cases if there's any desire to include any further evidence by way of documents whether it's medical or otherwise parties confer, absence of conferral interlocutory application and I will deal with it then.
Mr Harman: Yes.
26 The arbitration commenced on 13 August 2013. At the commencement of the arbitration, counsel for Mr Blay sought leave to rely upon two reports of Dr Prichard, being a report dated 2 September 2011 and a report dated 27 May 2011. These were not medico-legal reports but reports to various doctors. Counsel for Mr Blay also sought leave to rely upon a report of Dr Summers dated 4 November 2011. The applications were dismissed by the arbitrator on the grounds that the material was filed outside the time limits prescribed by the Rules and the respondent was potentially prejudiced [AB 842-844]. Further, in relation to the report of Dr Summers, the arbitrator found that that there were already medical reports by a medical practitioner in the same area of medical practice and it would be unfair for leave to be given under r 59 of theRules.
27 A book of documents prepared by the solicitors for Mr Blay was tendered as an exhibit at the arbitration by counsel appearing for Mr Blay without objection. The book of documents tendered by Mr Blay's solicitors included the following:
(a) Reports of Dr Prichard dated 18 March 2010 and 23 November 2010 [AB 176 – 178].
(b) A report of Dr Bucens dated 16 September 2011 [AB 179].
- (c) Reports of Professor Thompson dated 7 April 2010, 12 May 2010, 15 July 2010 and 25 August 2010 [AB 197–199, 205–206]. All of these reports were addressed to Mr Blay's treating general practitioner. There were also related hospital records.
28 Counsel for Alcoa also tendered a book of documents in the hearing before the arbitrator. The book of documents included a report of Dr McGrath, thoracic physician, dated 12 June 2011. Also included in the book of documents was a copy of the brief sent to Dr McGrath seeking his opinion on various matters. The brief included a covering letter dated 4 March 2011 and also included medical reports of Dr Prichard to Mr Blay's treating general practitioner dated 11 February 2010, 24 February 2010, 18 March 2010 and 23 November 2010. The letter also enclosed reports of Professor Thompson dated 7 April 2010, 12 May 2010 and 15 July 2010 and related hospital records.
29 In the course of submissions at the commencement of the trial, counsel for Alcoa explained the inclusion of the reports of Dr Prichard in the book of documents of Alcoa as follows [AB 832]:
Mr Harman: The point was in terms of the reliance for the issue of causation in this matter, Alcoa was relying upon Dr McGrath and the applicant was relying upon Dr Bucens and in terms of other – the reports of Dr Prichard that had been filed – these had been filed because they were documents that Dr McGrath had relied upon to come to his opinion and so in reading Dr McGrath's report, it's obviously useful to be able to refer to that documentation. That is the basis on which we file those documents, because they form part of the brief.
We didn't file Dr Prichard's documents on the basis that we were relying upon his opinion, but obviously to the extent that any data and any notes Dr Prichard made or relied upon by Dr McGrath to form his opinion so that fairness dictates that those documents be filed. We certainly haven't agreed that Dr Prichard's opinion should form the basis of any decision of the Tribunal.
30 The letter from Alcoa's solicitors to Dr McGrath dated 4 March 2011 lists the reports of Dr Prichard without giving any instruction as to how they are to be used. In the letter of instruction, further reference was made to the reports as follows [AB 329]:
Professor Thompson in his report dated 7 April 2010 stated that Mr Blay 'appears to have very hyperreactive airways with eosinophilia and appears to have a neurogenic based asthma'. In the first paragraph of that report he indicates that Mr Blay was 'perfectly well till December last year and eight months ago he was competing in triathlons'. Further in the second and third paragraph of that report he states that 'in early December, a large forest fire near Collie led to large amounts of smoke being blown to Mandurah and Perth. He was enveloped in this and there was significant soot and ash in his environment. Within 12-24 hours of this he developed symptoms.
Dr Prichard in his most recent report dated 23 November 2010, addressed to Dr Izak Nel, records that Mr Blay 'told me that his respiratory symptoms started after caustic exposure about two weeks prior to the bushfire smoke inhalation and he saw his GP three or four days prior to the smoke inhalation regarding sick leave for that purpose. Most of the caustic exposure occurred in the main workshop which was next to the liquor burning section of the refinery. His job involved operating a machine lathe repairing a shaft for impellors for the liquor pumps. The shaft was removed by drilling into the centre of the pump, which resulted in three or 4L of caustic liquor escaping from the pump and vaporizing on contact with hot metal. This produced a pungent smell, not unlike ammonia, which was associated with retrosternal irritation and upper respiratory irritation, as well as a cough. On one occasion he had to splash water on his face to wash off the caustic material. He had similar exposure on multiple occasions up to twice a day over an extended period'.
We note that Dr Prichard's report of 23 November 2010 records a change in history in relation to a cause of this worker's respiratory illness compared to that recorded in the earlier reports of both Dr Prichard and Professor Thompson.
32 The arbitrator in his written reasons referred to the reports of Dr Prichard dated 11 February 2010, 24 February 2010, 18 March 2010 and 23 November 2010 [AB 790, AB 808]. All of these reports were included in the books of documents tendered by the parties.
33 A critical issue at the hearing of the arbitration was the reliability of the account given by Mr Blay as to the sequence of events and whether his respiratory illness arose at a time when he says he was subjected to a 'good whiff' of caustic fumes and also subjected to the inhalation of bushfire smoke. Counsel for Alcoa relied upon inconsistencies between accounts given by Mr Blay to various treating doctors including Dr Prichard and Professor Thompson. Mr Blay was cross-examined at length by counsel for Alcoa concerning these inconsistencies.
34 By way of an introductory comment, the arbitrator in his decision [167] and [168]13 stated that Mr Blay relied on the reports from Dr Bucens, Dr Prichard and Professor Thompson and that Alcoa relied upon the report of Dr McGrath. Thereafter in his decision, when dealing with the issue of causation, he made no specific mention or relied upon the reports of Professor Thompson. This is not surprising because the reports of Professor Thompson contain no expressions of opinion about causation and only provide a description of the instructions received from Mr Blay, a description of Mr Blay's symptoms and the treatment prescribed.
35 In relation to the reports of Dr Prichard, the arbitrator went beyond simply examining what Dr Prichard had been told by Mr Blay, or a description of Mr Blay's symptoms and the treatment prescribed. The arbitrator stated as follows:
175. To the above and his earlier reports, I observe the following:
(a) Mr Prichard observes that both smoke and caustic have low molecular weight;
(b) Mr Prichard first attributes Mr Blay's illness to smoke inhalation;
(c) Mr Prichard then attributes the illness to a combination of smoke inhalation and caustic inhalation;
(d) The earlier caustic inhalation caused a mostly non-productive cough;
(e) The later smoke inhalation caused wheeze and chest tightness;
- (f) He refers to a number of alleged inhalation occasions;
(g) He refers to one caustic inhalation where he had to wash caustic off his face;
(h) There was a two week gap between the smoke inhalation and the caustic inhalation.
- 176. In his oral evidence, Mr Blay stated that the caustic inhalation and smoke exposure was on the same day and I have found that was the case. He did wash caustic off his face in that he said he splashed water on his face after the alleged caustic inhalation. In his oral evidence, he made no reference to earlier caustic vapour inhalations.
177. It is clear from this analysis that the chronology of events upon which Mr Prichard bases his opinion is not entirely correct. On that basis, Mr Prichard's opinion will be accorded less weight than otherwise would be the case, in that the certainty of his opinion is open to challenge.
37 The arbitrator then referred to passages of Mr McGrath's report. Mr McGrath concluded that Mr Blay had suffered an adult onset of non-atopic asthma and that the likely cause of this was community-acquired pneumonia. In other words he concluded that Mr Blay's illness was not work-related. In reaching this conclusion Mr McGrath concluded that the workers' exposure history was not consistent with the classical description for RADS because there was 'no discrete episode of overwhelming exposure'.
38 However the arbitrator rejected Mr McGrath's opinion because it was based upon a conclusion that there was no discrete episode of overwhelming exposure which was contrary to the factual findings made by the arbitrator that Mr Blay had inhaled an amount of caustic vapour sufficient in quantity to at least take Mr Blay by surprise and have him stop work.
39 The arbitrator went on to conclude as follows:
202. Mr McGrath's description of 'RADS' is consistent with that of Dr Bucens and Dr Prichard. There is no doubt that Mr McGrath's opinion is the most thorough of the medical experts and he has carefully examined the possible causes for Mr Blay's condition. However, I do not accept his opinion that Mr Blay's condition is not RADS, given that the pre-conditions for such a syndrome are met on the facts as found.
203. In particular, the symptoms were immediate or occurred soon after the event. The condition did arise from an exposure to low-molecular weight material. There is evidence of exposure to gas in very high concentration in that I find the reference to a 'good whiff' and the immediate effect on Mr Blay to be sufficient to persuade me, on a common sense basis, that he inhaled a higher than usual concentration of caustic vapour or gas.
204. I am satisfied that the facts as found correlate more with a finding of RADS than the other differential diagnoses.
205. I accept Dr Bucens' opinion that Mr Blay has RADS given the facts upon which he bases his opinion, which are a reasonably close match to the facts as found.
206. In particular but not limited to this factor, I note Mr Bucens bases his opinion that Mr Blay developed RADS on Mr Blay developing symptoms 'the next day' after the inhalation (and bush fire smoke). There is a close correlation between that assumed fact and the facts as found.
207. In addition, there is some support for Mr Bucen's opinion from Mr Prichard.
208. Further, all doctors seem to consider that RADS could have been caused by smoke inhalation, to the extent that Mr McGrath does not exclude that possibility. It is unclear whether smoke inhalation by itself led to RADS, or caustic inhalation, or both. In my view, based on all the medical evidence before me, both appear relevant and both are work related events. Both inhalation events occurred in the workplace. I am satisfied and find that even if the smoke inhalation was the sole or another cause of RADS, the inhalation occurred in the workplace and that is sufficient, in my view, to find that RADS, a disease, was contracted in the course of Mr Blay's employment. It is also clear that the caustic inhalation was in the course of Mr Blay's employment.
209. I have further taken into account the s 5(5) factors which suggests at least that something out of the usual work and living conditions occurred. Further, given the way in which Mr Blay describes what occurred, which I have accepted, common sense informs me that it is more likely than not that the inhalation of caustic fumes or smoke, or combined, are so temporally linked to Mr Blay's first symptoms that these events were the cause of the respiratory illness, especially given Mr Blay's prior good health.
210. In saying that, I have not discounted the possibility that Mr Blay simply contracted a viral complaint; however, Mr Blay has over the years previously contracted influenza and has recovered on each occasion within a few days. I infer from that Mr Blay is ordinarily sufficiently well to combat community acquired illnesses. That he did not do so on this occasion suggests to me that some other agent is relevant. The inhalation of smoke and/or caustic satisfies me on a common sense basis that it was these matters which led to Mr Blay's long term illness.
211. I find that in relation to both smoke and caustic inhalation that Mr Blay's employment was a contributing factor to the onset of RADS and contributed to a significant degree, for the reasons expressed herein.
212. I say so even if there were or could have been other causes contributing to the respiratory illness, such as a viral complaint, given that the Act does not require a worker to prove that the work related cause was the only cause; employment need only be a significant cause.
40 In relation to the evidence of reports of Professor Thompson, I am satisfied that no error of law occurred. The arbitrator did not make use of the reports of Professor Thompson other than to provide a clinical history and this was the basis upon which both Mr Blay and Alcoa had included the reports of Professor Thompson in the tendered books of documents.
41 In relation to the reports of Dr Prichard, I am satisfied that the arbitrator made an error in law in that he used the opinion of Dr Prichard contained in Dr Prichard's report of 23 November 2010 in relation to the issue of causation when the arbitrator had led counsel for Alcoa, by the exchange on 26 February 2013, to believe that the reports of Dr Prichard would not be used on the question of causation. Also I accept that as Dr Prichard's opinion contained in the report dated 23 November 2010 was an opinion of a treating specialist in the same area as Dr Bucens, leave of the arbitrator was required under r 59 before reliance could be made upon the report. No such leave was obtained.
42 It is worth noting that the arbitrator was not properly assisted by counsel for Alcoa to prevent such an error occurring. Those portions of Dr Prichards' reports which contained opinions on the issue of causation ought to have been redacted from the reports tendered as part of the books of documents. This would have avoided any confusion. Further, Mr Harman, counsel for Alcoa, in his closing submissions to the arbitrator created further confusion by making reference to the opinions expressed by Dr Prichard as to causation when making submissions relating to inconsistencies of Mr Blay's description of when he was exposed to bushfire smoke inhalation. Mr Harman stated as follows [AB 1197]:
The next issue is the referral to Dr Prichard and its Dr Prichard who first diagnoses RADS. There's no evidence that Dr Prichard has had the benefit of the contemporaneous medical centre notes to assist him in coming to that diagnosis, so we don't know what Mr Prichard has received to come to that diagnosis, which is – sets her diagnosis based upon - which includes a single large exposure to (indistinct) irritant as (indistinct) Dr Bucens.
43 Having concluded that the arbitrator wrongly took into account the opinions given by Dr Prichard on the issue of causation, I conclude that leave should be given on grounds 1 and 3 in relation to the use of the reports of Dr Prichard by the arbitrator.
44 The next question is whether on review what orders should be made.
45 Having reviewed the evidence presented and the decision of the arbitrator, I conclude that even if the arbitrator had ignored the opinions of Dr Prichard the arbitrator would have reached the same conclusion on the question of causation of Mr Blay's respiratory disease. I reach this conclusion for the following reasons:
(a) The arbitrator expressly stated that Dr Prichard's opinion was based upon incorrect information and should be given less weight.
(b) The arbitrator rejected the opinion of Dr McGrath, the expert relied upon by Alcoa, because Dr McGrath's conclusions were not consistent with the arbitrator's factual findings concerning the extent and occasions when Mr Blay was exposed to caustic vapour and/or bushfire smoke. The rejection of Dr McGrath's conclusions was not based upon any expressed preference for the opinion of Dr Prichard.
(c) The arbitrator found that he accepted Dr Bucens' opinion as to the nature of the disease suffered by Mr Blay and its causes because Dr Bucens' opinion was founded on factual matters which were reasonably close to the facts as found by the arbitrator.
(d) The use of Dr Prichard's opinion was very limited, the arbitrator simply observing after having found that he accepted Dr Bucens' opinion that the opinion also coincided with that of Dr Prichard.
46 Applying the principles of a review as set out earlier in this decision, I am not persuaded that the decision should be altered on the basis of these grounds of appeal and accordingly these grounds of appeal are dismissed.
Ground 2
47 This ground of appeal relates to a contention that the opinions of Dr Prichard were based upon factual material that had not been established on the evidence.
48 Alcoa presented no submissions in relation to this ground of appeal in its written submissions or in its oral submissions at the appeal hearing. Further, the ground of appeal is superfluous given my conclusion on grounds 1 and 3 that the arbitrator had wrongly taken into account the opinions expressed by Dr Prichard but that the opinions of Dr Prichard would have made no difference to the ultimate outcome of the decision.
49 I conclude that the ground of appeal has no merit. Accordingly leave should be refused and the ground of appeal dismissed.
Ground 4
50 The appellant contends in its written submissions in support of this ground of appeal is to the effect that it was not open as a question of law for the arbitrator to find that the bushfire smoke was a possible cause of Mr Blay's injuries, when none of the doctors expressly gave an opinion to this effect. I understand this submission to be a question of law because it is contended that there is no evidence to otherwise support such a conclusion.
51 Neither Dr Bucens nor Dr McGrath expressed an opinion that the inhalation of bushfire smoke on 14 or 15 December 2009 was causative of Mr Blay's respiratory illness. However, neither medical expert expressly excluded the possibility of smoke inhalation either caused or contributed to Mr Blay's respiratory illness. Dr McGrath in his report of 12 June 2012 expressly refers to 'environmental smoke inhalation' as a possible cause of Mr Blay's respiratory disease. In providing a provisional diagnosis he stated as follows:
Adult onset non-atopic asthma – multi-factorial precipitants potentially include: viral bronchitis/bronchiolitis (inflammation of both large and small respiratory lines), infective bronchopneumonia, environmental smoke inhalation, extra-oesophageal reflux disease.
52 Dr Bucens stated that one of the criteria for the diagnosis of RADS included exposure to smoke with irritant qualities that are present in very high concentrations.
53 Further, on the basis of the factual findings made by the arbitrator, there was a coincidence between the smoke inhalation described by Mr Blay in his evidence and the occurrence of first symptoms.
54 On the basis of the above, I conclude there was evidence available to the arbitrator to make the finding that smoke inhalation caused or aggravated Mr Blay's respiratory illness.
55 Ground 4 of appeal metamorphosed on the hearing of the appeal to be primarily a contention that the appellant had not prepared a case to meet an allegation that bushfire smoke was causative of Mr Blay's condition. In reliance upon this submission, counsel for Alcoa referred to the application of Mr Blay filed in the arbitration proceedings. The application for arbitration was lodged by Mr Blay's solicitor on 5 April 2012. This application stated that the date of injury was 17 December 2009 and described the nature and circumstances of injury as follows:
Worker has sustained a lung condition due to inhaling caustic fumes while performing his normal work duties.
56 Alcoa also relies upon the fact that the report of Dr Bucens does not expressly state that the lung disease was caused by the inhalation of smoke.
57 I reject the contention that Alcoa had not prepared a case to meet an allegation that bushfire smoke was causative of Mr Blay's injury. I reach this conclusion for the following reasons:
(a) The granting of relief or redress under the Act is not necessarily restricted to the specific claim made, nor to the subject matter of the claim (s 189(1) of the Act).
(b) The first medical certificate lodged by Mr Blay alerted Alcoa that Mr Blay contended that his condition was contributed to by bushfire smoke. The first medical certificate was dated 10 October 2010 and described how the injury occurred as 'inhaled caustic fumes also smoke inhalation during the same time due to burn off'.
(c) The witness statements of Mr Blay, filed by his solicitors in the arbitration proceedings, contained references by Mr Blay of being exposed to the inhalation of bushfire smoke at the time of his alleged injury. Further, the book of documents filed by Mr Blay's solicitors also included a written bushfire smoke health warning issued by Alcoa's occupational hygienist.
(d) The written opening submissions to the arbitrator filed by Mr Blay's solicitors on 6 August 2013 stated at par 2.5 and par 2.6 as follows:
2.5 The worker intends alleging that on Tuesday, 15 December 2009:
2.5.1. He was at work in the operations workshop;
2.5.2. He was removing the shaft from an impeller in a pump;
2.5.3. To do that work he was using a horizontal boring machine;
2.5.4. In the process of undertaking network he inhaled caustic fumes which caused a respiratory disease, alternatively, an aggravation of a respiratory disease.
2.6. The worker further intends alleging that during December 2009 and at work the worker inhaled smoke which caused a respiratory disease, alternatively, an aggravation of a respiratory disease. [AB 769]
6.5. Two distinct events occurred at the Respondent's refinery during December 2009:
6.5.1. The worker inhaled caustic vapour while operating a boring machine; and
6.5.2. The worker inhaled bushfire smoke. [AB 773]
- (e) Alcoa's written opening submissions acknowledged that it was aware the claim by Mr Blay included a claim that a contributing cause of Mr Blay's condition was exposure to bushfire at his place of work. The submissions stated as follows [AB 778]:
20. Ms Marcy Gosby was, at the relevant time, the Alcoa workers compensation officer. The evidence of Ms Marcy Gosby intended to refute the allegations made by the Applicant in his Witness Statement and Supplementary Witness Statement in relation to:
(a) the nature of the bushfire smoke alleged to have been causative of his respiratory illness – –
(f) Counsel for Alcoa extensively cross-examined Mr Blay concerning inconsistencies in his evidence and what he had told doctors about when he had been exposed to the inhalation of bushfire smoke.
(g) Counsel for Alcoa in his closing submissions acknowledged that the inhalation of bushfire smoke was an issue [AB 1195] and extensively addressed the arbitrator concerning the issue.
59 For the above reasons, I conclude that the ground of appeal has no merit. Accordingly leave should be refused and the ground of appeal dismissed.
Ground 5
60 This ground of appeal concerns a contention by Alcoa that the arbitrator failed to make sufficient findings and give sufficient reasons for his conclusion that Mr Blay's respiratory disease was caused or contributed to by the exposure to caustic fumes.
61 I reject this ground of appeal. Critical to the arbitrator's decision was his acceptance of Mr Blay's credibility and his acceptance of Mr Blay's evidence that, on 15 December 2009, Mr Blay inhaled a sufficient quantity of vapour to catch him by surprise. It was this finding that led the arbitrator to reject the opinions of Dr McGrath as to the nature and causes of Mr Blay's illness. Further, the arbitrator's factual findings led him to the conclusion that he should accept the opinion of Dr Bucens because his opinion was based on assumed facts that closely correlated to the factual findings made by the arbitrator.
62 For the above reasons, I conclude that the ground of appeal has no merit. Accordingly leave should be refused and the ground of appeal dismissed.
Ground 6
63 This ground relates to a contention by Alcoa that the arbitrator failed to give adequate reasons for rejecting the evidence of Dr McGrath. In my opinion, the arbitrator gave sufficient reasons for rejecting the opinion of Dr McGrath that Mr Blay's illness was non-atopic asthma. The arbitrator's reasons were tied to the factual findings that Mr Blay had inhaled a significant quantity of caustic fumes and bushfire smoke coinciding with the appearance of his symptoms. In my opinion the arbitrator provided adequate reasons for rejecting the evidence of Dr McGrath. I conclude that the ground of appeal has no merit. Accordingly leave should be refused and the ground of appeal dismissed.
Ground 7
64 This ground of appeal contends that the arbitrator misapplied principles of law concerning expert evidence and failed to give adequate reasons for preferring the opinion of Dr Bucens over Dr McGrath.
65 In support of these grounds the appellant contends the arbitrator failed to properly take into account the principles contained in the decisions of Pollock v Wellington (1996) 15 WAR 1 and Beer v Duracraft Pty Ltd [2004] WASCA 192.
66 In Pollock v Wellington a fundamental principle of expert evidence was stated by Anderson J as follows (excluding authorities cited) at [3]:
Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts.
As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it.
67 In Beer v Duracraft McLure J (as she then was) stated as follows at [80]:
In this case, as with the majority of cases involving medical expert evidence, the relevant history supplied by the claimant provides the factual foundation for the statement of expert opinion. In many cases there is not an exact correlation between the facts proven in evidence and the facts relied upon by the medical practitioner upon which his or her opinion is based. The role of the decision maker is to examine any variation between the two in order to assess whether any unproven fact relied on by the medical practitioner or any omission from the material given to him or her renders the opinion inadmissible or of no weight.
68 In my opinion the arbitrator in reaching his decision followed these principles. Critical to his decision were findings as to Mr Blay's credibility and findings of fact that have not been challenged on appeal, namely:
(a) Mr Blay did not suffer from a respiratory condition before December 2009;
(b) On 15 December 2009, Mr Blay inhaled an amount of caustic vapour, sufficient in quantity to catch him by surprise and have him stop work, at least initially; and
(c) Mr Blay inhaled smoke at work on either or both 14 or 15 December 2009.
69 Dr Bucens in his report dated 16 September 2011 stated:
In the absence of a past history of asthma, the differential diagnosis comprises of RADS or non-immunologically provoked occupational asthma.
Although he probably has had a low level exposure to caustic soda fumes over some years, the symptom onset followed a heavy exposure to caustic soda vapour on or about 17/12/2009. This is characteristic of RADS as is the relatively poor response to a very intensive asthma therapy after exposure to the work environment was stopped.
- He fulfils the criteria for the diagnosis of RADS, namely:
· Absence of previous respiratory complaints.
· The onset of symptoms should occur after a single specific exposure.
· The exposure should be a gas, smoke, fume or vapour with irritant qualities that was present in very high concentration.
· The onset of symptoms should occur within 24 hours of exposure and should persist for at least three months
· The symptoms should simulate asthma with cough, wheezing and dyspnoea
· Pulmonary function tests may or may not show any flow limitation.
· Methacholine (or other) bronchial challenge should be positive.
- · Other types of pulmonary disease should be ruled out.
- I, therefore, consider that Mr Blay's 'injuries' are more likely than not due to the workplace accident on the 17/12/2009. [AB 180-181]
71 Although I give leave to appeal on ground 7 for the reasons given above, the appeal is dismissed.
Ground 8
72 This ground of appeal is based upon a contention by Alcoa that it was not open for the arbitrator to conclude that Mr Blay had, over previous years, contracted viral complaints and recovered within a few days and use that finding to infer that the condition suffered by Mr Blay in or after December 2009 was not caused by a virus. It is submitted that such a finding was not open as it was not a view expressed in any of the medical evidence and was contrary to the only evidence relating to viral acquired non-atopic asthma, being that of Dr McGrath.
73 In my opinion, the ground misconstrues the reasoning of the arbitrator. The arbitrator did not rely solely upon the evidence of Mr Blay that he had recovered from previous viral complaints to reach the conclusion that he ought to reject the opinion of Dr McGrath that the illness suffered by Mr Blay was a non-atopic asthma. There was a concatenation of factors taken into account by the arbitrator, including the arbitrator's findings of a temporal link between the occurrence of the disease and the episodes of inhalation of caustic fumes and bushfire smoke.
74 I conclude that the ground of appeal has no merit. Accordingly leave should be refused and the ground of appeal dismissed.
Ground 9
75 The contention of Alcoa on this ground of appeal is that the arbitrator wrongly concluded that Mr Blay was working on a pump on 15 December 2009 from which caustic fumes escaped. It is contended that this was against the evidence and the arbitrator wrongly ignored evidence which suggested that Mr Blay was not working on the pump he described in his evidence. In my opinion, this is purely a factual matter and leave is refused and the ground is dismissed.
Ground 10
76 This ground relates to an interlocutory ruling made by the arbitrator not to permit Alcoa to lodge a report of Dr Drew (toxicologist) dated 14 June 2012 out of time.
77 Rule 29 of the Rules provide that the respondent to an arbitration application must lodge any document it seeks to rely upon at the time it files its reply to the application. Rule 30 sets out the procedure for seeking leave to file material out of time. Rule 30 provides:
(1) In any proceeding, any document, material or information not lodged within the time limits prescribed in these rules must not be adduced in evidence in the proceeding by any party to the proceeding without first obtaining the leave of the arbitrator.
(2) An arbitrator must not give leave unless —
(a) no other party is prejudiced by the relevant document, material or information being adduced in evidence; or
(b) in any event, the other parties consent to it being adduced; or
(c) in the opinion of the arbitrator it is required to be admitted in evidence in the proceeding in the interests of justice.
27. Pursuant to s 3 of the Act, the purposes of the Act include 'to provide for the resolution of disputes under this Act'; and 'to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick'.
28. I have no doubt that it will take some effort to obtain a suitably qualified and experienced toxicologist who is not only able to provide a report but is ready to and willing to do so. Undoubtedly it also will be at some cost to the worker.
29. In that context, I am not satisfied that the purposes of the Act will be met by the inclusion of Dr Drew's report. In particular, it's inclusion does not lend to the dispute being run in a manner which is 'economical, informal and quick'.
30. The respondent has already filed expert medical opinion and the expert has provided commentary and observations based on various supposition of fact. There are also factual matters in dispute which need to be determined.
31. Dr Drew's report is in part inadmissible in that he appears to draw conclusions of fact, not opinion. In any event, I do not believe it is in the interests of justice in this case to have matters where the worker is obliged to respond to a further expert report which unnecessarily adds to the costs of the resolution of this dispute.
32. On that basis, and in the exercise of my general discretion as to the admission of documents, I consider on balance and in the interests of justice, the correct decision is to dismiss the application. [AB 1261–1262]
79 Alcoa contends that the arbitrator ought to have allowed the report because it went directly to a relevant issue as to the nature and extent of the exposure to caustic fumes which was a critical issue in the arbitration. The report of Dr Drew was to the effect that, in his opinion because Mr Blay had not complained of nose, throat or eye irritation at the time of his exposure to caustic fumes, Mr Blay was not exposed to caustic fumes to the extent required to cause a lung disability. Dr Drew concluded that it was most likely that Mr Blay's condition was a pulmonary infection as diagnosed by Dr McGrath [AB 1242–3].
80 As mentioned above, the arbitrator acknowledged that the report was relevant. However, the question of relevance is not the only criterion. The need for leave to adduce late material evidence is part of a mechanism to achieve the purposes of the Act to resolve matters fairly, justly, economically, informally and quickly (s 3(d) of the Act).
81 It has not been contended that the arbitrator made any error of principle in reaching his decision. The decision was a discretionary decision. The well-known principles enunciated in House v The Queen [1936] HCA 40; (1936) 55 CLR 499 are applicable. It must appear that some error has been made in exercising the discretion. If the judicial officer acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his decision should be reviewed. Alternatively, if it appears upon the facts that it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion even though the error may not be discoverable.
82 In my opinion no express or implied error has been demonstrated. The arbitrator took into account all relevant considerations and it was quite proper for him to exercise the discretion in the way he did. Even without the complication of introducing a further expert report from Alcoa, the hearing still took four days and there was voluminous material tendered. In my opinion the arbitrator was, in the exercise of his discretion, quite entitled to reject the application.
83 I conclude that this ground of appeal has no merit. Accordingly leave should be refused and the ground of appeal dismissed.
Ground 11
84 This ground of appeal contends that the arbitrator failed to take into account the evidence of a Mr Turner, who is alleged by Alcoa to have given relevant evidence to the issue of causation.
85 Mr Turner is an occupational hygienist employed by Alcoa. Mr Turner's duties include coordinating an occupational hygiene programme within the refinery.
86 Mr Turner's evidence included a description of a system of monitoring caustic mist levels in the Alcoa refinery but it is not in dispute that there was no monitoring on 15 December 2009 at the location where Mr Blay stated in his evidence that he had inhaled a 'good whiff' of caustic vapour and which the arbitrator found was 'sufficient in quantity to at least catch him (Mr Blay) by surprise and to have him stop work, at least, initially'.
87 In addition to evidence concerning the monitoring generally of mist levels in the refinery, Mr Turner also gave evidence that Alcoa had conducted epidemiological studies of its work-force. In his original witness statement at [52] Mr Turner stated as follows:
I am not aware of any chronic health concerns from caustic exposure. Alcoa has a longitudinal epidemiological study of its workforce called 'Healthwise'. It is conducted by independent epidemiologists in Western Australia and Victoria and respiratory specialists, such as Professor Bill Musk. In relation to asthma, the Healthwise study has found no relationship between working at Alcoa and asthma. [AB 276]
88 The arbitrator in his decision stated as follow:
34. As I understand his case, Mr Blay is contending that the inhalation of caustic was not from any source other than the 'good whiff'.
35. I set this out as in his written statement dated 28 November 2011, Mr Blay refers to other alleged inhalation occurrences in the refinery during a period of time before December 2009. Neither in opening nor in closing did Mr Blay's counsel seek to rely on such matters as relevant to the cause of his illness.
36. Further, likely in response to the more general allegations of inhalation of caustic or other chemicals as set out in that statement, Alcoa gave evidence of the results of testing of caustic in the general atmosphere in the refinery, essentially to the effect that the caustic content was minimal. However, as Mr Blay does not now complain that his illness was caused by caustic inhalation in the general atmosphere in the refinery or other then [sic] the 'good whiff', the relevance of that evidence, predominately given by Alcoa's occupational hygienist Mr Stephen Turner, falls away.
37. In any event, there was no evidence of any specific testing for caustic vapour in the atmosphere in or about the area in which Mr Blay worked, particularly when a machinist was removing shafts from impellers. Such general evidence therefore, as it relates to the alleged inhalation of a 'good whiff' from a single event, is of little relevance.
89 Alcoa submits that the arbitrator failed to take into account the evidence of Mr Turner of the lack of correlation found in its epidemiological studies between caustic exposure and asthma and that this constituted an error in law. It is submitted that this ought to have been taken into account as a relevant consideration under s 5(5)(c) of the Act which relevantly provides that the arbitrator should take into account the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment.
90 Alcoa included in its lodged book of documents two epidemiological reports of studies conducted by Professor A W Musk and others and funded by Alcoa. Both studies examined the correlation between exposure to caustic mist and lung disease in the general atmosphere of alumina refineries but did not consider the issue of whether a significant exposure above the general exposure might cause lung disease. Further, in both reports there were acknowledgements that there was some evidence of correlation between exposure to caustic vapour and lung disease. The first report stated as follows:
Workplace exposures within some of the process groups in these three refineries were associated with work related upper and lower respiratory symptoms, consistent with known exposure to irritants such as caustic mist and particulates. These symptoms were associated with deficits in lung function with an obstructive pattern in those subjects with work related shortness of breath, wheeze, and chest tightness. These findings suggest that exposures at work are responsible for both the symptoms and impaired lung function, or alternatively, that subjects with lower levels of lung function are more likely to experience symptoms. [AB 728]
91 The second report stated as follows:
No loss of lung function with exposure to caustic mist has been demonstrated in this study. There are case reports of obstructive lung injury associated with the acute or chronic exposure to probably high concentrations of caustic mist. [AB 734]
92 It is clear from these reports that a correlation between asthma and caustic vapour is not excluded. To the contrary, the reports contain some acknowledgement that there can be a correlation between lung dysfunction and caustic vapours. This is also consistent with the medical evidence that was presented to the arbitrator.
93 In my opinion, the ground of appeal is wrongly based upon the contention that the arbitrator excluded the evidence of Mr Turner. This is not the case. The arbitrator did not exclude consideration of the evidence of Mr Turner but concluded that because it did not relate to the complaint of Mr Blay that he had experienced a 'good whiff ' of the caustic vapour, but rather to questions of general exposure to caustic mist in the workplace, its relevance 'fell away'. In my opinion it was open on the evidence before the arbitrator for the arbitrator to so conclude.
94 It should also be taken into account that in any event, under s 213(4)(c) and s 213(4)(d) of the Act, the reasons for the arbitrator's decision need not canvass all the evidence given in the case and need not canvass all the factual and legal arguments or issues arising in the case. Insofar as the arbitrator did not refer specifically to the epidemiological studies, no error has been established.
95 For the above reasons, I conclude that the ground of appeal has no merit. Accordingly leave should be refused and the ground of appeal dismissed.
Conclusion
96 For the above reasons, each of the grounds of appeal is dismissed.
1 [131] of the arbitrator's decision
2 [165] of the arbitrator's decision
3 [120] of the arbitrator's decision
4 [136] and [141] of the arbitrator's decision
5 [155] of the arbitrator's decision
6 [142] and [148] of the arbitrator's decision
7 [145] of the arbitrator's decision
8 [154] of the arbitrator's decision
9 [124] of the arbitrator's decision
10 [125] of the arbitrator's decision
11 [132] of the arbitrator's decision
12 [133] of the arbitrator's decision
13 [167] and [168] of the arbitrator's decision
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