Ashley v Ashmore Constructions Pty Ltd - [2006] NSWWCCPD 225

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Ashley v Ashmore Constructions Pty Limited [2006] NSWWCCPD 225
APPELLANT:  Morris James Ashley
RESPONDENT:  Ashmore Constructions Pty Limited
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER:  WCC17016-04
DATE OF ARBITRATOR’S DECISION:          2 May 2005
HEARING:4 August 2006
DATE OF APPEAL DECISION:  12 September 2006
SUBJECT MATTER OF DECISION: Injury: chemical exposure; section 9A of the Workers Compensation Act 1987; conflict in medical opinions; absence of transcript
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
REPRESENTATION:  Appellant:      Carroll & O’Dea, Solicitors
Respondent:    Moray & Agnew, Solicitors

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 2 May 2005 is confirmed.
2. Each party to pay its/his own costs of the appeal.

BACKGROUND TO THE APPEAL

Morris James Ashley (‘the worker’) was a builder and a working director of Ashmore Constructions Pty Limited (‘the employer’). For some years he carried out building work and employed subcontractors in that work as well as performing some of the work himself.
On Sunday 17 June 2001 the worker became ill while walking with his daughter at about 2 p.m. At 11 p.m. he attended Mona Vale Hospital where he was admitted until 19 June 2001. The note of the hospital on admission is as follows:
“History walking dog 1400 this afternoon chest pain constantly and increasing in intensity pain in left arm and numbness pain in left leg pain central left chest worse on examination alert orientated headache nausea saturated oxygen 99% hypertensive and no diaphoresis given anginine ½ ecg attended” (I have to the best of my ability translated the medical abbreviations used in the notes.)
He gave a history that his symptoms had been getting progressively worse throughout the day. He said he had experienced chest pain of a similar nature five years before and had a stress test at that time with no abnormality detected. Since that time he had progressive episodes of chest pain occurring at more frequent intervals.
An exercise test (‘stress test’) was performed on 19 June 2001 at the Hospital and the conclusion reached was “negative stress test no significant change from stress test of 25 3 93”. The worker was the same day discharged from the Hospital and attended his general practitioner, Dr Lee, on Wednesday 20 June 2001. His complaints when he saw that doctor were numbness in both the left arm and leg, headaches and general tiredness. He was referred for a CT scan of the brain which was done the same day and was reported as normal.
On 21 June 2001 the worker attended Dr John Harrington, an associate of Dr Lee. Dr Harrington, in a report of 4 March 2003 says that he thought that it was about that time, that is 21 June 2001, that the worker mentioned some exposure to white ant treatment a week before. The worker, according to Dr Harrington, appeared very anxious and distressed and declared himself unable to work. Dr Harrington records that the worker had been badly affected by a lack of builder’s insurance and had done little work in the preceding months. It should be noted that there are two reports of Dr Harrington dated 4 March 2003, both addressed to the insurer. They are both in evidence. In one of them, however, the statement regarding the lack of builder’s insurance does not appear. Dr Harrington sets out the past history of treatment of the worker, namely hernia in July 2000, shortness of breath in February 2001, insomnia, and depressive symptoms throughout that period. The doctor describes the worker as an anxious person and he had previously treated the worker for endogenous depression and insomnia in 1998. In 1999 he had been treated for pains in the legs of a throbbing type associated with dysasthesiae. He was treated with Aurorix for depression. Dr Harrington expresses the view that these symptoms may have been related to a possible cervical nerve root cause and a CT scan of the cervical spine was organised. This was said to show minor osteophytic encroachment consistent with age and not likely to produce the system complex reported.
It is not clear whether Dr Lee or Dr Harrington next saw him in October 2001 and at that stage he was complaining of extreme hypersensitivity to sunlight which prevented him from working as a builder outdoors. Dr Harrington in his report of 4 March 2003 notes a “suite of symptoms ... with numbness in the left fourth and fifth fingers and ... numbness in the nose ear and face generally”. He was regarded as having a phobia about multiple sclerosis at that time.
The worker was then referred to Dr Polgar, a neurologist. Dr Polgar saw him on 19 November 2001 with a history of numbness and tingling starting in June but worsening in the preceding few weeks. The symptoms had started on the left side but over the preceding few weeks had spread to the right. There was a complaint in the preceding four weeks that the worker’s legs had become very sensitive to sun exposure so that he tended to wear long trousers. There was a complaint of perioral numbness and also numbness over the tips of both ears. There was also a complaint that his hands and feet would at time feel icy-cold which could occur with or without contact with cold materials. Dr Polgar took a history that the worker had been affected by the HIH collapse and had several months without working and had only gone back to work in the preceding 2 or 3 months. He told Dr Polgar that there was arsenic in the treated pine which he used sometimes but that he used a mask when cutting this. He also said that he sprayed some borers under his house two months before which was when his symptoms had already started. The worker was concerned about the possibility of multiple sclerosis since it was mentioned to him by his general practitioner. Dr Polgar could not find any definite objective evidence of neurological disorder and arranged an MRI brain scan. This MRI scan was performed on 19 November 2001 and was reported as normal.
Dr Polgar reviewed the worker on 27 December 2001 when the worker’s symptoms were reported as “40% worse”. Dr Polgar could not pinpoint any significant neurological disorder. He noted that the worker was a very anxious individual and he recommended psychiatric assessment. The worker gave this doctor no history of exposure to a pest control chemical in June 2001.
On 11 January 2002 the worker was seen by Dr Robyn Cosford, a general practitioner with a special interest in multiple chemical sensitivity. She has recorded in a report of 15 May 2002 that the worker gave a history of working on a house site during the week 11 to 15 June 2001 when the area around the house and under the house was treated with Dursban (chlorpyrifos) for termites. Arsenic trioxide was said to have been dusted around the areas where he was working. She obtained a history that he had begun to feel unwell on Saturday 16 June 2001 and subsequently developed acute left-sided paraesthesaie, subjective weakness and left-sided a-typical chest pains. Dr Cosford’s opinion was that the worker’s diagnosis was consistent with acute chlorpyrifos toxicity and subsequent delayed onset neuropathy. Dr Cosford obtained a history that the worker had become chronically fatigued and had developed generalised sensitivity to chemical odours.
A claim for compensation was submitted by the worker to the employer’s insurer on or about 16 January 2002.
The insurer initially accepted liability and payments of compensation were made, however, liability to make further payments of compensation was declined by letter of 7 May 2002 pursuant to the provisions of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).
The worker accordingly commenced proceedings for a determination in the Workers Compensation Commission (‘the Commission’). An Application to Resolve a Dispute No. 9853-2003 was lodged with the Commission on 13 May 2003. These proceedings were struck out at a prior arbitration by consent.
The current proceedings were commenced on 11 November 2004 and there was a hearing before the Arbitrator on 15 March 2005 and 12 April 2005. There is no transcript for the earlier of these days. A determination was made by the Arbitrator in favour of the employer on 2 May 2005 and it is from that determination that an Application for Leave to Appeal Against the Decision of the Arbitrator was lodged on 30 May 2005.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 2 May 2005 records the Arbitrator’s orders as follows:
“1.An award for the respondent in relation to the claim for weekly benefits and medical expenses.”
In a long and detailed statement of reasons the Arbitrator referred to the sworn evidence of the worker and Stephen Brown. The Arbitrator found, despite there being a factual conflict as to this issue, that the worker had some exposure to Dursban in the period 12 to 14 June 2001 at Mr Brown’s premises. She went on to say that it was not possible to reach a further conclusion as to the extent of the exposure and found that there was little evidence to suggest that it was other than for a very short period. The Arbitrator found that the history given to many of the medical practitioners the worker had seen was not correct in that he had suffered some symptoms prior to the alleged exposure to Dursban. Evidence of Dr Harrington (referred to by the Arbitrator as Dr Harrison) was that the worker had previously suffered “dysthesia (sic), throbbing pains in the legs, shortness of breath, ... anxiety and feelings of not being able to complete work ... depression for which medication had been prescribed and insomnia”. The Arbitrator noted that the worker had told the staff at Mona Vale Hospital that he had suffered chest pain for a period of about five years. The Arbitrator regarded the history he gave to certain doctors of no prior symptoms as not correct and undermined the credibility of the opinions based on the acceptance of that history. The Arbitrator also noted that in oral evidence the worker had denied that he had any difficulties with the business arising out of the HIH collapse and she noted the report of his having mentioned this to two medical practitioners, Dr Harrington and Dr Polgar.
The Arbitrator noted that the symptoms on Saturday 16 June 2001 were reported in slightly varying ways. The Arbitrator found that the worker did not experience any symptoms which he attributed to organophosphate poisoning until two days after last exposure and three days after maximum exposure. The Arbitrator also noted the progressive nature of the worker’s symptoms, that is, they became worse over time not better after he was removed from the alleged source of exposure.
The Arbitrator noted the change of opinion in the expert qualified on behalf of the worker, namely Professor Wakefield. She notes that the change in opinion from a possibility to it being more likely than not that he suffered from multiple chemical sensitivity was as a result of the worker’s solicitor’s letter of 1 September 2004 which was not placed before the Arbitrator. For that reason the Arbitrator said that she could not put a great deal of weight on the later expressed view of Professor Wakefield.
A psychiatrist, Dr Gertler, was said to have been of the opinion that the symptoms reported by the worker came from anxiety which was a response to the belief that he suffered multiple chemical sensitivity. The view of Dr Cosford was at variance with this opinion and the Arbitrator felt unable to accept Dr Cosford’s opinion in the light of the psychiatrist’s better qualified opinion, together with the “faulty assumption” of Dr Cosford that the worker had not suffered anxiety symptoms warranting treatment prior to June 2001.
The Arbitrator comments on the history allegedly obtained by Dr Cosford of exposure to Dursban when she first saw him. The report which contains this information is dated 15 May 2002 and the Arbitrator considered it was inconsistent with the worker’s statement to the investigator on 18 January 2002 about his exposure to pest control chemicals.
The Arbitrator was of opinion that the weight of medical opinion, particularly specialist opinion, was that the worker suffered neither multiple chemical sensitivity nor delayed onset neuropathy as a result of acute organophosphate poisoning. The Arbitrator considered that the most thorough analysis of the worker’s symptoms and in particular a chronology was provided by the employer’s qualified expert immunologist, Dr Sutherland, and she accepted that doctor’s view that the symptoms exhibited by the worker were not consistent with acute organophosphate poisoning. The Arbitrator noted the view of Dr Tim Anderson, a consultant occupational physician, in his report of 18 February 2002, that some of the expected symptoms for acute poisoning were “strangely absent”. There was no clinical evidence or evidence on neurological testing that the worker suffered peripheral neuropathy and the Arbitrator accepted the weight of medical opinion that it, that is acute poisoning, is unlikely to exist in the absence of any objective evidence.
The Arbitrator, in conclusion, did not find that the worker suffers any injury and an incapacity to which his employment was a substantial contributing factor. She lists the matters which she has taken into account in reaching this conclusion. They are as follows:
·The inconsistency of Mr Ashley’s symptoms with acute organophosphate poisoning and peripheral neuropathy.
·The chronology of Mr Ashley’s symptoms in relation to the alleged chemical exposure.
·The likelihood that any exposure would have been minimal.
·The existence of the symptoms of which Mr Ashley now complains prior to the alleged exposure.
·The lack of objective neurological and clinical evidence for any neurological impairment.
·The weight of specialist medical opinion in relation to the likelihood of multiple chemical sensitivity.
·The existence of plausible medical opinion, which is consistent with prior history, to explain Mr Ashley’s symptoms otherwise than as a result of chemical exposure.
The Arbitrator was of opinion that the worker had not discharged the onus of demonstrating a sufficiently strong causal connection between his employment and the events of mid June 2001 and the injury he claimed to have sustained, sufficient to satisfy section 9A of the 1987 Act.

ISSUES IN DISPUTE

The grounds of appeal are:
“1.The Commission failed to take into consideration the weight of the medical evidence relied on by the Applicant in the proceedings, including the evidence of the Applicant’s treating doctors.
2.The Commission gave undue weight to the opinion of medical experts qualified on behalf of the Respondent, particularly that of Professor Sutherland.
3.The Commission failed to consider the significant evidence of exposure to chemicals in the workplace.
4.The Commission did not consider the whole of the opinions expressed in the medical evidence when arriving at its decision.
5.The Commission took into consideration irrelevant matters or at least placed too much weight on minor matters when making a decision.
6.The Commission failed to consider or in the alternative failed to place sufficient weight on relevant matters when making its decision.
7.The Commission misapplied section 9A.”
At a teleconference to which reference will be made later, the worker sought to rely on the absence of transcript for the first day of hearing as being an additional ground of appeal.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
I have had regard to Practice Directions Numbers 1 and 6 and the documents that are before me. In the light of missing transcript, I consider that the parties ought be given an opportunity to address this issue and, accordingly, a teleconference was held on 4 August 2006 at which further submissions were made.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Although no amount was awarded by the Arbitrator since there was an award in favour of the respondent employer, the amount at issue on the appeal is clearly in excess of $5,000.00 and all of that amount is at issue on this appeal.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Accordingly, leave to appeal is granted.

FRESH EVIDENCE

‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction Number 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction Number 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
On 17 February 2006 the worker’s solicitors sought leave to rely on a report of Dr Richard Haber dated 8 February 2006. The worker had seen that doctor as a consultant physician in November and December 2005 and February 2006. That doctor professed himself to be competent to comment on the worker’s medical problems but not on toxicology. He obtained a history that current symptoms had persisted since the original exposure in June 2001 and considered that if there had been exposure to Dursban or arsenic trioxide, then it seemed quite possible and probable that the symptoms were due to small fibre neuropathy relating to chemical exposure, most likely Dursban or less likely, arsenic trioxide, or both of these chemicals. The difficulty with the doctor’s opinion is that the history given to that doctor was inaccurate and incomplete and despite the doctor’s protest that he was not competent to comment on toxicology, he appears to have done precisely that. The reason given by the worker’s solicitor for seeking leave is stated to be that Dr Haber was not known to the worker at the time of the arbitration and the opportunity for him to consult Dr Haber for treatment arose only after the arbitration date. The employer objects to the admission into evidence of the report of Dr Haber. It is said that the factual basis of Dr Haber’s opinion is inconsistent with the determination made by the Arbitrator and thus has no substantive value in the proceedings.

My conclusion is that leave ought not be granted to admit fresh evidence, being the report of Dr Haber dated 8 February 2006. In refusing leave I am mindful of the limited support which Dr Haber’s opinion is to the worker in this case. I do not regard his opinion as having any great probative value for the reasons which I have stated, namely a history inconsistent with that of Dr Harrington which was taken contemporaneously, and Dr Haber’s statement that he is not competent to comment on toxicology. Quite obviously, the opinion of another physician could have been obtained prior to the determination by the Arbitrator.

ABSENCE OF TRANSCRIPT

As I have said earlier, there is no transcript in relation to the hearing of 15 March 2005 at which the worker and Stephen Haig Brown gave evidence. Mr Brown was the homeowner at whose house the worker was carrying out work during the week preceding 17 June 2001. Statements from both of these gentlemen were attached to the Application to Resolve a Dispute and I note that the Arbitrator resolved the factual dispute as to whether the worker had been exposed to Dursban in that period in favour of the worker. The worker sought to rely on the absence of transcript as a ground of appeal requiring a re-hearing by the Arbitrator. This was opposed by the employer on the basis that the issues with which the Arbitrator was concerned were primarily medical matters.
It has been held that the absence of a transcript is not fatal to the process of review. However, it is for the Presidential Member to determine whether the review may fairly and properly take place in the absence of such transcript. This is not a case where there is no transcript of the reasons for decision. Indeed, as I have already commented, the reasons given by the Arbitrator are extensive. The absence of transcript has been referred to by Bryson JA in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 as a “serious shortcoming”. He went on to say that:
“... it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s352; and also impedes the conduct of a further appeal under s353. According to circumstances, the absence of a sound recording can clearly readily lead a Presidential member to a decision to require a re-hearing; although that result would not be automatic”.
In that case the absence of transcript was overcome by the Deputy President’s acceptance of a narration made by the solicitor who appeared at the arbitration hearing. At the teleconference to which I have referred, I sought agreement from the solicitors for the parties as to what the missing evidence was. The employer’s solicitor informed me that he was not present at the arbitration but that his counsel appeared uninstructed. He advised me that counsel’s note of the hearing would not assist me. On the part of the solicitor for the worker, I was informed that counsel who had appeared at the hearing had drafted the submissions in support of the application to appeal and those submissions reflected counsel’s view as to the evidence. Nonetheless, the worker sought a fresh hearing.
The question of missing transcript has been considered by Dr Fleming, Deputy President, in a number of cases of which Fraternity Bowling & Recreation Club v Sartor [2004] NSWWCCPD 47 (‘Sartor’) is but an example. In Sartor the Deputy President said the following at [15]:
“The absence of a transcript of the Arbitration may be fatal to the conduct of a fair review on appeal where no written reasons have been provided. The task of the Presidential Member is to ‘review’ the Arbitrator’s decision wherever it is possible to do so, either ‘on the papers’ or after an oral hearing. Where an Arbitrator has erred in making the decision it may not be possible for a Presidential Member to proceed to substitute a new decision (in accordance with section 352 of the 1998 Act) if the evidence of appeal is inadequate. This has frequently occurred because the evidence was not properly filed or given in accordance with the Rules or because it was not properly recorded in the arbitral proceedings. In these circumstances, to grant leave for fresh evidence to be given on appeal can lead to the review becoming a complete second hearing of the dispute (Barbour v BHP Steel Pty Limited [2004] NSWWCC PD 42). This is not the intention of the statutory scheme. The particular circumstances of each case will influence the course of the review.”
In this matter the Arbitrator has given careful reasons for her determination of the matters in dispute. She had before her a statement of the worker dated 18 January 2002 which runs to 22 pages. The Arbitrator also had before her the contemporaneous medical reports in which the worker’s complaints and history are recorded.
The submissions in support of the Application to Appeal Against the Decision of the Arbitrator in part deal with the evidence of the worker as follows:
“The Applicant gave clear evidence in a credible manner of the nature and extent of significant exposure to the application of chemicals on the work site and as to the continuing effects of such applications. Additionally he gave detailed evidence of how he attended the site the day following the application and spent some time in the vicinity of the treated areas. This was the date prior to his complaint of flu-like symptoms and two days prior to his admission to hospital with chest pains, numbness of both arm and leg, vomiting and nausea. The Applicant’s evidence of exposure was corroborated by the owner of the property Mr Brown. The Commission describing the Applicant’s exposure as ‘minimal’ (paragraph 37) is against the evidence before the Commission.”
It is the exposure to chemicals at the work site which has caused me most concern in relation to the absence of transcript. The Arbitrator recorded the conclusions she had come to, namely “the likelihood that any exposure would have been minimal”. The worker claims that the evidence given on the first day of hearing, namely 15 March 2005, was advantageous to his case while, on behalf of the employer, it was submitted that the cross-examination of the worker, which is similarly not available, was of benefit to the employer. I have some doubts whether the evidence of the worker given on 15 March 2005, that is almost four years after the events in question, would have greatly assisted the Arbitrator in determining disputed matters of fact. Rather, I consider that the statement made by the worker some seven months after the event, and the contemporaneous medical reports, would give a greater indication of where the truth lies in this matter.
Having regard to the grounds of appeal in this matter, which primarily requires a close examination of the medical evidence, I am of opinion that the absence of transcript for the first day of hearing does not prevent this appeal from being conducted, nor does it require a re-hearing.

EVIDENCE AND SUBMISSIONS

I have already set out the grounds of appeal in paragraph 23. Taking these in order, the first relates to the alleged failure of the Arbitrator to take into consideration the weight of the medical evidence relied on by the worker in the proceedings, including the evidence of the worker’s treating doctors. The medical reports relied on are listed and they are as follows:
(a) Dr Robert Lee (GP) – 23 September 2002;
(b) Dr Yiannikas (neurologist) – 16 June 2003;
(c)Dr Mark Burns (occupational physician) – 3 June 2002, 24 June 2002 and 15 October 2003;
(d)Dr John Harrington (GP) – 4 March 2003;
(e)Dr Mark Donohue (GP with an interest in toxic exposure) – 28 August 2002; and
(f)Dr Robyn Cosford (GP with an interest in toxic exposure) – 15 May 2002, 6 March 2003 and 19 February 2004.
The worker relied on other medical reports and material as follows:
(g)Mona Vale Hospital Emergency Department Clinical Record – 17 June 2001;
(h)Dr Robert Gertler (psychiatrist) – 26 March 2004; and
(i)Professor Denis Wakefield (Director of Immunology) – 5 July 2004 and 13 September 2004.
It should be noted that the worker did not rely on the three reports of a treating doctor, Dr Polgar who is a neurologist, and the employer put these reports into evidence.
The Arbitrator in paragraph 20 of her reasons for decision deals with the worker’s medical evidence. All of the reports which are relied on by the worker are referred to by the Arbitrator.
It is perhaps convenient to deal with the second and fourth grounds of appeal under this heading also. The worker’s submissions quote selectively from the opinions of those doctors who support his claim. The opinions of the employer’s doctors are also selectively quoted and various criticisms are made of those opinions.
The worker submits that the Arbitrator took into consideration irrelevant matters when making her decision. These matters appear to be the worker’s appearance when seen by various doctors and his evidence about the effect of the HIH collapse on him. A complaint is made about the Arbitrator’s conclusion that Dr Cosford’s report of 15 May 2002 implied that she took a history of June exposure to Dursban when she first saw the worker. The worker’s evidence was said to have been that it was first suggested to him by Dr Cosford that his symptoms might be consistent with exposure to chemicals.
It is submitted that there was sufficient evidence before the Arbitrator to discharge the onus of proof in respect of injury, incapacity and causation.
It is submitted in connection with the application of section 9A of the 1987 Act that the Arbitrator failed to consider the overwhelming evidence of significant exposure to chemicals in the workplace and that the worker’s employment was a significant contributing factor to the injury. It is submitted that the Arbitrator erred in concluding that the exposure was so minimal as to be not significant. A further complaint is made that the Arbitrator erred in applying the test of “substantial contributing factor” to the worker’s incapacity (paragraph 37).
The response of the employer to the worker’s submissions is briefly that:
(a) There is no error of law, fact or discretion in the Arbitrator’s decision.
(b) There was logically probative evidence relevant to the facts in issue.
(c)The alleged errors on the part of the Arbitrator are matters of discretionary judgment which should only be interfered with where it is manifestly obvious that the discretion has miscarried. In that connection Rohloff v Diacut Pty Limited (In Liq.) [2005] NSWWCCPD 17 is relied on. Reference is made to the matters enumerated in House v The King (1936) 55 CLR 499 at 504-505, namely 1) acting on a wrong legal principle; 2) allowing irrelevant considerations to influence the decision; 3) making a material mistake as to the facts; and 4) failing to take into account relevant material considerations.
(d)It is further submitted that the Arbitrator was entitled to prefer the medical evidence relied on by the employer.
(e)It is submitted that the Arbitrator gave sufficient and detailed reasons for preferring the employer’s medical evidence.
(f)It is said that the Arbitrator correctly determined that any alleged exposure to an organophosphate compound would have been for a short period and would have led to minimal absorption of the chemical. This is said to be the effect of the evidence of Dr Anderson.
(g)The employer makes the point that the primary thrust of the worker’s submissions is that the Arbitrator erred in accepting the employer’s evidence over that of the worker.

DISCUSSION AND FINDINGS

Grounds 1, 2 and 4

It is clear that the Arbitrator carefully considered the entirety of the medical evidence. She did, it is true, prefer the evidence relied on by the employer. Some of that medical evidence was from treating specialists and not from doctors specifically retained on behalf of the employer. I am not persuaded that the Arbitrator erred in preferring that evidence which did not support his claim of injury by exposure to Dursban rather than evidence which did. It is not necessary I think to deal with each medical report in detail, however I consider the Arbitrator did not err in discounting the opinions of certain of the worker’s doctors on the basis of an incorrect history obtained. The correct history appears to me to come from the report of Dr Harrington which I have referred in paragraph 5, together with the histories given to Dr Polgar (paragraphs 7 and 8).
In relation to the opinion of Professor Wakefield, the Arbitrator discounted this on the basis of a change of opinion in response to a letter from the worker’s solicitors. I have referred to this in paragraph 17. I am not persuaded that the Arbitrator erred in this regard.

Ground 3

The Arbitrator determined that the worker’s exposure to Dursban would have been minimal. The evidence of the worker obtained on 15 March 2005 may have borne on this issue and, accordingly, I am prepared to make the assumption that his evidence was that his exposure to Dursban was substantial. Nonetheless, this does not mean that the worker has established that he suffered an injury in the course of his employment and that that employment was a substantial contributing factor to such injury.

Ground 5

As to the effect on the worker of the HIH collapse, I am prepared to assume that the worker’s evidence on 15 March 2005 also dealt with this matter. Nonetheless, there are recorded by two separate doctors’ histories to the contrary and, in my opinion, the Arbitrator was entitled to accept what was recorded by those doctors in their reports.
As to the complaint that Dr Cosford’s report did not imply that she took a history of June exposure when she first saw the worker, it is clear from the worker’s statement of 18 January 2002, paragraphs 68 and 69, that the suggestion that the worker’s medical problems stem from chemical exposure came from Dr Cosford. It is not clear when Dr Cosford was given a history of exposure to Dursban. She refers only to the initial consultation of 11 January 2002. It is clear however that she saw the worker on a number of occasions thereafter. I do not think that a great deal turns on this matter, nor on the fact that the Arbitrator made reference to it in her reasons. This ground of appeal is not, in my opinion, made out.

Ground 6

It is submitted on behalf of the worker that there was sufficient evidence to discharge the onus of proof which he bore in respect of injury, incapacity and causation. There was some evidence, however, and it was for the Arbitrator to weigh all of the evidence and decide which evidence she preferred. I am not persuaded that the Arbitrator erred in accepting the evidence proffered on behalf of the employer which included some of the reports of treating doctors.

Ground 7

The last matter is the application by the Arbitrator of section 9A of the 1987 Act. A complaint is made about the statement in paragraph 37 by the Arbitrator which is as follows:
“I did not find that Mr Ashley suffers and (sic) injury and incapacity to which his employment is a substantial contributing factor. ...”
In the next paragraph the Arbitrator says the following:
“Weighing all of these matters, as required by the authorities set out above, I have to conclude that Mr Ashley has not discharged the onus of demonstrating a sufficiently strong causal connection between his employment and the events of mid June 2001 and the injury he has claimed to have sustained, sufficient to satisfy section 9A of the Worker’s Compensation Act (sic).”
It is true that the Arbitrator has misstated in paragraph 37 of her reasons the effect which section 9A has. The section is only relevant in determining whether employment is a substantial contributing factor to an injury not an incapacity. The Arbitrator has corrected herself in the following paragraph and I am not persuaded that the earlier reference to injury and incapacity is other than a slip. I do not consider that the Arbitrator has misdirected herself as to the meaning to be given to section 9A.
I think that the correct approach in this matter would be firstly to have asked whether there had been an injury within the meaning of section 4 of the 1987 Act and, if it is determined there had been an injury, then to address the requirements of section 9A. Were it necessary for me to decide the matter afresh, I consider that a finding of “no injury” would be justified on the evidence in this case. I have particular regard to the absence of any history given by the worker of the onset of symptoms following exposure to Dursban until he saw Dr Cosford. I discount Dr Harrington’s vague reference to the worker having given him a history on 21 June 2001 of exposure to white ant treatment a week before. The report which contains this reference is dated 4 March 2003 and it is remarkable, if such a history had been taken, that it was not communicated to a specialist, Dr Polgar, whom the worker later saw. I note the words used by Dr Harrington namely “I believe it was about this time ...”. If Dr Harrington had a record of this in his notes, I would have expected greater certainty in his statement of this. Such a suggestion is also inconsistent with the worker’s own statement of 18 January 2002.
The grounds of appeal relied upon by the worker are not made out and the decision of the Arbitrator is confirmed.

DECISION

The decision of the Arbitrator dated 2 May 2005 is confirmed.

COSTS

Although the worker’s appeal has failed, I do not think it is appropriate to make an order that the worker pay the appeal costs of the employer. Each party is to pay its/his own costs of the appeal.

Anthony Candy
Acting Deputy President
12 September 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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