Bloomfield v Liebherr Australia Pty Ltd
[2007] WASCA 154
•20 JULY 2007
BLOOMFIELD -v- LIEBHERR AUSTRALIA PTY LTD [2007] WASCA 154
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 154 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:81/2006 | 9 MARCH 2007 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 20/07/07 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ERIC WAYNE BLOOMFIELD LIEBHERR AUSTRALIA PTY LTD |
Catchwords: | Workers' compensation Determination of degree of disability Whether Review Officer or Compensation Magistrate misdirected themselves as to the law Turns on own facts |
Legislation: | Supreme Court Act 1935 (WA), s 59 Workers' Compensation and Rehabilitation Act 1981 (WA), s 93E(10), s 25, s 84ZN(2), s 84ZW |
Case References: | BHP Billiton Ltd v Gomes [2007] WASCA 140 Casserly v Alcoa of Australia Ltd [2006] WASCA 150 Eclipse Resources v Jarrad Reeves, unreported; CM-42/04; 13 September 2004 Girrawheen Tavern v Josephs [2003] WASCA 244 Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130 Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BLOOMFIELD -v- LIEBHERR AUSTRALIA PTY LTD [2007] WASCA 154 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
LIEBHERR AUSTRALIA PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATES COURT
Coram : MS P M HOGAN CM
File No : CM 129 of 2005
Catchwords:
Workers' compensation - Determination of degree of disability - Whether Review Officer or Compensation Magistrate misdirected themselves as to the law - Turns on own facts
(Page 2)
Legislation:
Supreme Court Act 1935 (WA), s 59
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93E(10), s 25, s 84ZN(2), s 84ZW
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R I Viner QC & Mr C L Phillips
Respondent : Mr D R Clyne
Solicitors:
Appellant : Chris Phillips
Respondent : Crisp Civitella Smith
Case(s) referred to in judgment(s):
BHP Billiton Ltd v Gomes [2007] WASCA 140
Casserly v Alcoa of Australia Ltd [2006] WASCA 150
Eclipse Resources v Jarrad Reeves, unreported; CM-42/04; 13 September 2004
Girrawheen Tavern v Josephs [2003] WASCA 244
Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
(Page 3)
1 STEYTLER P: I have had the advantage of reading the judgment of Pullin JA. It is consequently unnecessary for me to repeat the detail of the circumstances giving rise to this appeal.
2 The appellant lodged three Form 22 referrals under the Workers' Compensation and Rehabilitation Act 1981 (WA) ("Act"), as it was then known. These claimed that he had sustained permanent work-related disabilities. Two of the forms described these as "mental function" (by which he meant loss of mental function), skin disorder and fatigue. The third described these as "mental function", skin disorder, fatigue and "psychiatric impairment (depression)". The respondent denied the existence of these disabilities. In the alternative it said that, if the disabilities (or any of them) existed, they were neither permanent nor work-related.
3 The dispute was referred to a Review Officer. She was obliged to consider a good deal of conflicting medical evidence. Some of it was to the effect that the appellant suffered from the asserted disabilities, that they were permanent and that they were consistent with lead poisoning (a condition that would probably have been work-related because the appellant had been required to work with toxins, including lead, lead chromate and solvents). Other medical evidence was to the effect that, to the extent that the appellant suffered from the alleged disabilities, they were related to causes other than the toxins with which he had worked. For example, it was suggested that the depression suffered by the appellant was not work-related and that this, in turn, could have given rise to symptoms that were consistent with encephalopathy (a condition induced by lead poisoning), such as loss of mental function and fatigue. A cause other than toxicity was also suggested as having brought about the appellant's skin disorder. These doctors suggested that, if the conditions suffered by the appellant were not a product of the toxins ingested by him, they were unlikely to be permanent.
4 The Review Officer considered all of the evidence, including the conflicting medical evidence. She said (at [197]) that the worker had not only to prove "what his condition is", but also "that he has a permanent disability relating to the alleged over-exposure to toxins". She recognised (at least in part) that she was required only to assess the condition of the appellant as regards his degree of permanent disability and that she was not required to consider the issue of causation: BHP Billiton Ltd v Gomes [2007] WASCA 140. However, she said (also at [197]) that, in this case, the allegations made by the appellant about his condition were "inextricably linked with causal factors". She appears to have meant by
(Page 4)
- this that the general tenor of the medical evidence accepted by her was to the effect that, if the appellant's condition was not caused by over-exposure to toxins, it was unlikely to be permanent and that this had the consequence that she was required to decide whether they were or were not caused by over-exposure to toxins, even though that question partly overlapped the question of whether they were work-related.
5 The Review Officer was not satisfied that the appellant suffered from a toxic-related condition (encephalopathy) or "any other permanent cerebral dysfunction", which phrase, as I understand her reasons, includes loss of mental function and depression ([206] of her reasons). Before arriving at that conclusion, she identified those doctors whose evidence she rejected and those whose evidence she preferred in this respect: see, for example, [195], [198] [201] - [204] of her reasons. In the course of doing so, she appeared to accept the evidence (amongst others) of two doctors, Dr Kim Fong and Dr Peter McCarthy, who suggested that depression, arising from relationship problems, might explain the appellant's symptoms. Neither of them regarded the appellant of having any permanent disability at all. Dr Fong said, in his report dated 11 August 2003, that the appellant's complaints were "related to reversible factors" and that he had not sustained any permanent incapacity. In his report dated 9 August 2004 he suggested that the appellant should be assisted with "stress and mood management, and to try and shift some of his maladaptive patterns of thinking". In a letter dated 8 January 2005, Dr McCarthy said:
"Mr Bloomfield, when I saw him earlier in 2004 was suffering from minor depressive symptoms best described as a Depressive Disorder Not Otherwise Specified. He is currently not receiving or seeking any form of psychiatric or psychological treatment. His symptoms have improved and I do not believe he is currently suffering from any significant psychiatric disorder."
6 It seems to me, from an analysis of her reasons, that the Review Officer accepted that the appellant might have suffered from depression but found that, if he did, this was ascribable to causes other than over-exposure to toxins and, hence, was not permanent. She plainly understood that the depression was one of the disabilities relied upon by the appellant and that she was required to assess whether or not it was permanent. She said, in this context (at [203]), that the appellant's relationship problems had had a significant emotional impact on him. She went on to say:
(Page 5)
- "This, in itself, according to my assessment of the evidence, as substantiated by a number of medical practitioners including Dr Fong and Dr McCarthy, provides a possible alternative medical condition, namely, anxiety and depression, which may explain the worker's symptoms."
7 Because there was no suggestion that this form of depression was permanent (Dr Fong and Dr McCarthy concluded that it was not), and because she rejected the alternative of symptoms brought about by toxic poisoning, the Review Officer must have concluded that, to the extent that the appellant suffered from depression (and consequent fatigue), that disability was not permanent. It is against this background and for these reasons that, as I read her judgment, she concluded (at [206]) that the appellant did not suffer "from a toxic related condition, namely, encephalopathy, nor any other permanent cerebral dysfunction" (my emphasis).
8 The Review Officer also referred to, and seemingly accepted, the evidence of a dermatologist, Dr Kurt Gebauer, that the appellant's skin condition was unrelated to toxic substances and was consequently not permanent. Conflicting evidence had been given in this respect by Dr Moira Somers, a general practitioner, who considered that there was a connection between the toxicity and what she referred to as a skin rash and that the condition was permanent. However, her evidence in that regard (and in other respects) appears to have been rejected by the Review Officer (at [202]) because "her qualifications as a general practitioner [were] not as high as those of the specialists who [had] provided reports". Evidence had also been given in this respect by Dr David Joyce, a physician specialising in clinical pharmacology and toxicology, who said that he had never previously encountered, or heard of, any association between skin itching and toxins of a kind to which the appellant had been exposed. He was unsure whether "intermittent itching of [the appellant's] left forearm (without skin rash)" represented "a disability of any nature" but said that "perhaps it could be acknowledged as impairing quality of life by a percent or two".
9 Given that the Review Officer commented unfavourably on Dr Somers' qualifications when compared with those of the specialists who had provided reports, and given also that she referred, with apparent approval, expressly to the opinion of Dr Gebauer (one of the specialists who had provided reports) in the concluding paragraphs of her reasons, it seems to me that what was said by her necessarily involved an acceptance of his evidence and a rejection of that of Dr Somers.
(Page 6)
10 The appellant appealed to a Compensation Magistrate. There were five grounds of appeal. The first was to the effect that the Review Officer had erred in law in failing to ask whether, on the balance of probabilities, the appellant's workplace exposure to toxins had materially contributed to his depression and other symptoms. The other grounds of appeal are not presently material (save that it is important to note that none of these dealt with any failure to address the issue of permanence, other than ground 5, which contended only that the Review Officer should have ignored as irrelevant some of the evidence that had been relied upon by her).
11 In the course of dismissing ground 1 (and the other grounds of appeal), the Compensation Magistrate said (at [19]) that the first hurdle for the appellant was that "he must prove … that he has suffered a workplace injury in the form of hazardous substance poisoning or chemical injury" and that the Review Officer was not satisfied that he had done so. She also said (at [20]) that, whatever relationship might exist between the appellant's symptoms, the appellant's case was that all of these were consequential upon the chemical injury and, hence, the appellant was required to establish that he had "suffered hazardous substance poisoning OR chemical injury". Then, after referring to authority, particularly Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253, she remarked (at [23]) that the Review Officer "appreciated that the appellant was required to establish that he had suffered a workplace injury". Having concluded that the Review Officer had not been satisfied of this, she dismissed ground 1.
12 The approach adopted by the Compensation Magistrate seems, with respect, to have misunderstood what was decided by the Review Officer. The Review Officer did not consider that the appellant was obliged to prove that he had suffered a workplace injury, but only that he was required to prove that his disabilities were permanent. This is apparent from what was said by the Review Officer at [197] of her reasons. She concluded, on the strength of the medical evidence accepted by her, that the disabilities were not permanent if they were not a product of toxicity. While she assumed, for this purpose, that any toxicity was work-caused, she did not decide, or need to decide, that question, her only concern having been with the question of permanence.
13 There are four grounds of appeal to this Court. The first of them contends that the Compensation Magistrate and the Review Officer erred in law in concluding that the appellant was required to establish that "he was suffering from hazardous substance poisoning" and that he "had to establish that his exposure to toxic substances in his employment caused
(Page 7)
- him chemical injury". Ground 2 complains that the Compensation Magistrate and Review Officer erred in law "by considering and deciding the appellant's application as if the Review Officer had to decide common law issues of causation". Ground 3 contends that the Compensation Magistrate and Review Officer should have decided that the medical evidence advanced on behalf of the appellant established the degree of disability contended for by him. Ground 4 contends that, if causation was relevant to the determination of the application, the Review Officer and the Compensation Magistrate failed to apply proper principles of causation. None of the grounds of appeal addresses the adequacy of the Review Officer's reasons or asserts that she failed to make (as opposed to erred in making) any of the findings that she was required to make, including findings in respect of the permanence or otherwise of the appellant's depression, fatigue and skin problems.
14 As to the first two grounds, it will be apparent from what I have already said that, as I read her reasons, the Review Officer did not embark upon issues of causation to any greater extent than was required in order to determine whether or not the disabilities suffered by the appellant were permanent. That question, which the Review Officer was required to decide, could not be answered by her without deciding what was the cause of the appellant's cognitive problems, depression, fatigue and skin disorder. That was because, as I have said, the medical evidence accepted by the Review Officer was to the effect that, if the problems experienced by the appellant were attributable to a cause other than toxic poisoning, they were unlikely to be permanent. The Compensation Magistrate was consequently right to dismiss the appeal, to the extent that it raised these issues. While remarks made by her to the effect that the Review Officer appreciated that the appellant was required to establish that he had suffered a workplace injury were not accurate, it was the case that, as I have stressed, before the appellant could establish the permanence of his disabilities, he was required to prove that he had suffered hazardous substance poisoning or chemical injury, being, incidentally (at least for the purposes of the review hearing) the alleged workplace injury. The error consequently made no difference to the outcome of the appeal to the Compensation Magistrate.
15 As to ground 3, no error of principle has been made out in support of the contention that the Review Officer should have found in favour of the appellant in deciding what was the degree of his disability. If any error was disclosed in that respect (and I am not persuaded that any has been shown), it was an error of fact (as to which see, in respect of the appeal to
(Page 8)
- the Compensation Magistrate, s 84ZN(2) of the Act and, in relation to the appeal to this Court, s 84ZW of the Act).
16 Because issues of causation, as opposed to the question whether or not the disability or disabilities suffered by the appellant were permanent, did not arise, ground 4 falls away.
Conclusion
17 It follows from what I have said that, to the extent that the Compensation Magistrate erred in describing the task that had been before the Review Officer, that error made no difference to the outcome of the appeal and her Honour was right to dismiss it. I would consequently dismiss the appeal against her decision.
18 WHEELER JA: I agree with Steytler P.
19 PULLIN JA: This is an appeal from a decision of Compensation Magistrate Hogan, dismissing the appellant's appeal against a Review Officer's dismissal of his three Form 22 referrals.
Proceedings before Review Officer Boon
20 The Review Officer had before her three Form 22 referrals from the appellant. Two claimed a degree of disability of not less than 16 per cent and one claimed a degree of disability of not less than 30 per cent. Under a heading in the form "Description of Disability" the words were inserted "hazardous substance poisoning including lead".
21 The degree of disability in the first two referrals, set out under a heading "Degree of disability as assessed by medical practitioner", was:
"Combined:
1. Mental function
- Dr Somers 15%
- Dr Ng 10%
- Dr Wan 14.3%
2. Skin disorder 4.5% (Dr Somers)
3. Fatigue 5% (Dr Somers)"
(Page 9)
- The second referral added the words:
"Combination of lowest assessments 19.5%"
"Combined:
1. Mental function
- Toxic encephalopathy
- Dr Somers 20%
- Professor Harper 20%
2. Skin disorder 9% (Dr Somers)
3. Fatigue 5% (Dr Somers)
4. Psychiatric impairment (depression) 10% (Dr Ng)
Combination of assessments - 44%"
23 The respondent disputed the appellant's claims that he suffered from the disabilities listed. The dispute was referred to the Review Officer pursuant to s 93E(10) of the Workers' Compensation and Rehabilitation Act1981 (WA) ("The Act"). The Review Officer conducted a four day hearing before dismissing the referrals.
24 The appellant gave evidence that he was exposed to paint, including lead-based paints, and solvents when he worked for the respondent.
25 Medical evidence advanced on behalf of the appellant supported the degree of disability claimed in the Form 22. Thus, for example, in relation to encephalopathy, Professor Harper, an occupational physician, in a report dated 27 April 2004 said:
"1. My assessment is that Eric Bloomfield has developed a mild encephalopathy as a result of chemical exposure at work. This is associated with symptoms of fatigue. He also has a mild recurrent rash which is not disabling.
2. Current symptoms are described above. I attribute his disability to his employment …
(Page 10)
- 3. I feel his cognitive impairment is permanent. My assessment of permanent loss of mental function is mild. I assess it at 18% loss of effective use of his mental capacity (Item 8) pursuant to Schedule 2 of the Act and I equate this to Class 2 of Mental and Behavioural Disorders in the US Guides (page 301, 4th edition). I incorporate his fatigue within this assessment.
…
SUMMARY
Eric Bloomfield is a 45 year old trades assistant who apparently was free of all cognitive symptoms prior to exposure to lead based paint and solvents in the course of his work during the period 1995 - 1999. He has a mild work related encephalopathy due to solvent exposure and possibly also lead. His condition is stable. His work capacity has been reduced. I see no contraindication to finalizing his case. He is left with permanent residual disability."
26 In Dr Harper's report dated 24 January 2005 he said:
"My assessment of percentage disability is 20% loss of cognitive function as a result of his encephalopathy."
27 Professor K C Wan said that the appellant presented with symptoms of early lead poisoning and opined that he suffered from a disability involving his mental status.
28 Dr Somers assessed the loss of mental function flowing from encephalopathy at 20 per cent and "fatigue" at 5 per cent. These opinions were supported by psychometric testing carried out by a Ms L Coxon, a clinical psychologist. On the other hand, a detailed medical report from Mr Michael W Hunt, a clinical neuropsychologist, in a report of 13 November 2003, reviewed the psychometric test results produced by Ms Coxon and expressed the opinion that:
"His test results are excessively variable in all respects and do not in general make neuropsychological sense. They are not consistent with the results expected from an individual who was exposed to toxic compounds in excess of three years ago."
- and:
- "If Mr Bloomfield has any cognitive deficits there [sic]are related to non-organic factors such as depression, anxiety or stress."
- and:
"It is not my opinion [sic] that Mr Bloomfield has or will be left with any permanent organically based neuropsychological impairment resulting from his alleged exposure to lead or other organic solvents whilst working for Liebherr Australia between July 1996 and 2000."
"This man has sustained a permanent psychiatric impairment of 10% with reference to the Commonwealth Social Security Rating of impairment."
30 This opinion was not based on a finding or opinion that the appellant was suffering from toxic poisoning or encephalopathy, because Dr Ng said that he had no expertise in that regard. On the other hand, Dr Peter McCarthy, a consultant psychiatrist, in a report dated 8 January 2005, addressed his psychiatric impairment by reference to the effect on his mental capacity, stated:
"I do not believe [the appellant] will be left with any degree of permanent psychiatric disability as a result of his duties as a trades assistant with Liebherr-Australia Pty Ltd and I rate his permanent psychiatric disability as zero percentage. I [do] not believe he has any degree of permanent neuropsychatric or psychiatric disability attributable to the workplace in question. He is fit for work, fit for his usual social and leisure activities and for domestic activities."
31 Dr Somers expressed the opinion that he suffered a skin disorder resulting in a permanent disability of 9 per cent, but Dr Gebauer, a dermatologist, in a report dated 7 December 2004 concluded:
"I see no permanent disability to his skin."
The task of the Review Officer
32 The Review Officer, acting on a reference under s 93E(10) of the Act, was required to determine the claimant's disability (ie condition - see
(Page 12)
- Girrawheen Tavern v Josephs [2003] WASCA 244), the degree of this disability in percentage terms and, by reason of s 25 of the Act, whether or not the degree of disability is permanent. The Review Officer was not required, in making such a determination, to decide whether the disability was caused by an injury occurring or disease contracted in the workplace. See Girrawheen Tavern, Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130 and Casserly v Alcoa of Australia Ltd [2006] WASCA 150. See also the recent decision in BHP Billiton Ltd v Gomes [2007] WASCA 140.
The Review Officer's reasons
33 The issues before the Review Officer are recorded in [3] of the reasons for decision, which reads:
"The employer disputes that the worker suffered any hazardous substance poisoning, and disputes the existence of any psychiatric disability, loss of mental function including toxic encephalopathy, fatigue or a skin disorder. The employer also disputes the nature of any alleged psychiatric disability, loss of mental functioning, fatigue or skin disorder. It also denies the permanence of any of these alleged conditions and the degree of any of these alleged conditions."
34 After reviewing all of the evidence and, in the section of the reasons for decision under the heading "discussion", the Review Officer (at [197]) said:
"I have no doubt that the worker believes that his present condition is due to the exposure to toxins. The problem the worker faces is that he not only has to prove what his condition is, but he also has to prove that he has a permanent disability relating to the alleged over-exposure to toxins."
35 This was then followed by a passage expressing awareness of authorities such as Girrawheen Tavern, which require the assessment of the degree of disability and not causation. The Review Officer continued:
"In this case, however, the allegations the worker makes about his condition are inextricably linked with causal factors."
36 The Review Officer accepted Mr Hunt's opinion that the worker's test results recorded by Ms Coxon "did not make neuropsychological sense". The Review Officer then referred to the fact that the appellant's
(Page 13)
- failed relationship with a woman provided a possible alternative medical condition, namely anxiety and depression, which would explain the worker's symptoms, referred to Dr Gebauer's evidence that the worker did not have a permanent degree of disability in relation to his skin condition and then concluded at [206]:
"In all the circumstances of this case, given the matters outlined herein, I am not satisfied on this [sic] balance of probabilities that the worker suffers from a toxic related condition, namely, encephalopathy, nor any other permanent cerebral dysfunction."
38 It appears from the passages quoted above that the Review Officer correctly directed herself about the legislative requirements for her to decide the disability, the degree of disability and the permanence of the disability. The Review Officer then reached a conclusion, open to her on the evidence, that there was no encephalopathy and that, in consequence, there was no cerebral dysfunction. That decision is unimpeachable because there is no error of law revealed. The Review Officer considered whether the disability flowed from the appellant's exposure to chemicals at work in deciding whether there was any encephalopathy at all. The Review Officer did not conclude that there was a disability but that it was not work related (reasoning which would have revealed error); rather the Review Officer decided that the disability, ie cerebral dysfunction caused by encephalopathy, did not exist at all.
39 However, the Review Officer failed to make any finding in relation to the existence of the claimed disabilities of depression and skin disorder. Further, the Review Officer made no finding about the fatigue disability. Dr Somers separately assessed the disabilities of cerebral dysfunction (at 20 per cent) and fatigue (at 5 per cent). Professor Harper incorporated fatigue into his assessment of the cerebral dysfunction (at 20 per cent). Unfortunately, the Review Officer made no finding about whose assessment she accepted. If she accepted Professor Harper's method of assessment then there may have been a finding that there was no fatigue disability. If the Review Officer accepted Dr Somer's evidence in preference to Professor Harper's then there was evidence of fatigue at 5 per cent. The disability of depression was claimed at 10 per cent and would, on its own, fall below the "relevant level". However, the skin disorder disability was claimed at 9 per cent and fatigue at 5 per cent, and the combined percentages for those disabilities and the depression disability, if found to exist, would exceed 16 per cent. The disorders were
(Page 14)
- said to be caused by the overexposure to toxins and, if so, the inference was open that this caused the disabilities and that they are permanent. If they were not caused by the overexposure to toxins, then perhaps the disabilities were not permanent. Unfortunately the Review Officer did not decide whether disabilities of skin disorder, fatigue or depression existed. As a result she did not consider the issue of permanence in relation to those claimed disabilities.
40 Since dictating and circulating a draft of my reasons containing the foregoing I have received the reasons of the President. The President refers to [195], [198], [201] - [204] and [206] of the Review Officer's reasons as revealing findings by the Review Officer that depression and skin disorder conditions were not permanent. Naturally in the light of the President's conclusions I have felt the need to carefully re-read the section of the Review Officer's reasons from [195] to the conclusion. Having done so I still hold to my conclusion that necessary findings were not made by the Review Officer about the claimed disabilities of depression, skin disorder or fatigue. I have set out below an analysis of the paragraphs from [195] to the conclusion of the Review Officer's reasons.
41 In [195] the Review Officer referred to the evidence of two psychologists, Ms Coxon and Mr Hunt. The Review Officer said that as Ms Coxon and Mr Hunt were not medical practitioners he felt that their evidence in itself could not be used to establish any degree of disability the worker might have nor a diagnosis of any condition the worker might have. The Review Officer concluded however that the evidence was relevant to assist medical practitioners in arriving at a diagnosis and assessing the worker's degree of disability. Paragraph 196 referred to those results. The Review Officer noted that "if the worker had any cognitive deficits" they were related to "non-organic factors such as depression, anxiety or stress". This is an acknowledgement of the existence of depression.
42 Paragraph 197 has already been referred to so I do not have to refer to it again.
43 In [198] the Review Officer discussed the evidence of Mr Hunt and Ms Coxon again. The Review Officer found that Mr Hunt's evidence was "more convincing". This is a reference to Mr Hunt's brain function tests. That did not involve any finding about whether or not the appellant had depression, skin disorder or fatigue. In fact at [77] the Review Officer quoted from a report from Mr Hunt where he said "if Mr Bloomfield has any cognitive deficits they are related to non-organic factors such as
(Page 15)
- depression, anxiety or stress …". This is an acknowledgment of the existence of depression. Insofar as the Review Officer refers to a cause for the depression she was straying into an area which did not have to be examined.
44 In [199] the Review Officer referred to submissions about the effect of toxic substances and accepted that "there is a body of medical opinion to the effect that a combination of toxic substances may lead to a synergistic effect which is greater than the sum of the individual effects on a worker". The Review Officer concluded that the weight of medical evidence was against the worker in this respect. That is irrelevant for present purposes.
45 In [200] the Review Officer referred to Professor Wan's evidence and strayed impermissibly into the area of causation. This appeared in the last two sentences which read:
"It appears to me that he has, despite the fact that the worker's blood lead levels were low, drawn a connection between the worker's symptoms of fatigue, lethargy, problems with memory, loss of strength and behavioural changes and difficulty concentrating and the exposure to lead. No other possible causal factors were considered."
46 The comments about causation should be put to one side as being irrelevant, but the reference to "fatigue" was an acknowledgment of the existence of one of the claimed disabilities and the reference to lethargy, behavioural changes and difficulty concentrating were consistent with depression.
47 In [201] the Review Officer referred to the failed relationship with Ms Shepley and concluded that "several medical practitioners, including a psychiatrist Dr McCarthy, have commented that the symptoms the worker describes are also consistent with symptoms of depression". If causation were an issue in proceedings before the Review Officer then this might have been important. However causation was not an issue and what the evidence revealed was that several medical practitioners saw symptoms of depression. No finding was made about the permanence of the depression.
48 In [202] the Review Officer referred to Dr Somers' evidence and in particular in relation to the "claim of toxic poisoning". The Review Officer said that Dr Somers qualifications as a general practitioner "are not as high as those of the specialists who have provided reports". The
(Page 16)
- Review Officer then referred to Professor Harper as a respected occupational physician who had also "significantly supported the worker". The disabilities of fatigue, depression or skin disorder were not mentioned.
49 In [203] the Review Officer made a finding that the appellant was exposed to toxic substances but that the extent of exposure was impossible to determine. She referred again to Mr Hunt's evidence in relation to the tests; referred again to the failed relationship with Ms Shepley and said that this provided "a possible alternative medical condition namely anxiety and depression which may explain the worker's symptoms". This was an acknowledgment that depression existed as a disability. Once again the reference to causation or an "explanation" for the disability were irrelevant.
50 In [204] the Review Officer referred to the evidence of Dr Joyce, who did not consider that the appellant was suffering from toxic poisoning, and said that neither did Dr Fong or Dr Gebauer in relation to the skin condition. The Review Officer then said:
"Dr Gebauer is a dermatologist who did see the skin condition the worker complains of. He does not consider that this is related to any toxic substances and has not considered the worker has a permanent degree of disability in relation to his skin condition."
51 This is a recording of the evidence of Dr Gebauer and not a finding. A finding had to be made (but was never made) because Dr Somers considered that there was a skin disorder and Dr Joyce (at Green AB 259) considered that there was a skin disorder disability impairing quality of life "by a per cent or two". In the context of this case a "per cent or two" was critical. If the Review Officer had made a finding preferring Dr Gebauer's evidence then that would have been fatal to the appellant's claim, but no such finding was made.
52 From this review of the Review Officer's reasons it is clear that the Review Officer acknowledged the existence of fatigue and depression but made no findings that these conditions were not permanent. There was evidence of a skin disorder. The Review Officer specifically acknowledged the existence of some evidence (that of Dr Gebauer) that this was not permanent but did not make a finding that she accepted Dr Gebauer's evidence in preference to the other evidence.
(Page 17)
53 In [206] the Review Officer did make a finding that, on the balance of probabilities, the appellant did not suffer from a toxic related condition, namely encephalopathy, "nor any other permanent cerebral dysfunction". I read this as a reference to the dysfunction for which Mr Hunt was testing and which was described in the Form 22 application as "mental function toxic encephalopathy". The Review Officer clearly found that the claimed disability "encephalopathy" and its effect on mental function, or in other words "cerebral dysfunction", did not exist.
54 However, the appellant claimed in his application Form 22 that he suffered from depression as another separate disability. The task of the Review Officer was to find whether or not there was such a disability. It seems clear beyond question that there was such a disability. If he was suffering from depression the Review Officer then had to find whether the condition was permanent or not. No such finding was made. The same comments may be made about the claimed disabilities of fatigue and skin disorder.
55 Re-reading the Review Officer's reasons re-confirms my conclusion that the Review Officer did not make any findings at all about the claimed disabilities of skin disorder, fatigue or depression.
Proceedings before the Compensation Magistrate
56 The appellant then appealed to Compensation Magistrate Hogan. Most of the grounds are difficult to understand. However, ground 1 contended that the Review Officer "erred in law" in failing to ask whether, on the balance of probabilities, the exposure to toxic paints and solvents in the respondent's workplace materially contributed to the relationship breakdown, materially contributed to depression and materially contributed to the "relevant condition" (which includes the skin disorder and fatigue). This contention necessarily contains two aspects. One is that the Review Officer failed to "ask" whether the worker suffered the disability of depression or relevant condition, and the second aspect is whether depression or the relevant condition was caused by exposure to toxins in the workplace.
57 The Compensation Magistrate did the best she could with the grounds of appeal, but in relation to ground 1 it is clear that she regarded the appellant as being under an obligation to prove that any disability he suffered was as the result of a workplace injury. This came to dominate the reasons.
58 So, for example the Compensation Magistrate said at [19]:
(Page 18)
- "… The first hurdle for the appellant is that he must prove, on the balance of probabilities, that he has suffered a workplace injury in the form of hazardous substance poisoning or chemical injury. The review officer was not satisfied that he had done so."
59 At [22] and [23] the Compensation Magistrate said:
"In support of ground of appeal 1.1 counsel for the appellant refers to Eclipse Resources v Jarrad Reeves; unreported, CM-42/04, 13 September 2004. In that case Packington CM had referred to the distinction between a disability in respect of which compensation has been paid or is payable and the accumulated consequences or symptoms of that disability which give rise to the degree of disability to be assessed pursuant to s 93D of the Act. His Honour observed:
'In re Monger; ex parte United Construction Pty Ltd (2002) WASCA 253, Fitzgerald AJ seeming, in my view, to support the position taken by this court, dealt with the problem by referring (at paragraph 63) to the worker's disability as "his accident", and his degree of disability as "disability":
"While there might be cases in which a worker's disability is to be determined by reference to more than one paragraph of the definition of 'disability', Mr Santos' damages claim is based solely on his accident … … The disability for which Mr Santos claims damages is solely referable to paragraph (a) of the definition of 'disability' which is separate and self-contained.
The Review Officer was required to determine what disability Mr Santos has as a result of his accident. Any hip problems that he has as a result of his accident form part of that disability and Mr Santos' employment was the cause of those hip problems. Any hip problems that he has that do not result from his accident are not part of his disability for the purposes of his damages claim …"
However one describes the review officer's task in assessing a degree of disability, it must involve the issue of causation in at least that sense. In this case, for example, it must have involved the question of whether the respondent's alleged
- psychiatric impairment and sexual dysfunction were the result of the accident in which he injured his groin.' (p25 - 26)
- Here, the review officer appreciated that the appellant was required to establish that he had suffered a workplace injury."
60 At [24] the Compensation Magistrate said:
"Before going on to attribute any assessment of degree of disability to any symptom arising out of an injury, one must first be satisfied that the injury exists (and that it was a workplace injury)." (Emphasis added).
61 These statements were made in the course of discussing ground 1. See also pars [52] and [67], where similar statements were made in relation to other grounds.
Appeal to this Court
62 The grounds of appeal to this Court read as follows:
"Ground 1
The Compensation Magistrate and the Review Officer erred in law in:
a) deciding that in determining whether the Appellant had the requisite degree of disability for the purposes of s 93D the Appellant had to establish before the Review Officer that he was suffering from hazardous substance poisoning (what the Review Officer and the Compensation Magistrate described as a 'chemical injury' and 'a work place injury'; and
b) in deciding that issue that the Appellant had to establish that his exposure to toxic substances in his employment caused him chemical injury.
Ground 2
The Compensation Magistrate and the Review Officer erred in law by considering and deciding the Appellant's application as if the Review Officer had to decide common law issues of causation when the proper jurisdictional function of the Review
(Page 20)
- Officer was to decide whether, on the Appellant's medical evidence, the Appellant was suffering a degree of disability not less than 16% or 30% which, if indicated by the Appellant's medical evidence, permitted the Appellant to commence proceedings for damages at common law.
Ground 3
Had the Compensation Magistrate and the Review Officer properly directed themselves to the issue to be determined under s 93D they should have decided that the Appellant's medical evidence considered in a 'relatively non-technical approach' [showed] he was suffering the degree of disability proposed in his Form 22 dated 3 March 2005, namely, in aggregate, 44%.
Ground 4
If any issue of causation was relevant to the determination of the Appellant's application then the Review Officer and the Compensation Magistrate failed to apply proper principles of causation …"
Grounds 1 and 2
63 As indicated above, the Review Officer unfortunately failed to make any finding about the claimed disabilities of depression, fatigue and skin disorder.
64 The failure to decide about the existence of the condition of depression and the "relevant condition" formed the subject of ground 1 in the appeal to the Compensation Magistrate, but that ground (contrary to the stance now being taken) also alleged that the Review Officer erred in not asking herself (ie deciding) whether "exposure to toxins in the workplace materially contributed" to the depression. That led the Compensation Magistrate to consider that issue, and the Compensation Magistrate then applied what Packington CM said in Eclipse Resources v Jarrad Reeves, unreported; CM-42/04; 13 September 2004.
65 The conclusion must follow that the Compensation Magistrate erred in considering the issue about whether any condition the appellant was suffering from was caused by events in the workplace and in deciding the appeal on the basis that this had not been proved. See BHP Billiton. Ground 1 must therefore be upheld.
(Page 21)
66 That then raises the question about whether this Court can decide the case on the materials before it. Once error is revealed, this Court has plenary powers to rehear the case and make such orders as should have been made. See s 59 of the Supreme Court Act 1935 (WA). Likewise the Compensation Magistrate has such powers. However, the issues relating to depression, skin disorder and fatigue disabilities have not been decided at all. There is no finding about whether the conditions exist; no determination about whether they are permanent if they do exist, and no determination about the degree of disability if they do exist and are permanent. If this Court was to decide that matter it would have to do what the Review Officer should have done.
67 At the risk of unnecessary repetition, the process which should have been followed by the Review Officer is as follows:
(a) First, to determine whether the claimed disabilities existed, ie depression, skin disorder or fatigue. If the Review Officer determined that these conditions did not exist, then the application would have been dismissed for that reason.
(b) However, if (as the observations made by the Review Officer seemed to indicate) the appellant was suffering from the disabilities of depression, skin disorder and fatigue, then it was next necessary to determine whether the disability or disabilities was or were permanent. It appears that this would have required a consideration about whether or not the appellant was suffering from the effects of exposure to toxic chemicals. In order to decide that, it may have been necessary to decide what the chemicals were. The only exposure suggested was exposure in the workplace. It would have been relevant therefore to consider what was the workplace exposure.
The consideration of evidence about the chemical substances to which the appellant was exposed would be examined not because it had to be determined that any incident occurred in the workplace, but because the disabilities were said to be a consequence of the toxic effect of the chemicals, which consequence was said to be permanent and not temporary. It would also be relevant to consider whether the depression, if it existed, was suffered, not because of any exposure to toxic chemicals, but because the appellant had suffered an upset when he broke up with his girlfriend. That would be relevant because, if that were the reason for the depression, then the Review Officer
- might have concluded that the depression was not permanent but merely transient.
- If the skin disorder was entirely due to the appellant scratching himself (as some evidence suggested) rather than caused by toxic exposure to chemicals, then the conclusion might have been that the skin disorder was not permanent. The issue concerning fatigue and whether it was permanent would have to be considered (as well as the issue about whether it was separate from cerebral dysfunction or not). Once again, the fact that the exposure to chemicals occurred at work would be examined because it related to the issue of permanence, and not because it had to be decided that the disabilities were work-related.
If the conclusion was that the disabilities were not permanent, then the referrals would, for that reason, be dismissed. If the determination was that only one of the disabilities was permanent or was suffered, then the application would have to be dismissed because none of the three disabilities on its own was assessed at 16 per cent or more.
(c) If the three disabilities of depression, skin disorder and fatigue were considered to be permanent, then the Review Officer would next have to have decided any issue about the degree of disability. I should add that steps (b) and (c) could be decided in the order chosen by the Review Officer.
68 The failure of the Review Officer to decide whether the disabilities of depression, skin disorder and fatigue existed, the failure of the appellant to make that simple point on appeal (and his introduction of the false issue, on the appeal to the Compensation Magistrate, that the disabilities were caused in the workplace), resulted in the wrong issue being considered and led the Compensation Magistrate to consider the latter issue and then to erroneously adopt and apply the reasoning in the Eclipse decision as a reason to dismiss the appeal.
69 The Compensation Magistrate therefore erred in law as alleged in ground 2 (and ground 1, which appears to merely reflect the point made in ground 2).
70 It is not appropriate for this Court or for the Compensation Magistrate to consider the issues concerning depression, skin disorder and fatigue for the first time when there is so much conflict in the evidence.
(Page 23)
Conclusion
71 Grounds 1 and 2 should be upheld. The Compensation Magistrate should have upheld the appeal in relation to ground 1 of the appeal to her Honour and then referred the matter back for a determination about the issues which related to depression, skin disorder and fatigue.
72 Ground 3 must be dismissed. It does not raise any question of law. It is not necessary to decide ground 4.
73 The order of this Court should be that the order of the Compensation Magistrate dismissing the appeal be set aside and in lieu there should be an order that the matter be remitted to the Compensation Magistrate with a direction that the Compensation Magistrate remit the matter to the Review Officer for a determination of the disputes concerning the degree of disability in relation to depression, skin disorder and fatigue.
6
5
2