Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond
[2006] NSWWCCPD 132
•28 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
REPORTED DECISION: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond & Pegrin Pty Ltd (2006) 6 DDCR 79
CITATION:Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond & Pegrin Pty Ltd [2006] NSWWCCPD 132
APPELLANT: Cabramatta Motor Body Repairers (NSW) Pty Ltd
FIRST RESPONDENT: Steafan Raymond
SECOND RESPONDENT: Pegrin Pty Ltd
INSURER:QBE Respondent Workers Compensation (NSW) Limited
FILE NUMBER: WCC16793-04
DATE OF ARBITRATOR’S DECISION: 24 March 2005
DATE OF APPEAL DECISION: 28 June 2006
SUBJECT MATTER OF DECISION: Disease; sections 15 and 16 Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Diana Benk
First Respondent: Slater & Gordon Second Respondent: Moray & Agnew
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 24 March 2005 is confirmed.
The Appellant Employer is to pay both the Respondent Worker’s costs of the appeal and the Second Respondent’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 21 April 2005 Cabramatta Motor Body Repairers (NSW) Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 March 2005.
The First Respondent to the Appeal is Steafan Raymond (‘the Respondent Worker/Mr Raymond’) and the Second Respondent to the Appeal is Pegrin Pty Ltd (‘the Second Respondent/Pegrin’). Before the Arbitrator Pegrin was the first respondent and first employer in time and the Appellant Employer was the second respondent and second employer in time.
Mr Raymond was born in Iraq on 1 January 1965 and came to Australia in March 1990. Within days of arriving he secured employment with G & N Smash Repairs as a car detailer. In 1991 he obtained employment with Pegrin. His duties included servicing and painting petrol pumps and cleaning and painting storage tanks.
The work was difficult and demanding. It required him to spray the petrol pumps with a degreasing substance which had a very strong smell. He then washed the pumps by hand. Metal strips had to be cleaned in an acid bath to remove paint from them. He then painted the strips and pumps using ‘two pack paint’ (see Respondent Worker’s statement 9 September 2003 paragraph 9). The pumps would then be reassembled.
He was provided with a mask to wear whilst performing his duties. The evidence was that the filter in the mask required replacement every three months. The filter was replaced after three months but not again for the rest of the Respondent Worker’s employment with Pegrin.
After about six months the Mr Raymond noticed a burning sensation in his throat. That sensation became worse over time. He also developed a cough, headaches and chest pain which all became worse at night.
He sought treatment for these symptoms from his local general practitioner , Dr Bartos, in mid 1992 but remained at work until May 1995 according to his statement, but more likely May 1996 according to letters from Pegrin attached to the Application to Resolve a Dispute (‘the Application’) filed on 8 October 2004. The precise circumstances of his ceasing work are unclear.
He remained off work until he was employed by the Appellant Employer in May 1999. With that employer his duties involved spray painting and sanding cars. The work was dusty. No mask was worn whilst applying the primer and sanding back but a mask was worn when spraying with ‘two pack paint’ (Respondent Worker’s statement 9 September 2003 paragraph 27). Even with a mask the Respondent Worker said “the chemical smell was always very strong and I sometimes felt like I was suffocating” (see Respondent Worker's statement paragraph 27). He stated that all of the duties with the Appellant Employer aggravated his chest and that he “quickly became very sick again” (see Respondent Worker’s statement paragraph 28).
Mr Raymond ceased employment with the Appellant Employer on 9 March 2000. His employment was terminated because of a physical altercation he had with a co-worker. The Respondent Worker’s claim in his statement that he ceased work because he was “in too much pain” (Respondent Worker’s statement paragraph 28) was false.
Against Pegrin no claim for compensation was made until 16 September 2002 and against the Appellant Employer no claim was made until 21 January 2003. The claims were ultimately heard at arbitration on 15 March 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 24 March 2005 records the Arbitrator’s orders as follows:
“1.First Respondent [Pegrin] to pay $175.00 per week from 31 May 1996 to May 1999 pursuant to s40.
2. First Respondent to pay s60 expenses incurred up to 8 March 2000.
3.Second Respondent [Appellant Employer] to pay $197.69 per week from 9 March 2000 to date and continuing pursuant to s40.
4. Second Respondent to pay s60 expenses incurred after 8 March 2000.
5.Respondents to pay the Applicant’s costs as agreed or assessed. Such costs to be met by the two Respondents equally.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
· in concluding that the Respondent Worker suffered an injury whilst employed by the Appellant Employer;
· in concluding that the Respondent Worker’s employment with the Appellant Employer was a substantial contributing factor to the injury allegedly received on 9 March 2000;
· when he concluded that the Respondent Worker’s employment with the Appellant Employer constituted an aggravation of a disease, and
· when he concluded that the Respondent Worker was incapacitated subsequent to and as a result of an injury which occurred whistle the Respondent Worker was employed by the Appellant Employer.
ON THE PAPERS REVIEW
Section 354(6) of 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.”
The Appellant Employer submits that if leave to appeal is granted there should be an oral hearing because the appeal will:
(a) involve close analysis of the evidence with particular reference to whether the
Respondent Worker suffered an injury by way of aggravation of a disease;
(b) the matter is of some complexity;
(c) natural justice and procedural fairness dictate there should be an oral hearing;
(d)the amounts involved are substantial;
(e)an oral hearing will enable the parties to deal with each others competing submissions in a more satisfactory way than by an exchange of written submissions, and
(f)at the time the Appellant’s submissions were prepared no transcript was available.
Pegrin submits that the appeal can be determined on the papers.
Dealing with the matters listed at paragraph 14 above I note that all parties have filed detailed written submissions dealing with the relevant issues in the appeal. The transcript was issued to the parties on 5 May 2005 but no additional submissions have been made referring to it. The written submissions prepared by the Appellant Employer are thirteen pages long and comprehensively cover the issues raised in the grounds of appeal. In response to a direction issued by me on 20 April 2006 all parties have prepared and filed supplementary submissions which I have taken into account in reaching my decision.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the issues that are raised in the appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
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.
The award involves compensation well in excess of the $5,000 limit set out in section 352 (2) of the 1998 Act and more than 20% of the amount awarded is “at issue” in the appeal.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I believe that this is an appropriate matter in which to grant leave to appeal and leave is granted.
MEDICAL EVIDENCE
Dr Johnson, Consultant Thoracic Physician, saw Mr Raymond on 31 August 2000 on referral from Dr Murad. He subsequently saw him on eight occasions over 2000 and into 2001. He took a history that the Respondent Worker’s duties with Pegrin required him to do spray painting with “2-pack spray paint”. Whilst he wore an airflow helmet he could often smell paint coming into the helmet. About a year after working for Pegrin Mr Raymond developed dyspnoea, a cough, headache and chest pain which was worse at night and particularly after cleaning out the grease tank at work. He also developed a rash on several occasions after spray painting. After leaving Pegrin the Respondent Worker worked for the Appellant Employer for about nine months as a spray painter. He said Mr Raymond stopped work with the Appellant Employer because “it made his symptoms worse” (report 10 September 2001 at page one). That history was incorrect. Dr Johnson goes on to state at page three that in his opinion “the onset of his asthma was due to his occupational exposures while with Tegrin [sic] Pty Limited” (emphasis added) (it should be noted that all doctors in this case wrongly refer to the Second Respondent/Pegrin as ‘Tegrin’). In his supplementary report of 15 May 2004 the doctor states that the Respondent Worker’s period of employment with the Appellant Employer “between July 1999 and March 2000 aggravated his existing condition”. The supplementary report was prepared in response to a letter from the Respondent Worker’s solicitors of 8 October 2003. That letter was not before the Arbitrator.
Dr Clarke, Consultant Physician Thoracic Medicine, took a history in his report of 9 April 2001 that Mr Raymond developed breathlessness about one year after starting work with Pegrin. He also had a cough and was wheezing. He recorded that the work involved painting with ‘two pack paint’. In respect of the work with the Appellant Employer he stated that Mr Raymond worked there for nine months as a spray painter. He concluded that the Respondent Worker appeared to have developed occupational asthma which he attributed to “the inhalation of fumes liberated from two pack paint preparations that occurred during his period of employment with Tegrin [sic] Pty Ltd”. In his report of 30 July 2001 Dr Clarke stated that:
“If my analysis of the work situation is correct I believe the substance that caused his occupational asthma is isocyanate and this is released as a vapour after the two pack system is activated. This is usually done by adding the activator to the inert paint. After activation takes place the isocyanate is released as a vapour. The actual concentration can be measured. In do not believe the vapour can be classified as a dust.”
Dr Clarke’s opinion is referred to in more detail below.
Dr Greenaway saw the Respondent Worker on behalf of the Appellant Employer on 25 April 2003 (report 29 April 2003). His history was that the Respondent Worker was involved in spray painting from 1991 to 1996 with Pegrin which lead to symptoms of chest tightness. After seeing his local doctor he was given a bronchodilator spray which gave him significant symptomatic benefit. After ceasing work with Pegrin he noticed further definite improvement In respect of the work with the Appellant Employer he recorded that Mr Raymond attempted to work there as a spray painter but “lasted some seven months prior to the return [of] the symptoms previously noted” (see report 29 April 2003 page two). He adds “associated with them headaches developed causing definite problems superimposed on the respiratory problems”. Dr Greenaway agreed with the reports of Dr Clarke and Dr Johnson. On the question of causation he said he had “no doubt that the employment with Tegrin [sic] was the cause of the problem”. It is not clear what if anything the doctor was asked about any aggravation of the condition with the Appellant Employer, but at page four he states that “the duration of any aggravation is quite hypothetical and would determine [sic] on the exact nature thereof”.
SUBMISSIONS AND FINDINGS
Disease Generally
The disease provisions were debated at length during the Arbitration. Effectively, counsel for the Appellant Employer submitted that there was no injury with his client, either a frank injury or an injury to which the disease provisions would apply. He did not concede that he Respondent Worker’s condition of occupational asthma was a disease (see transcript at page 26 lines 30 to 51). However, it was later conceded that if the Arbitrator found that occupational asthma was a disease then such a finding was relevant to the claim against Pegrin (see transcript page 39 lines 48 to 56). On appeal the Appellant Employer concedes that it was open to the Arbitrator to conclude that the Respondent Worker’s condition is a disease and that the provisions of section 15 of the Workers Compensation Act 1987(the 1987 Act) apply (see Appellant Employer’s submissions at paragraph 26). I accept that this concession relates only to the claim against Pegrin.
The Arbitrator found that the Respondent Worker’s condition was a disease and referred to and relied on Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482, Commissioner of Railways v Bain (1965) 112 CLR 246 and Favelle Mort Ltd v Murray (1976) 133 CLR 580 to justify that conclusion. From those cases he concluded that a “disease is a reference to a pathological condition that continues to operate according to its pathological nature and which is commonly called a disease” (see Reasons at paragraph 30). The Arbitrator also relied on the decision of Judge Burke in Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253 where his Honour quoted with approval the definition of disease in Blakiston’s Gould Medical Dictionary that a disease was a failure of the adaptive mechanisms of an organism to counteract adequately the stimuli or stresses to which it is subject, resulting in a disturbance in function or structure of any part, or organ or system of the body (see Arbitrator’s Statement of Reasons (‘Reasons’) at paragraph 31). Applying those tests the Arbitrator concluded that the Respondent Worker’s condition was “properly categorised as a disease” (see Reasons at paragraph 32). I agree with that approach and the conclusion reached and I don’t understand anything in the Appellant Employer’s submissions on appeal to suggest a contrary approach.
The Arbitrator’s next factual finding was that the disease had been caused over a period of time (see Reasons at paragraph 33) and, therefore, the disease was one of gradual onset and section 15 of the 1987 Act was therefore relevant “at least so far as the First Respondent is concerned”, but the Arbitrator acknowledged that there was “an argument that other considerations may apply” to the claim against the Appellant Employer. The Arbitrator accepted Dr Johnson’s opinion that the there had been an aggravation of the disease as a result of the work with the Appellant Employer (see Reasons at paragraph 35).
I do not understand the Appellant Employer to challenge the Arbitrator’s reliance on Alto FordPty Ltd v Antaw (1999) 18 NSWCCR 246 at paragraph 36 of his Reasons. Applying that authority to the facts of the present case gives rise to two deemed dates of injury. I believe that that finding was open on the evidence.
Whilst there are references to section 15 of the 1987 Act being relevant to the claim against the Appellant Employer (see Reasons paragraph 36), the ultimate finding against it was under sections 4(b)(ii) and 16 (see Reasons paragraph 35). The Arbitrator found injury against Pegrin under sections 4(b)(i) and section 15. As will be seen below I believe that these findings were open on the evidence.
It is convenient to deal separately with sections 15 and 16 of the 1987 Act.
Sections 4(b)(ii) and 16 of the 1987Act
So far as is relevant these sections provide:
“4 Definition of ‘injury’
(cf former s 6 (1))
In this Act:
‘injury’:
(a) means personal injury arising out of or in the course of employment,
(b) includes:(i) …
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“16 Aggravation etc of diseases—employer liable, date of injury etc
(cf former ss 7 (4A), (5), 16 (1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”
The Appellant Employer submits that Mr Raymond’s symptoms “worsened somewhat by about 1999” (see Appellant Employer’s submissions at paragraph 10). In the Respondent Worker’s statement of 9 September 2003 he states at paragraph 24 that “by about 1999 my symptoms had lessened somewhat, and I wished to return to work” (emphasis added). Centrelink arranged for him to be employed by the Appellant Employer which employment commenced on or about 17 May 1999. The evidence of his symptoms lessening is corroborated by the notes from Dr Bartos which show only one attendance for respiratory problems between August 1996 and July 1999.
His problems re-occurred with the Appellant Employer but he was able to continue working performing his full duties. In his oral evidence the Respondent Worker said that he suffered “dizziness and [his] asthma condition worsened” (transcript page eight line 40) while working for the Appellant Employer. At page nine line 11 the Respondent Worker agreed that his “condition deteriorated” in the time he worked with the Appellant Employer and that the problems continued after ceasing work.
The Respondent Worker also stated that he stopped work because of his condition. In fact the Respondent Worker stopped work for the Appellant Employer because he was dismissed because of an alleged physical altercation involving a co-worker. The dismissal was documented in a letter addressed to the Respondent Worker dated 13 March 2000 which was in evidence before the Arbitrator. When cross examined about the altercation and the termination of his employment with the Appellant Employer the Respondent Worker stated that “there was definitely no altercation” (transcript page thirteen). This denial was contrary to written evidence before the Arbitrator.
In cross examination by counsel for the Appellant Employer at page 10 line 27 and line 39 the Respondent Worker agreed that he continued to suffer from a dry cough and chest pain which were symptoms he had “back before 1999”. At page nine line 30 the he agreed that he was still suffering from pain on breathing.
The submission continues that the Respondent Worker’s symptoms with the Appellant Employer were the same as the symptoms experienced with Pegrin. I agree in general that the Respondent Worker’s symptoms with the Appellant Employer were of the same general kind as those he’d experienced with Pegrin but his evidence suggested an increase in the level or severity of his symptoms whilst working with the Appellant Employer. That increase occurred after his symptoms had “lessened somewhat” after ceasing work with Pegrin (see Respondent Worker’s statement 9 September 2003 paragraph 24).
In respect of the Respondent Worker’s attendances on Dr Bartos the point is made that, contrary to the Arbitrator’s finding, the Respondent Worker did not regularly attend on Dr Bartos. In the period from May 1999 to December 1999 the Respondent Worker attended on Dr Bartos on three occasions because of his asthma. The Arbitrator’s findings on this issue were set out at paragraph 21 of his Reasons which reads:
“The Applicant commenced with the Second Respondent in May 1999 when employment was arranged for him by the unemployment agency. With the Second Respondent the Applicant was again engaged in spray painting work. He wore a mask when spraying cars in the oven area but not at other times. He says and I accept in the absence of evidence to the contrary that the chemical smell was very strong even when wearing the mask. Within a short time of commencing with the Second Respondent the Applicant became sick again, experiencing chest pain, coughing and headaches. Whilst the symptoms were of the same type as previously experienced the Applicant said in cross examination that his condition became worse during that time. This is consistent with the notes of Dr Bartos which show that the Applicant returned to the doctor complaining of headaches and coughing on 15 November 1999 and consulted the doctor regularly with similar complaints throughout the duration of his employment with the Second Respondent.”
The Respondent Worker attended on Dr Bartos on the following occasions during his period of employment with the Appellant Employer:
· an unidentified date in July 1999 when the notes read “SOB Faint Wheeze”. The reference to “SOB” I interpret to mean ‘shortness of breath’. There are other entries for this attendance which are illegible;
· 15 November 1999 when the notes read “Headache Coughing”. Again there are other entries which are illegible, and
· 19 December 1999 which reads “B asthma” which I interpret to mean ‘bronchial asthma’.
Pulmicort (an inhaled steroid) was prescribed at each of the above attendances. Mr Raymond did not attend again on Dr Bartos until 17 March 2000, eight days after his employment with the Appellant Employer ceased. Again, the entry on this date is very difficult to read but there is a reference to “wheeze” and at the attendance on 27 March 2000 there is a reference to “cough”. It seems that pulmicort and or bricanyl (an inhaled bronchidilator) was again prescribed at one or other of these attendances. In light of the doctor’s notes I think the statement that the Respondent Worker “regularly” consulted Dr Bartos throughout “the duration of his employment with the Second Respondent” was open on the evidence. Mr Raymond did not attend on Dr Bartos at all in the last three months of his employment with the Appellant Employer. No certificate of unfitness for work was prepared by Dr Bartos until 10 September 2002 and no report was tendered from him.
It is pressed by the Appellant Employer that the lack of attendances by the Respondent Worker on Dr Bartos in the last three months of his employment confirms that the Respondent Worker was performing his normal duties in a normal manner and that his symptoms were not increasing to the point where he became incapacitated (see Appellant Employer’s submissions at paragraph 30). It follows, so the augment runs, that if the Respondent Worker is incapacitated his incapacity results from his injury with Pegrin.
Dealing further with Dr Bartos’s notes and why the Respondent Worker ceased work the Arbitrator said at paragraph 22 of his Reasons:
“The Applicant says that the [sic] left the employ of the Second Respondent because of his symptoms. The statements filed by the Second Respondent including a statement from the Applicant make it clear that the Applicant’s employment was terminated following an altercation with another employee. That fact does not excuse the Second Respondent from liability if there is incapacity on the open labour market due to injury in the course of or arising our of the employment with the Second Respondent but it does give me cause to examine carefully the Applicant’s evidence. The Applicant’s evidence about the onset of his symptoms is supported by Dr Bartos’s notes and there is no evidence called by either Respondent disputing what he says about the work conditions. For those reasons I accept the Applicant’s evidence in that respect”. (emphasis added)
The Appellant Employer submits that the Arbitrator’s reference to the “onset of his symptoms” misses the point being made, namely, that the Respondent Worker ceased work because of the altercation and not because of any injury or the aggravation of any injury. The evidence is clear that the Respondent Worker did cease work because of an altercation. That fact does not absolve the employer of liability if it is established that the Respondent Worker sustained an injury within the meaning of section 4 of the 1987 Act. If a compensable injury had been sustained then the Arbitrator was quite correct to state that the test is whether the Respondent Worker was incapacitated on the open labour market. The Appellant Employer’s point is that the notes from Dr Bartos may have supported the Respondent Worker’s complaints about the original onset of his symptoms but they do not support his complaints about sustaining an aggravation of that injury whilst in its employ. The strength of this submission really turns on whether the Arbitrator was referring to the onset of the original symptoms when the Respondent Worker was working for Pegrin or was referring to the onset of symptoms when he was working with the Appellant Employer. The Arbitrator notes at paragraph 20 of his Reasons that there was only one attendance on Dr Bartos between ceasing work for Pegrin in 1996 and July 1999. That is, the notes corroborated the Respondent Worker’s evidence that he had improved after ceasing work with Pegrin. Paragraph’s 20, 21 and 22 of the Arbitrator’s Reasons all deal with Mr Raymond’s circumstances after leaving Pegrin and while working with the Appellant Employer. In these circumstances it may be that the Arbitrator was referring to the symptoms that developed with the Appellant Employer when he said “onset” in paragraph 22 of his Reasons. In addition, it is relevant to note, as the Arbitrator did note, that neither employer called any evidence to dispute the Respondent Worker’s evidence about his “work conditions”. That being so it was open to the Arbitrator to accept the Respondent Worker’s evidence as to the development of symptoms with the Appellant Employer in 1999 especially when the presence of those symptoms was corroborated by attendances on Dr Bartos in 1999. Such a conclusion was also supported by the attendances on Dr Bartos in March 2000 though those attendances were not specifically referred to or relied on by the Arbitrator. If the Arbitrator was referring to the onset of symptoms in 1992 with Pegrin, his ultimate factual findings were still open on the evidence as it was open to him to accept Mr Raymond’s evidence that his symptoms increased during his period of employment with the Appellant Employer though they did not force him to stop work in March 2000.
The Appellant Employer alleges factual errors in the Arbitrator’s consideration and assessment of the medical evidence. In particular the Arbitrator’s acceptance of Dr Johnson’s opinion that the Respondent Worker suffered an aggravation during his period of employment with the Appellant Employer is attacked because that opinion is based on the incorrect history that the Respondent Worker ceased work because of his symptoms. The history taken by the doctor raises two points: first, that the Respondent Worker’s symptoms increased whilst he was working for the Appellant Employer, and, second, that the Respondent Worker ceased work because of that increase in symptoms. The notes from Dr Bartos make it clear that Mr Raymond was having trouble with his breathing in 1999 and in March 2000. Those problems resulted in him being referred for specialist treatment in August 2000. The Arbitrator found (as it was open to him to do) that the Respondent Worker’s condition deteriorated while working for the Appellant Employer. It was therefore open to the Arbitrator to accept the evidence of Dr Johnson of an aggravation with the Appellant Employer. The fact that the Respondent Worker did not cease work because of the aggravation does mean that such an aggravation did not occur or that Dr Johnson’s evidence on this issue should have been given no weight. The evidence of aggravation was also supported in part by the history recorded by Dr Greenaway in his report of 29 April 2003 where he noted at page two that Mr Raymond “lasted only some seven months [with the Appellant Employer] prior to the return of the symptoms previously noted”. It was for the Arbitrator to assess the weight to be attached to Dr Johnson’s opinion on aggravation having due regard to all the evidence in the case (see generally Paric v John Holland Construction Pty Ltd [1984] 2 NSWLR 505 at 510). I see no error of fact, law or discretion in his approach to or conclusion on this issue.
Dr Johnson’s opinion on ‘aggravation’ is also challenged because he does not identify whether it was the symptoms or the underlying disease that was aggravated (see the Appellant Employer’s submissions at paragraph 44). The proper test is whether the aggravation impacted the individual concerned. It is not necessary for the particular disease to be made worse. In Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (‘Federal Broom’) Justice Kitto said at 635:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’”.
The same issue was considered by Judge Burke in Cant v Catholic Schools Office (2000) 20 NSWCCR 88 (‘Cant’) at 93 where his Honour quoted from Justice Windeyer’s judgment in Federal Broom:
“Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 639 posed the essential question of whether there has been a relevant aggravation, acceleration, exacerbation or deterioration of a disease as:
The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.
His Honour had previously commented (at 637):
I therefore find it impossible to conceive of the malady as distinct from its manifestations.
The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
Applying Federal Broom and Cant, and considering the whole of the evidence, I believe it was open to the Arbitrator to conclude that the Respondent Worker suffered an aggravation of his occupational asthma, in the sense that the symptoms increased and became more serious to Mr Raymond, whilst employed by the Appellant Employer.
It is submitted that it is not clear whether Dr Johnson thinks the aggravation was continuing or was one limited to a fixed period (see Appellant Employer’s submissions at paragraph 45). It is true that the doctor does not expressly deal with that issue. However, the Respondent Worker was cross examined about his symptoms and was asked if the problems he developed with the Appellant Employer were continuing and he replied “certainly” (transcript page nine line 17). When cross examined by counsel for the Appellant Employer the Respondent Worker agreed that his dry cough and chest pain were symptoms he had “before 1999” (transcript page 10 line 27). But the Respondent Worker was not asked whether the level or severity of his symptoms had diminished over time.
Dr Greenaway talks about the Respondent Worker's condition having improved but on the issue of continuing aggravation he states “the duration of any temporary aggravation is quite hypothetical” (report 29 April 2003 page four). In my opinion it was open to the Arbitrator to find a continuing aggravation on the basis of the evidence noted at page nine of the transcript.
Dr Lee provides no assistance on this issue as he does not agree that the Respondent Worker has occupational asthma. His opinion is contrary to that of every other specialist in the case. It was rejected by the Arbitrator and in my opinion he was correct to do so.
Further criticism is made of the Arbitrator’s statement at paragraph 35 that only one doctor in the case (Dr Johnson) considered whether there had been an aggravation of the condition as a result of work with the Appellant Employer (see Appellant Employer’s submissions at paragraph 38). It is submitted that the question was also touched on by Dr Greenaway who had “no doubt that the employment with Tegrin [sic] Pty Ltd is the cause of the problem. There is nothing given in the history that I could determine that may have been another contributing factor”. However, Dr Greenaway does not consider or comment on a possible aggravation of the condition with the Appellant Employer. He was not aware that the Respondent Worker used ‘two pack paint’ with the Appellant Employer. I do not believe his opinion prevented a finding of an aggravation with the Appellant Employer.
The Appellant Employer’s next point is that Arbitrator found that the Respondent Worker had been unfit for work as a spray painter from 1996 and that is exactly the same restriction he had after his work with them. Therefore, it is argued, there is no incapacity that can be said to result from the work performed with the Appellant Employer. That argument ignores the Arbitrator’s factual finding that there had been an aggravation with the Appellant Employer.
The question of causation is a question of fact for the Arbitrator to determine according to all the evidence (see Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796). The acceptance or rejection of evidence was a matter for the Arbitrator in the exercise of his discretion. In Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 it was said:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] WCCPD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCFA 206 at [21]). (per Byron DP at [54])
It is also relevant to note that the Commission is required to determine disputes in accordance with the provisions of section 354 of the 1998 Act which provides:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
Having regard to the above provisions and the issues raised in this case and the way in which it was conducted before the Arbitrator (with no oral evidence being called from any doctors) I do not believe the Arbitrator has made any error of fact, law or discretion in his assessment of the issues considered above. I do not believe the Arbitrator has failed to exercise his discretion fairly or according to law or has acted on some wrong legal principle or made a material mistake as to the facts or failed to take into account relevant considerations.
Sections 4(b)(i) and 15 of the 1987 Act
If I am wrong in my analysis of the evidence dealing with sections 4(b)(ii) and 16 of the 1987 Act, it is appropriate to consider sections 4(b)(i) and section 15 and whether they have any relevance to the claim against the Appellant Employer. Essentially the issues raised by these sections are whether the Respondent Worker’s employment with the Appellant Employer was ‘employment to the nature of which the disease of occupational asthma was due’ (see section 15(1)(b)) and whether the Appellant Employer was the last employer who employed the Respondent Employer in that employment.
So far as is relevant the sections provide:
“4 Definition of ‘injury’
(cf former s 6 (1))
In this Act:
"injury":
(a) means personal injury arising out of or in the course of employment,
(b) includes:(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and,…”
“15 Diseases of gradual process—employer liable, date of injury etc
(cf former ss 7 (4), (4C), (5), 16 (1A))
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”
These sections were considered by the Court of Appeal in Crisp v Chapman (1994) 10 NSWCCR 492 (‘Crisp’). That case concerned a claim for compensation by a shearer suffering from an industrial disease in the form of marked spinal canal stenosis. The trial judge dismissed the claim on the ground that the stenosis was not “materially aggravated, exacerbated or caused to deteriorate by the work performed” in the two days of shearing done by the applicant with the respondent. The Court of Appeal noted that the claim was made on the basis that the injury was “a disease which is contracted by a Respondent Worker in the course of employment and to which the employment was a contributing factor” (per Mahony A-P at 496). Powell JA noted at 513 that where a claim is based upon sections 4(b)(i),9(1),15(1) and 33 of the 1987 Act:
“It is not necessary for him… to establish that the disease was actually brought about, or contributed to by the employment undertaken for the employer, or employers, during the 12 months preceding his disablement; it is enough if the disease is incidental to that class of employment so that it can be attributed to service therein”.
His Honour then quotes from Rich J in Smith v Mann (1932) 47 CLR 426 where his Honour said at 439-440:
“No doubt in the case of the ultimate [employer] as in that of other employers the employment must be one to the nature of which the disease of the Respondent Worker is due, but it is not necessary that the Respondent Worker should establish that the disease from which he is suffering was actually brought about or contributed to by the employment of the last employer”
His Honour also noted the following passage from Starke J at 443-444 in Smith:
“But the Act contains no limitation of time within which the disease must be contracted. It must arise, no doubt, from the nature of the employment. But it is not necessary that it should arise ‘out of the particular service of the particular employer sued’: it is enough if the disease is ‘incidental to that class of employment so that it can be attributed to service therein’ (Blatchford v. Staddon & Founds[6]). The compensation can be recovered only against the employer in whose employment the Respondent Worker is or who last employed him. And the employer by whom such compensation is payable may obtain contribution from the employers who during the twelve months preceding a Respondent Worker’s incapacity employed him in any employment to the nature of which the disease is due. The Commission thus appears to have proceeded upon an erroneous interpretation of the Act.”
The above passages are relevant to the present case. The Respondent Worker contracted the disease of occupational asthma as a result of his employment with Pegrin. The disease was caused by his exposure to ‘two pack paint’. Dr Clarke deals with this best in his report of 9 April 2001 where, after noting the Respondent Worker’s exposure to the paint with Pegrin, he said at pages two and three:
“These paints are known to liberate isocyonates and the year he was there would have enabled him to become sensitised to these products. The onset of symptoms is very typical of occupational asthma, particularly occurring at night. It appears he was [sic] continued to be exposed to these chemicals for several more years and then when the eventual diagnosis was made he was advised to leave the place of work.”
Dr Clarke then attributes the Respondent Worker’s occupational asthma to “the inhalation of fumes liberated from two pack paint preparations that occurred during his period of employment with Tegrin [sic] Pty Ltd” (page three). He further states in his report of 30 July 2001 that if his analysis of the work situation is correct “the substance that caused his occupational asthma is isocyanta and this is released as a vapour after the two pack system is activated”.
On the issue of whether the Respondent Worker’s employment with the Appellant Employer was “employment to the nature of which the disease was due” (section 15(1)(b) of the 1987 Act) all parties have made further submissions pursuant to a direction issued by me on 20 April 2006. That direction stated:
“The parties are invited to make written submissions, on or before 18 May 2006, on the following issues:
·In light of the evidence that the worker used ‘two-pack paints’ in the course of his employment with Appellant (see worker’s statement 9 September 2003 paragraph 27) together with the evidence of Dr Clarke about the effect of those paints (see Dr Clarke’s report 9 April 2001 page two and three), was the worker’s employment with the Appellant employment to the nature of which the disease of occupational asthma was due under section 15 of 1987 Act? The authorities of Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269 and Commonwealth v Bourne (1960) 104 CLR 32 would seem to be relevant.
·In view of the authorities of Crisp v Chapman (1994) 10 NSWCCR 492 and Grate Lace Pty Ltd v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365, whether section 15 of the 1987 Act applies to the claim against the Appellant.
·The applicability of P & O Berkeley Challenge Pty Ltd V Alfonso (2000) 49 NSWLR 481 to the present case in determining the “time of the worker’s incapacity” within section 15 of the 1987 Act.
·Whether there are any additional matters arising from the transcript.
Appellant's submissions to be filed and served within 14 days of the date of this direction and submissions in reply from the First and Second Respondents to be filed and served within a further 14 days after that.”
The Appellant Employer in its further submissions filed on 22 May 2006 submits that the Respondent Worker gave no history to Dr Clarke of using ‘two pack paint’ with the Appellant Employer and there is no evidence of the chemical constituents of that paint. Dr Clarke’s history is that the Respondent Worker worked for the Appellant Employer for nine months as a spray painter. Dr Clarke sets out in some detail the nature of ‘two pack paint’ and the chemical it liberates (see paragraph 61 above). The evidence about exposure to ‘two pack paint’ is as follows:
· the Respondent Worker’s statement of 9 September 2003 at paragraph 26 where he said “My duties [with the Appellant Employer] involved spray painting and sanding cars” and at paragraph 27 when he said “I would spray cars using a two-pack paint. I always wore a mask at this time however the chemical smell was always very strong and I sometimes felt like I was suffocating” (emphasis added);
· at paragraph 28 the Respondent Worker stated that he became sick again while working with the Appellant Employer. This evidence is not essential in order to establish that the employment was employment to the nature of which the disease is due (see Crisp above), but it is relevant as it tends to corroborate the assertion of further exposure, and
· the Respondent Worker’s oral evidence confirmed an increase in symptoms while working for the Appellant Employer (see transcript page eight line 40) and that he was exposed to paint fumes (see transcript page eight line 17).
Under ‘summary’ in his report of 9 April 2001 Dr Clarke states:
“It is my opinion, based solely on the history, that your client does appear to have developed occupational asthma and I attribute this to the inhalation of fumes liberated from the two-pack paint preparations that occurred during his period of employment with Tegrin [sic] Pty Ltd.”
Therefore, Dr Clarke attributes the Respondent Worker’s condition to the “inhalation of fumes liberated from the two pack paint preparations”. On the evidence of the Respondent Worker, accepted by the Arbitrator, he was again exposed to those fumes when he worked with the Appellant Employer. That evidence is sufficient to satisfy the test set down by Jordan CJ in Tame v Commonwealth Collieries Pty Limited (1947) 47 SR (NSW) 269 (‘Tame’) at page 272 where his Honour said:
“For the worker to succeed, it was necessary for him to satisfy the Commission that his employment with his last employer was of such a kind as to expose him to the risk of inhaling silica dust.”
In the present case Respondent Worker’s employment with his last employer (the Appellant Employer) was of such a kind to expose him to the risk of inhaling the fumes liberated from the ‘two pack paint’ preparations. Those paints, on the evidence of Dr Clarke, were “known to liberate isocyonates” which caused the Respondent Worker’s occupational asthma.
Reference is also made by the Appellant Employer to the judgement of Dixon CJ in Commonwealth v Bourne (1960) 104 CLR 32 (‘Bourne’) at page 39 where his Honour said:
“The word ‘nature’ is a wide as well as vague word and one must be careful not to narrow its application or attempt to reduce it to too much precision. But it does seem to refer to a connection between the ‘disease’ in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics.”
The submission is then made that Dr Clarke does not provide any evidence as to the “tendencies, incidents or characteristics” of the Respondent Worker’s employment with the Appellant Employer. That evidence is provided by the Respondent Worker in the passages referred to in paragraph 64 above. In the same case Fullagar J said at 40:
“It was not shown, nor, I should imagine, could it have been shown, that a characteristic or distinctive feature of employment as a taxation investigating officer was a tendency to cause arterial sclerosis or myocardial degeneration, or to aggravate or accelerate an existing condition of arterial sclerosis or myocardial degeneration. Such a tendency, so far as appears, was no more part of the nature of Mr. Bourne’s employment than of the nature of any other responsible employment.”
In my opinion the evidence establishes that it was an ‘incident’ or ‘characteristic’ of the Respondent Worker’s work as a spray painter with the Appellant Employer that he was required the use ‘two pack paint’. Those paints are known to liberate isocyonates which the Respondent Worker inhaled in the course of his work with the Appellant Employer. The inhalation of those fumes caused the Respondent Worker’s occupational asthma. It therefore follows that the employment with the Appellant Employer was “employment to the nature of which the disease of” occupational asthma was due and the Respondent Worker is entitled to succeed against the Appellant Employer under sections 4(b)(i) and 15 of the 1987 Act as it was the last employer who employed him in such employment.
Therefore, if I am wrong in my decision to confirm the Arbitrator’s decision under section 16 of the 1987 Act, I believe the decision can and should be confirmed by applying sections 4(b)(i) and 15 of the 1987 Act. Under section 15 it does not matter that the last relevant employment did not cause the incapacity. This issue was considered by the Court of Appeal in Grate Lace Pty Ltd t/as Grate LaceBricklaying Co v Theiss Watkins White (Constructions) Pty Ltd & others (1995) 12 NSWCCR 365 (‘Grate Lace’). In that case the Respondent Worker was a bricklayer who contracted a dermatological condition caused by exposure to an allergen in cement. His symptoms first appeared in January 1985 working as a brick layer for Grate Lace. He was off work for a period and paid compensation. He returned to work for Clover Bricklaying in June 1985 and was retrenched in August 1985. In that period he still had dermatological symptoms but had no time off. The Respondent Worker was then employed by Theiss as a bricklayer from 11 September 1986 until 26 November 1986 when he stopped work because of dermatitis. His claim was initially accepted by Theiss and paid until 26 October 1987. He then worked for Commercial Enterprises on light duties involving no exposure to cement. He claimed compensation from Grate Lace, Clover and Theiss. The parties accepted that the dermatitis was a disease of such a nature to be contracted by a gradual process.
The first hearing was before a Commissioner of the Compensation Court of NSW (‘the Court’). The Commissioner found liability against the last employer, Theiss. On a review before a Judge of the Court that decision was reversed and liability was found against Grate Lace. The reasoning adopted by the Judge was similar to the reasoning set out in the Appellant Employer’s submissions in the case before me. The Judge said that the disease manifested itself in the employment with Grate Lace and, therefore, the incapacity must have commenced then because the applicant was unfit for any work for a period and he was prevented from continuing in his employment without risk of acute disability if he was exposed to cement (see Sheller JA at 372).
Ultimately the case came before the Court of Appeal which unanimously restored the Commissioner’s decision. Justice Kirby noted that the Act talks of an employment “to the nature of which the disease was due” (page 368) and added:
“But I do not take that adjectival clause to have the consequence which Manser CCJ derived from it in this case. It is simply designed to excuse a completely irrelevant employment, e.g. a bricklayer temporarily working in a florist shop where there is no exposure to an allergen such as Dycromate, found in cement, which apparently triggered off the Respondent Worker’s recurrent bouts of dermatitis which, in turn, occasioned his incapacity in this case.”
His Honour found that the mistake made by Manser CCJ was “in endeavour to return to the assignment of liability according to a notion of true causation” (page 368). His Honour continued at 369B:
“…that approach overlooked the semi-arbitrary but very practical purpose of section 15 of the 1987 Act. That section obliged the Court to do what Commissioner Grayson in the initial hearing did, i.e. fix Theiss Watkins (Constructions) Pty Ltd (Theiss) with liability, as the last employer. That employer was no florist shop, but another employer in the bricklaying industry in whose employ the worker was exposed to the allergen which, once again, triggered off his dermatitis. It was therefore an employer which fell within the terms of section 15(1)(b) of the 1987 Act. It was the employer by whom compensation was payable.”
To use the expression used by Justice Kirby in Grate Lace, the Appellant Employer in the present case “was no florist shop”. The evidence established that work with the Appellant Employer required Mr Raymond to use ‘two pack paint’ and the evidence from Dr Clarke made it clear that the “inhalation of fumes liberated from two pack paint preparations” will cause and, in the case of the Respondent Worker did cause, occupational asthma. The above authorities lead me to conclude that if the Arbitrator was wrong in his application of sections 4(b)(ii) and 16 (and I do not believe that he was), then the award made can and should be confirmed under sections 4(b)(i) and 15 of the 1987 Act.
DECISION
The Arbitrator’s decision dated 24 March 2005 is confirmed.
COSTS
The Appellant Employer is to pay both the Respondent Worker’s costs of the appeal and the Second Respondent’s costs of the appeal.
Bill Roche
Acting Deputy President
28 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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