Downer EDI Works Pty Ltd v McLuckie
[2014] NSWWCCPD 57
•9 September 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Downer EDI Works Pty Ltd v McLuckie [2014] NSWWCCPD 57 | ||
| APPELLANT: | Downer EDI Works Pty Ltd | ||
| FIRST RESPONDENT: | James Allan McLuckie | ||
| SECOND RESPONDENT: | Allen Brothers Asphalt Ltd (Deregistered) | ||
| THIRD RESPONDENT: | Emoleum Australia Ltd | ||
| FOURTH RESPONDENT: | CSR Emoleum Road Services Pty Ltd | ||
| FIFTH RESPONDENT: | CSR Emoleum Services Pty Ltd | ||
| SIXTH RESPONDENT: | Readymix Holdings Pty Ltd | ||
| SEVENTH RESPONDENT: | Readymix Emoleum Services Pty Ltd | ||
| INSURERS: | |||
| APPELLANT’S INSURER: SECOND RESPONDENT’S INSURERS: | Allianz Australia Workers Compensation (NSW) Ltd Mercantile Mutual Insurance on risk from 27 April 1977 to 30 June 1987 QBE Workers Compensation (NSW) Ltd on risk from 16 January 1987 to 1 January 1993 | ||
| THIRD RESPONDENT’S INSURERS: FOURTH RESPONDENT’S INSURER: FIFTH RESPONDENT’S INSURER: SEVENTH RESPONDENT’S INSURER: | CGU Workers Compensation (NSW) Ltd on risk from 31 December 1987 to 31 December 1995 QBE Workers Compensation (NSW) Ltd on risk from 21 December 1995 to 31 December 1996 CGU Workers Compensation (NSW) Ltd on risk from 1 August 1996 to 30 December 1996 Not known Rinker Group Ltd | ||
| FILE NUMBER: | A1-16157/12 | ||
| ARBITRATOR: | Mr P Sweeney | ||
| DATE OF ARBITRATOR’S DECISION: | 31 March 2014 | ||
DATE OF APPEAL HEARING: | 8 August 2014 | ||
| DATE OF APPEAL DECISION: | 9 September 2014 | ||
| SUBJECT MATTER OF DECISION: | Disease; skin cancer; claim for lump sum compensation and medical expenses; determination of deemed date of injury where two separate claims made; possibility of multiple deemed dates of injury; relevance of discontinuance of proceedings based on first claim; determination of employer who last employed worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease of skin cancer; principles in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 discussed; ss 4(b), 15 and 16 of the Workers Compensation Act 1987; difference between s 4(b)(i) and s 15 claims, on the one hand, and s 4(b)(ii) and s 16 claims on the other; apparent non-compliance with requirement to serve all relevant medical reports under cl 46 of the Workers Compensation Commission Regulation 2010 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Mr S Flett, instructed by Sparke Helmore | |
| First Respondent: | Mr J Wilson, instructed by Stacks The Law Firm | ||
| Second Respondent: | Mr N Studdert, solicitor, Sparke Helmore, in the interests of interests of QBE Workers Compensation (NSW) Ltd | ||
| Third Respondent: | Mr N Studdert, solicitor, Sparke Helmore, in the interests of CGU Workers Compensation (NSW) Ltd on risk from 31 December 1987 to 31 December 1995 | ||
| Fourth Respondent: | Mr N Studdert, solicitor, Sparke Helmore, in the interests of CGU Workers Compensation (NSW) Ltd on risk from 1 August 1996 to 30 December 1996 | ||
| Fifth Respondent: | No appearance | ||
| Sixth Respondent: | No appearance | ||
| Seventh Respondent: | Mr P Macken, solicitor, Leigh Virtue and Associates | ||
| ORDERS MADE ON APPEAL: | 1. The name of the seventh respondent to the appeal is amended to be Readymix Emoleum Services Pty Ltd. 2. Paragraphs 1, 2, 3, 4, 5, 6, and 7 of the Arbitrator’s determination of 31 March 2014 are revoked and the matter is remitted to another Arbitrator for re-determination. 3. Paragraph 8 of the determination is confirmed. 4. Each party pay his or its own costs of the appeal. 5. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration. | ||
INTRODUCTION
This appeal concerns a claim for lump sum compensation and medical expenses. The claim was based on the disease of skin cancer said to have been aggravated, accelerated or exacerbated due to the worker’s exposure to sunlight in the course of his employment with several different employers between 1971 and 2013. Whether the worker also relied, in the alternative, on an argument that he contracted the disease in the course of his employment is a matter of contention and is considered in the body of this decision.
The appeal raises two main issues. First, the identification of the correct deemed date of injury in circumstances where the worker made two separate claims for compensation, one in 2005 and one in 2008. Second, the determination of which of several employers was the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease (for convenience, I will refer to this phrase as “the aggravation” or “the aggravation injury”).
BACKGROUND
The claimant
The applicant worker, James McLuckie, the first respondent on appeal, has lived and worked at Forbes in western NSW for the whole of his adult life. From 1971 until 30 June 2013, he worked in various capacities in road maintenance. As most of his work was outside, or driving, he was regularly exposed to sunlight. Though his work was essentially for the same organisation, the legal identity of his employer changed several times over the years.
The employers
In the course of his work since 1971, Mr McLuckie has been employed by the following entities:
(a) Allen Brothers Asphalt Ltd, the second respondent on appeal and the first respondent at the arbitration, from 21 October 1971 to 31 July 1990;
(b) Emoleum Australia Ltd, the third respondent on appeal and the second respondent at the arbitration, from 1 August 1990 to 31 July 1996;
(c) CSR Emoleum Road Services Pty Ltd (the fourth respondent on appeal and the third respondent at the arbitration) and CSR Emoleum Services Pty Ltd (the fifth respondent on appeal and the fourth respondent at the arbitration), from 1 August 1996 to 31 March 2003;
(d) Readymix Holdings Pty Ltd, the sixth respondent on appeal and the fifth respondent at the arbitration, from 1 April 2003 and 10 April 2003;
(e) Readymix Emoleum Services Pty Ltd (Readymix Emoleum), the seventh respondent on appeal and the sixth respondent at the arbitration, from 11 April 2003 to 31 March 2006, (this company was sued as Readymix Emoleum Services but the name was amended by consent at the appeal hearing to add “Pty Ltd”), and
(f) Downer EDI Works Pty Ltd (Downer EDI), the appellant on appeal and the seventh respondent at the arbitration, from 1 April 2006 to 30 June 2013.
Representation
Mr Flett, of counsel, appeared for Downer EDI, Mr Wilson, of counsel, appeared for Mr McLuckie, and Mr Macken, solicitor, appeared for Readymix Emoleum.
Mr Studdert, solicitor, appeared for the following interests:
(a) Allen Brothers Asphalt Ltd (the second respondent on appeal), in the interests of QBE Workers Compensation (NSW) Ltd from 16 January 1987 to 1 January 1993;
(b) Emoleum Australia Ltd (the third respondent on appeal), in the interests of CGU Workers Compensation (NSW) Ltd on from 31 December 1987 to 31 December 1995 and QBE Workers Compensation (NSW) Ltd from 21 December 1995 to 31 December 1996, and
(c) CSR Emoleum Road Services Pty Ltd (the fourth respondent on appeal), in the interests of CGU Workers Compensation (NSW) Ltd from 1 August 1996 to 30 December 1996.
Though, at the arbitration, Moray and Agnew represented Allen Brothers Asphalt Ltd in the interests of Mercantile Mutual Insurance, they did not appear at the appeal. Neither CSR Emoleum Road Services Pty Ltd nor Readymix Holdings Pty Ltd has taken any part in the proceedings, either at the arbitration or on appeal.
Mr McLuckie’s duties
Mr McLuckie’s duties varied over time. From 1971 until 1982, he was a road-worker. His main task was to spray-seal roads. This work required him to spend all of his working time outside. While doing this work, he generally wore shorts and a blue singlet.
In 1982, Mr McLuckie was appointed the depot manager at Forbes. This work required him to spend about 70 per cent of his working life outside. While doing this work, he wore shorts and a short sleeved-shirt.
Between 1985 and 1991, Mr McLuckie worked as a supervisor of road crews, which required him to spend “close to 100 per cent” of his working time outside. Again, he wore shorts and sleeveless or short-sleeved shirts.
In about 1990, Mr McLuckie’s employer required employees to wear short sleeve shirts and shorts, as opposed to singlets and stubby shorts.
In 1991 or 1992, Mr McLuckie returned to the job of depot manager at Forbes. In this position, his work required him to spend about 60 per cent of his time outside.
Sometime after 1996, possibly not until 2000, the evidence is unclear, Mr McLuckie became the area manager of the road business, a position that required him to spend not less than 50 per cent of his time outside.
In or about 1996, his then employer introduced a policy that required workers to wear long sleeve shirts, trousers, hats, and to apply sunscreen. The new management enforced this policy and it was part of Mr McLuckie’s duties, as an area manager, to ensure staff wore protective equipment. Notwithstanding this policy, Mr McLuckie’s oral evidence was that he did not wear a hat or apply sunscreen at all times. Even if he did wear a hat and apply sunscreen, he said that he still felt the sun on his face.
Dealing with the period when Mr McLuckie worked as either the Forbes manager, or the manager of the Forbes depot, until he was retrenched in June 2013, Mr McLuckie said that if he did a ten-hour day, at least six hours of that would expose him to the sun. His duties out of the office included driving to distant road laying and road maintenance sites and working on the road when he arrived at a work site, performing managerial and supervisory tasks.
Mr McLuckie’s medical history to April 2005
Mr McLuckie began to notice spots, several of which were diagnosed as basal cell carcinomas (BCCs), on his face, head, neck, back and arms in the 1980s and early 1990s, for which he had treatment on several occasions.
In late 1995, Mr McLuckie was diagnosed with an aggressive metastatic squamous cell carcinoma (SCC) in his left parotid gland. On 22 December 1995, he underwent a total parotidectomy and modified radical neck dissection at the hands of Dr Christopher O’Brien. This surgery left him with no nerve function on the left side of his face and a problem with left eye closure, both of which required surgical repair. He underwent post-operative radiotherapy in 1996.
In 1999, Mr McLuckie had a BCC in the left preauricular region. He also developed a marked ectropion of the left eye for which he had a full thickness graft. In 2000, he had two further cancerous lesions removed, one from his face and one from his head.
In June 2004, because of deafness in his left ear, Mr McLuckie saw Dr Peter Bryan, ear, nose and throat specialist. Dr Bryan found that Mr McLuckie had mixed hearing loss in his left ear, which was consistent with his history of surgery to that ear in 1974 and the radiation therapy for his squamous carcinoma in 1996.
Dr O’Brien reviewed Mr McLuckie on 11 April 2005. Dr O’Brien recorded that a biopsy from Mr McLuckie’s left ear described a BCC, for which he recommended treatment with liquid nitrogen. Dr O’Brien stated that the “underlying cause of [Mr McLuckie’s] cancers has been exposure to the sun”.
The first claim – 17 November 2005
By letter dated 17 November 2005, Mr McLuckie claimed from Rinker Group Ltd (Rinker), the insurer for Readymix Emoleum, $26,000 in respect of a 19 per cent whole person impairment due to “solar induced skin damage”, plus $25,000 for pain and suffering under s 67 of the Workers Compensation Act 1987 (the 1987 Act). The 19 per cent was based on facial disfigurement (15 per cent) due to severe unilateral facial paralysis caused by the 1995 operation and by actinic skin disease (5 per cent) affecting Mr McLuckie’s body and limbs.
Served with this claim was a report from Dr Edmund Lobel, consultant dermatologist, who said that Mr McLuckie showed evidence of actinic elastosis (solar damage) to exposed parts of his skin, especially in the head and neck region. He added that actinic elastosis is “cumulative, with each exposure adding to the pre-existing level of elastosis in the skin”. (Mr McLuckie sent a similar claim to CSR Ltd on 3 September 2007. That company’s relationship to the named respondents has not been explained.)
In response to this claim, Rinker obtained a report from Dr Derek Davies, Mr McLuckie’s treating dermatologist at Orange Dermatology, dated 9 March 2006. Dr Davies, who had reviewed Mr McLuckie every three months for the previous two years, said that Mr McLuckie had severe actinic damage and required regular treatment with cryotherapy, shave excisions, standard excisions and curettage, and cautery for actinic keratosis, Bowen’s disease, BCCs and SCCs.
Dr Davies took a history that Mr McLuckie worked as a supervisor for road construction and sealing from October 1971 to 1986 and thereafter as a depot manager. During this time, Mr McLuckie had significant solar exposure without use of sunscreen, long sleeved shirts, long trousers or broad brimmed hats. Dr Davies said that as Mr McLuckie has “Fitzpatrick II skin type”, he was “highly susceptible to actinic damage”. Though personal protection measures were carried out since 1996, “the residual affect [sic] of his extensive solar exposure is ongoing”. Dr Davies concluded:
“As Mr McLuckie’s problem is specifically actinic (solar) damage leading to multiple skin cancers this is directly related to prolonged periods of unprotected sun exposure.
Mr McLuckie will need regular and ongoing review for treatment of skin cancers which will develop because of his past sun exposure and also to monitor for recurrence of the extensive cancer which was removed by Prof Chris O’Brien and was also a consequence of his skin cancer.”
Rinker also obtained a report from Dr Glen Croxson, ear, nose and throat surgeon, dated 29 March 2006. Dr Croxson first saw Mr McLuckie in January 1996 (not 16 January 2006 as stated in his report). The purpose of the referral was to reanimate Mr McLuckie’s face after the surgery by Dr O’Brien in December 1995. To that end, Dr Croxson operated on Mr McLuckie twice in 1996.
Dr Croxson said that, in the absence of any previous history of SCC on Mr McLuckie’s head and neck, it was reasonable to assume that the parotid SCC was at least in part related to his sun exposure between 1971 and the late eighties, when he worked as a supervisor for a road construction crew with no protection, no sunscreen and rarely with a hat.
On 7 August 2008, Mr McLuckie filed an application in the Commission (matter No 6127/08) against several employers in which he sought to have liability for the first claim determined. He discontinued these proceedings on 15 September 2008. The Commission has not been told why these proceedings were discontinued.
The second claim – 10 November 2008
By letter dated 10 November 2008, addressed to Downer EDI’s solicitors, Sparke Helmore, Mr McLuckie claimed lump sum compensation for a 36 per cent whole person impairment, and compensation for past and future hospital and medical expenses. The letter alleged a date of injury of “11 November 2005” “due to the nature and conditions of work” from 1971 and “ongoing” with the seven employers who ultimately became the seven respondents at the arbitration.
The letter alleged that Mr McLuckie suffered:
(a) injury to his skin, face, neck, and leg;
(b) injury to his mouth;
(c) loss of hearing, and
(d) injury to the eyes.
The “injury” to the skin, face, neck and leg was based on the solar induced skin damage assessed by Dr Lobel in September 2005.
The “injury” to the mouth was based on a report from Dr John Walker, consultant ear, nose and throat surgeon, dated 9 October 2008, in which Dr Walker assessed Mr McLuckie to have a 15 per cent whole person impairment as a result of severe unilateral facial paralysis. Dr Walker said that the injury related to a condition suffered in 1995 and assumed that the claim was against the employer at that time and not against Mr McLuckie’s current employer.
The hearing loss claim was based on a report from Dr Michael Hunter, ear, nose and throat specialist, dated 5 May 2008, in which Dr Hunter assessed Mr McLuckie to have a whole person impairment of 3.8 per cent due to loss of hearing secondary to the radiation received after the 1995 surgery.
The “injury” to the eyes was based on a report from Dr Michael Steiner, ophthalmic surgeon, dated 24 October 2008, in which Dr Steiner assessed Mr McLuckie to have a 9 per cent whole person impairment because of impaired vision due to the treatment of his parotid tumour in 1995 and the resulting nerve palsy.
Other proceedings in the Commission
In an application registered in the Commission on 20 December 2010 (matter No 10664/10), Mr McLuckie claimed lump sum compensation and hospital and medical expenses from several employers, again relying on the 17 November 2005 claim. These proceedings were discontinued on 11 February 2011.
In an application registered in the Commission on 16 March 2011 (matter No 2146/11), Mr McLuckie again claimed lump sum compensation and hospital and medical expenses from substantially the same employers, this time relying on the 10 November 2008 claim as establishing the date of injury. These proceedings were discontinued on 30 June 2011.
The legislation
Section 4, as it stood at the time applicable to the present claim, provided:
“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
(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) …”
Relevantly, ss 15 and 16 provide:
“15 Diseases of gradual process—employer liable, date of injury etc
(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.
…”
“16 Aggravation etc of diseases—employer liable, date of injury etc
(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.
…”
The current proceedings in the Commission
By an Application to Resolve a Dispute (the Application) registered with the Commission on 11 December 2012, Mr McLuckie claimed from each of the seven employers identified at [4] above the lump sum compensation particularised in the letter of 10 November 2008 plus $40,548.42 for past hospital and medical expenses and $55,000 for future hospital and medical expenses.
The Application pleaded the same particulars against each of the seven named employers. It alleged a date of injury of 10 November 2008 and described the injury as follows:
“Severe Acitinic [sic] Elastosis with Secondary Malignant and Pre-Malignant acitinic [sic] lesions, hearing loss, facial paralysis
The Applicant makes a claim that the injury is a disease or an exacerbation of such a nature as to be contracted by a gradual process in accordance with sections 15 and 16 of the Workers Compensation Act 1985 [sic].”
The injury was alleged to have occurred as a result of “[l]ong term exposure to sun in the course of work duties”.
The second, third and seventh employers, and their respective insurers, were represented by Sparke Helmore. Moray and Agnew represented the first employer, Allen Brothers Asphalt Ltd, in the interests of Mercantile Mutual Insurance and Sparke Helmore did so in the interests of QBE Workers Compensation (NSW) Ltd. They disputed liability on the several grounds. In essence, they asserted that Mr McLuckie was “suffering from a disease of gradual onset caused or aggravated by work” and that they were not liable because they were not the last relevant employer or insurer on risk.
They added, presumably in the alternative, at least so far as the seventh employer (Downer EDI) was concerned, that Mr McLuckie had previously commenced proceedings in respect of the same claim in 2005 (the first proceedings had not in fact been commenced until 2008) and the deemed date of injury was the date the claim for impairment was made (on 17 November 2005). Consequently, it was contended that liability “in those circumstances should lie with the employer and insurer on risk at the time that that claim was made”. The employer as at 17 November 2005 was Readymix Emoleum, the sixth employer in time and the seventh respondent on appeal, which is insured by Rinker.
In a s 74 notice dated 23 July 2008, Rinker disputed liability, presumably on behalf of Readymix Emoleum, on the ground that Mr McLuckie did not sustain any injury with it and, in the alternative, that any injury was in the nature of a disease process and Rinker was not the last employer for whom Mr McLuckie carried out work to the nature of which any disease was due. It also asserted that Mr McLuckie had not complied with the requirements of the legislation with respect to notification of injury and the claiming of compensation benefits.
Proceedings before the Arbitrator
The matter proceeded over two days. Mr McLuckie gave oral evidence on 4 December 2013 and was cross-examined. The Arbitrator also heard some submissions on that day and final submissions on 19 February 2014.
The main issues argued before the Arbitrator were, first, whether Mr McLuckie’s employment after 12 January 1997, the date on which s 9A commenced, was a substantial contributing factor to the aggravation of his skin cancer and second, the identification of the correct deemed date of injury, which would identify the employer liable.
Counsel for Downer EDI, Mr Baker, submitted that, given the change in policy in 1996, which required employees to wear protective clothing, Mr McLuckie could not establish that his employment after 12 January 1997 was a substantial contributing factor to the aggravation of his skin cancer.
On the second issue, namely, the correct deemed date of injury, Mr Baker submitted that there were two alternate dates, either when Mr McLuckie was incapacitated in late 1995 and into 1996, as a result of the surgery in December 1995, or 17 November 2005, the date of the first claim. Thus, so he argued, it was unnecessary to look to the claim made against Downer EDI on 10 November 2008.
Further, Mr Baker contended that the entirety of Mr McLuckie’s claim for whole person impairment resulted from an injury suffered by him prior to the December 1995 surgery and, certainly, prior to 17 November 2005. Conversely, he said that the evidence did not establish that Mr McLuckie’s impairments resulted from injury that occurred after that claim. He submitted that there was no medical evidence to suggest any worsening (of Mr McLuckie’s condition) since the 2005 claim.
I will refer to the Arbitrator’s reasons in more detail later in this decision, but at this stage it is convenient to note the following key findings and observations he made. Dealing with the nature of the injury, the Arbitrator said:
(a) it was not disputed that Mr McLuckie’s skin cancer was a disease that had been aggravated by his employment;
(b) the parties had “assumed” ([26]) that, in ascertaining which employer was liable to compensate Mr McLuckie, it was necessary to have regard to s 16 of the 1987 Act;
(c) exposure to sunlight after 12 January 1995 and up to the time of the termination of Mr McLuckie’s employment in 30 June 2013 was a substantial contributing factor to the aggravation of the disease of skin cancer;
(d) though Mr McLuckie suffered a large SCC in 1995, the “tenor of the medical evidence is that the continued exposure to sun thereafter is likely to have caused or contributed to the underlying elastosis of his skin” ([64]), and
(e) as a consequence of Mr McLuckie’s employment prior to 10 November 2008, he suffered an aggravation of skin cancer which notionally occurred on that date.
Dealing with the two dates of claim, the Arbitrator said that the letter of 17 November 2005 constituted a valid claim for permanent impairment compensation and that there were therefore two dates on which Mr McLuckie had made valid claims for compensation, 17 November 2005 and 10 November 2008. He said that, theoretically, this suggested that an award could be made against both Readymix Emoleum and Downer EDI.
However, as Mr McLuckie had only nominated the claim on 10 November 2008 as the relevant date of claim, and Mr Wilson only nominated Downer EDI on the basis of the notional injury of 10 November 2008, Mr McLuckie was entitled to prove that injury. The fact that he had made an earlier valid claim that gave rise to an earlier notional date of injury did not prevent Mr McLuckie from pressing the later claim. Mr McLuckie could “make an election” ([86]) as to the claim on which he relied and the claim on 17 November 2005 did not provide Downer EDI with a defence against the later claim.
The Arbitrator added that it followed from the language of s 16 that the employer at the deemed date of injury on 10 November 2008, Downer EDI, had to indemnify Mr McLuckie for his hospital and medical expenses.
Consistent with the Arbitrator’s reasons, the Commission issued a Certificate of Determination on 31 March 2014 in the following terms:
“The Commission determines:
1.On and prior to 10 November 2008 the applicant suffered injury arising out of and in the course of his employment to which his employment was a substantial contributing factor namely aggravation and acceleration of the disease of skin cancer.
2.The deemed date of injury for the purpose of section 16 of the Workers Compensation Act 1987 is 10 November 2008 when the applicant was employed by the seventh respondent.
3. Awards for the first, second, third, fourth, fifth and sixth respondents.
4.Remit the matter to the registrar for referral to an Approved Medical Specialist to certify the degree, if any, of whole person impairment as a result of skin damage and disfigurement of the face and body, loss of hearing, loss of vision and the difficulties with mastication and deglutition which notionally occurred on 10 November 2008 as a result of exposure to sunlight during the applicant’s employment prior to that date.
5.Seventh respondent to pay the applicant’s hospital and medical expenses pursuant to section 60 of the Workers Compensation Act 1987.
6.Liberty to apply at short notice in respect OF the terms of the referral to the Approved Medical Specialist and the issue of the applicant’s future medical expenses.
7. Seventh respondent to pay the applicant’s costs as agreed or assessed.
8.Certify the matter as complex. Order that there be an uplift of 30 per cent on the costs of the applicant, the sixth respondent and, so far as it is possible, the seventh respondents.
A statement is attached to this determination setting out the Commission’s reasons for the determination.”
Downer EDI has appealed.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding two deemed dates of injury under s 16(1)(a);
(b) disregarding 17 November 2005 as a deemed date of injury, because of a nomination or election by Mr McLuckie’s counsel, and
(c) finding that Downer EDI was the entity that last employed Mr McLuckie in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of Mr McLuckie’s disease.
Though the issues are, to an extent, interrelated, it is convenient to deal with the first two grounds under “deemed date of injury” and the last under “last relevant employer”.
DEEMED DATE OF INJURY
The Arbitrator’s decision
The Arbitrator doubted that the case law permitted a finding of a notional date of injury in late 1995, when there was no claim for weekly payments of compensation before the Commission and it was not clear from the evidence that Mr McLuckie had an entitlement to claim such compensation. This finding was consistent with Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 and has not been challenged on appeal.
He then held that the letter of 17 November 2005 constituted a valid claim for permanent impairment compensation for the purposes of the 1987 Act. His reasons were that:
(a) the letter made a claim for $26,000 for 19 per cent whole person impairment and for consequential pain and suffering under s 67, based on the enclosed medicolegal report from Dr Lobel;
(b) the nature of the injury was particularised in that letter as “solar induced damage” to Mr McLuckie’s skin;
(c) Rinker perceived that as a claim for lump sum compensation under the 1987 Act. It sought and received particulars from Mr McLuckie’s treating doctors and an authority to release medical information signed by Mr McLuckie;
(d) it seemed likely that Rinker also carried out investigations of the circumstances of Mr McLuckie’s employment and arranged for medical examinations with Dr Rae and Dr Bryan;
(e) Rinker also appointed solicitors, Vardanega Roberts, who wrote to Mr McLuckie’s solicitors requesting further particulars of the claim, and
(f) the letter complied with s 282 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
With respect to the submission that the discontinuance of the proceedings based on the 2005 claim “nullified” the 2005 claim, the Arbitrator said that there was no good reason to hold that a valid claim for lump sum compensation is nullified or defeated by the discontinuance of proceedings in the Commission. He said that it was impossible to extract an estoppel (from the fact of the discontinuance) that would defeat the earlier claim. Nor did he think that the discontinuance of the earlier proceedings could be characterised as an election by Mr McLuckie to abandon the claim he had made.
These findings have not been challenged in any meaningful way on appeal. In my view, the Arbitrator’s reasons, on this issue, were correct and disclosed no error.
On the issue of whether the 2008 claim “expunged” ([80]) the 2005 claim, the Arbitrator acknowledged that s 16 contemplates the possibility of multiple notional dates of injury. This statement has not been challenged and is consistent with, and well-illustrated by, Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; 16 NSWCCR 253. He added that, provided the worker continues in employment that is a substantial contributing factor to the aggravation of the disease, each notional date of injury ceases to have any legal significance once a claim is paid or determined.
The Arbitrator saw no reason why a similar approach should not be adopted in respect of a notional date of injury based upon the time at which a worker makes a claim for compensation. He added, at [83]:
“A worker employed over many years by different employers, in employment which aggravates a disease, may have multiple claims for permanent impairment compensation during his working life. The relevant date of injury in each case for the purposes of section 16 will be the date on which the worker makes a claim for the compensation with respect to the permanent impairment. Accordingly, different employers may be liable for discrete portions of the applicant’s whole person impairment.”
He added that that is the solution provided by s 16 in the present case. Mr McLuckie made two valid claims for compensation with respect to his injury. The first, in 2005, for whole person impairment based on facial and body disfigurement, was against Readymix Emoleum. The second, in 2008, for whole person impairment based on facial and bodily disfigurement and the additional impairments listed in that claim, was against Downer EDI. As Downer EDI was Mr McLuckie’s employer at the time of the second claim, it was liable for the injury.
The Arbitrator acknowledged that his reasoning might suggest, theoretically, that there should be awards against both Readymix Emoleum and Downer EDI. However, Mr McLuckie only nominated the claim on 10 November 2008 as the relevant date of claim on which he relied. When asked to address on which employer was liable to compensate his client, Mr Wilson nominated Downer EDI on the basis of the notional date of 10 November 2008 and did not rely on the “injury which arose by reason of the claim on 17 November 2005” ([85]).
The Arbitrator concluded that, having made a valid claim against Downer EDI on 10 November 2008, Mr McLuckie was entitled to prove that injury and the fact that he made an earlier valid claim did not prevent him from pressing the later claim. In that sense, Mr McLuckie could make an election as to the claim on which he relied and the earlier notional date, on 17 November 2005, did not provide Downer EDI with a defence against the 2008 claim.
Noting that it is not uncommon for a worker to have an entitlement against a number of employers in respect of an incapacity, impairment or loss, because multiple employers may have each materially contributed to that incapacity, impairment or loss, the Arbitrator said that a worker may succeed in a claim against any (one) employer who has materially contributed to his incapacity, impairment or loss. It is unnecessary that the worker proceed against each employer.
Submissions
Counsel for Downer EDI, Mr Flett, who did not appear at the arbitration, submitted that:
(a) the medical evidence supporting the claim in 2005 is “frozen in time” and there is no evidence of any further deterioration or any further lump sum claims that were made after that time that would attract a finding of a further loss;
(b) the claims made (for the injury to the mouth, the hearing loss and the eyes) were “consequential loss claims” based on the same loss that was claimed in 2005 and there was no “later loss after 2005 exposed in [Mr McLuckie’s] case”. All of the losses for which he claimed, in respect of permanent impairment, were “in existence in 2005” and “capable of being calculated as at 2005”;
(c) Mr McLuckie made a valid claim on 17 November 2005 and Readymix Emoleum acted on it (by arranging for medical examinations);
(d) once there is a valid deemed date of injury under s 16 (on 17 November 2005), the work of that section is done (Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31 (Collingridge)) and the Arbitrator erred in finding the second date of claim (on 10 November 2008) as the date of injury;
(e) as Mr McLuckie was employed by Readymix Emoleum at the time of the November 2005 claim, that is where “the claim for permanent impairment should be”;
(f) if there is a claim for medical (expenses) “that should flow from the date of injury”, which would be 2005 (and not 2008), and
(g) in the letter of claim of 10 November 2008, Mr McLuckie’s solicitors identified the date of injury as “11 November 2005” (which Mr Flett conceded should have been 17 November 2005).
In Downer EDI’s written submissions, prepared by Nicholas Read, barrister, Mr Read conceded that there may be more than one (deemed) date of injury when the disease provisions are invoked. However, he said that a finding of a further injury was dependent upon a finding of a further injury by way of aggravation of the disease (Sunbuster Sportswear Pty Ltd v Way [2006] NSWWCCPD 247 (Way). Once a date is deemed by s 16 that date does not change because of a later claim for lump sum compensation (Collingridge).
The Arbitrator’s statement that an applicant can elect a relevant date for the purpose of an aggravation of disease claim is incorrect in law and inconsistent with the purpose of s 16, which provides a statutory test for determining the deemed date of injury in multiple employer cases. A nomination or election by the worker as to which deemed date of injury he or she wishes to claim upon cannot interfere with the statutory test for determining the deemed date of injury.
Therefore, so Mr Read contended, the deemed date of injury should be the date of the first valid claim for compensation, namely, 17 November 2005. Once the Arbitrator found that a valid claim had been made on 17 November 2005, it was not open to him to find that the further claim changed the deemed date of injury. A finding of a further deemed date of injury is only permissible where there is a further injury by way of aggravation of the disease (Way). There is no evidence to support a finding that Mr McLuckie sustained an aggravation of his disease from 17 November 2005 to 30 June 2013. Accordingly, the fact of an additional claim for compensation does not change the deemed date of injury.
Mr Read noted that Mr McLuckie’s nomination, at the arbitration, of 10 November 2008 as the deemed date of injury was inconsistent with particulars provided in respect of the claim, which nominated the date of injury as being 11 November 2005. Further, Mr Read said that Mr Wilson provided no reasons for his nomination of 10 November 2008 as the deemed date of injury. In the absence of compelling reasons for ignoring 17 November 2005, the Arbitrator was incorrect in finding that the worker was entitled to make an election as to the deemed date of injury.
Mr Macken submitted that the only deemed date relied on by Mr McLuckie was 17 November 2008 and the Arbitrator was entitled to find that that was the correct date. Mr Wilson made no relevant submissions on this issue and did not dispute Mr Macken’s assertions.
Discussion and findings
I do not accept the submissions made on behalf of Downer EDI.
Just as it is for plaintiffs to plead their claims and to establish that any claimed impairment has resulted from the pleaded injury (Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 at [20]), so it is for applicants to do the same in the Commission (NSW Police Force v Gurnhill [2014] NSWWCCPD 12 at [114]).
While Mr McLuckie’s pleadings were most unsatisfactory, fairly described by the Arbitrator as “at best, unwieldy and, at worst, chaotic” ([10]), they identified 10 November 2008 as the date of injury and, more importantly, as the Arbitrator observed, that was the date on which Mr Wilson relied as founding his claim. Mr Wilson was entitled to plead and rely on that date. However, having done so it was then for him to establish that case. Whether he did so is considered below.
The submission that the medical evidence supporting the claim is “frozen in time” (that is, in 2005) and that there is no evidence of any further deterioration since that time is relevant to the argument that there is no evidence that Mr McLuckie suffered an aggravation injury with Downer EDI (discussed below), but does not prevent Mr McLuckie from relying on 10 November 2008 as the deemed date of injury. He was entitled to rely on the claim as pleaded and cannot be forced to rely on an earlier claim at the behest of one of the employers.
The submission that the claims made for the injury to the mouth and the eyes, and for hearing loss, were “consequential loss claims” does not prevent Mr McLuckie relying on the 2008 claim. This submission, like the submission noted in the preceding paragraph, goes to the issue discussed below, but is not relevant to whether the Arbitrator erred in finding a deemed date of injury on 10 November 2008.
Collingridge was decided on its own facts and it does not advance Downer EDI’s position. Those facts were that there had been a previous judicial determination (made before 1 January 2002) of the deemed date of injury for a claim for lump sum and weekly compensation. Because his condition deteriorated, without a further work aggravation, Mr Collingridge subsequently made a claim, after 1 January 2002, for additional lump sum compensation. It was held (at [83]) that once the disease provisions had been applied to determine the deemed date of injury for a claim for lump sum compensation, as they had been in the previous judicial determination, there was no scope to apply them again to produce a different date of injury with respect to the later claim for additional lump sum compensation.
The incapacity in Collingridge was a result of the first permanent impairment, which occurred at or around the time of the first claim, made prior to 2002. As Mr McLuckie’s 2005 claim was not the subject of an adjudication or finding, and did not result from any relevant claim for weekly compensation, it is irrelevant. More importantly, Mr McLuckie did not rely on that claim as the deemed date of injury.
The reference to “11 November 2005” (which it is accepted was intended to be 17 November 2005) in the letter of 10 November 2008 is of no consequence. The reference to November 2005 must be considered in light of the way the case was pleaded and run. Mr McLuckie ran his case on the deemed date of injury of 10 November 2008 and nothing in the evidence or the transcript of the submissions before the Arbitrator suggests the contrary. Therefore, the reference to the date of injury of November 2005 in the letter of 10 November 2008 is irrelevant.
The further submissions by Mr Read go to the identity of the last relevant employer and are considered below.
This ground of appeal fails. Given the way the case was argued, the Arbitrator correctly found the relevant deemed date of injury to be 10 November 2008.
LAST RELEVANT EMPLOYER
The Arbitrator’s reasons
It is convenient to first set out the Arbitrator’s reasons in some detail. He said, at [25]:
(a) that it was not disputed that Mr McLuckie’s skin cancer was a disease which had been aggravated by his employment (under s 4(b)(ii)) (this statement has not been challenged on appeal);
(b) as the only specialists who addressed the issue were at one in attributing an aggravation of Mr McLuckie’s skin cancer to his employment, the contrary position was untenable, and
(c) Mr McLuckie was therefore entitled to compensation.
The Arbitrator said that it had been assumed by the parties that, in ascertaining which of the employers was liable to compensate Mr McLuckie, it was necessary to have regard to s 16 of the 1987 Act. In essence, it was necessary to identify the employer who “last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration” of the disease prior to the deemed date of injury. This statement of the issue has not been challenged and was clearly correct.
Dealing with whether Mr McLuckie’s employment, after 12 January 1997 (the date on which s 9A took effect), was a substantial contributing factor to the aggravation, the Arbitrator noted the parties’ submissions and Mr McLuckie’s evidence of his exposure to sunlight from 1971 until he stopped work in June 2013. The Arbitrator’s summary of Mr McLuckie’s evidence, which I have essentially summarised at [8] to [15] above, has not been challenged.
The Arbitrator acknowledged that, in a s 4(b)(ii) case, it is only necessary that the employment be a substantial contributing factor to the aggravation and that it was not necessary to enquire whether the employment was a substantial contributing factor to the evolution of the disease process as a whole (Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88). This statement has not been challenge and is clearly correct.
Consistent with his earlier finding, the Arbitrator said (at [51]) that the injury suffered by Mr McLuckie was “the aggravation of his skin cancer by exposure to the sun while he was at work”. He said that it was an irrefutable fact that a portion of Mr McLuckie’s skin cancer was caused by exposure to sun in his teenage years and that his sporting and recreational activities, and the normal routine of daily life may have contributed to the development and evolution of skin cancer.
Dealing the aggravation issue in more detail, the Arbitrator said that he accepted Mr McLuckie’s evidence that, between 12 January 1997 and 30 June 2013, he spent “protracted periods of time exposed to the sun” ([52]). Based on Mr McLuckie’s evidence that, between January 1996 and 30 June 2013, he spent 50 per cent of his time out of the office, the Arbitrator inferred that, in this period, Mr McLuckie spent at least a quarter of his time exposed to sunlight. Moreover, the Arbitrator accepted Mr McLuckie’s evidence that “during a 10 hour day, at least six hours of that would be exposed to the sun” and that he was performing the same type of work up until 30 June 2013.
Considering the medical evidence, in the context of Mr McLuckie’s evidence of his exposure to sunlight at work between January 1996 and 30 June 2013, the Arbitrator continued:
“56.As far as I can ascertain, there is only one report of Dr Desmond Rae, a plastic reconstructive and hand surgeon [qualified by Readymix Emoleum], in evidence. It is a short report which assesses [Mr McLuckie’s] facial disfigurement as equating to 10 per cent whole person impairment and his bodily disfigurement as constituting eight per cent whole person impairment. Although the precise history of exposure taken by the doctor is not in evidence, it is apparent that the doctor attributed the applicant’s skin condition to his work. Dr Rae opines that the impairments were caused, in part, by exposure to sunlight between 1996 and March 2006. He says this:
‘Again I consider of all the figures I have given, a proportion of only one twentieth would be attributed to the work he was doing in 1996 to March 2006.’
57.The question of whether the work after 1996 was a substantial contributing factor to the aggravation of the disease is a somewhat different question to whether it contributed to whole person impairment. They are, however, closely related enquiries. Even in the absence of a full history, I infer from Dr Rae’s opinion that exposure to sun after 1996 made a real and important contribution to the applicant’s skin cancer.
58.A consideration of the other medical evidence also leads to that conclusion. Dr Stephen Shumack, a dermatologist, qualified by Sparke Helmore Lawyers, saw [Mr McLuckie] on 18 March 2008 and prepared a report dated 19 March. In that report the doctor obtained a history of exposure to sunlight. In answer to an enquiry as to whether the applicant’s employment had either aggravated, exacerbated or accelerated the disease process Dr Shumack said this:
‘I do indeed believe that the injury should be regarded as a disease of gradual onset which is aggravated by employment in direct sunlight. I therefore consider that [Mr McLuckie’s] employment has aggravated and exacerbated and accelerated the disease process in this individual’s case.’
59.Dr Shumack was aware that [Mr McLuckie] was provided with long trousers, a hat and sunscreen products from 1995. However, he nowhere suggests that [Mr McLuckie’s] employment beyond 1995 was not a significant contributing factor to the aggravation of disease. On the contrary, the doctor said this:
‘Sunscreen is a filter, rather than a total block. Given this man’s terrible sun damage in exposed areas, he should be considered permanently unfit for any outdoor work.’
60.In answer to an enquiry as to whether [Mr McLuckie’s] incapacity resulted from employment injury Dr Shumack said this:
‘Solar sun damage and the development of skin cancers is associated with total lifetime accumulated sun exposure. This starts in the childhood years and continues throughout life. I believe that Mr McLuckie has suffered the equivalent of 25 years of full time outdoor sun exposure. Given his current age of 60, I believe that this 25 years is equivalent to 50 percent of his lifetime sun exposure. This takes into account the usual increased exposure during the childhood years and is also [sic] his more protected workplace environment since the mid 1990’s, with him wearing a hat and sun screening products.’
61.This opinion of Dr Shumack is, in my opinion, only consistent with a conclusion that the employment was a real and important factor to the aggravation of the disease throughout the entire period of [Mr McLuckie’s] employment with the respondents.
62.I have quoted extensively from the opinions of Dr Rae and Dr Shumack, as those doctors were qualified by employers. But the opinion of Dr Lobel, the applicant’s qualified dermatologist is remarkably similar to Dr Shumack. While he attributed much of [Mr McLuckie’s] skin cancer to the work which he performed in his first 20 years in the road laying and maintenance business, he also opined that the applicant was “unfit for outdoor employment”. He said this:
‘However, actinic elastosis is cumulative, with each exposure adding to the pre-existing level of elastosis in the skin. Even wearing appropriate clothing, some ultraviolet radiation, either direct or reflected, will impact upon Mr McLuckie’s face. A broad-brimmed hat and sun filter cream will reduce the effects of this exposure significantly, but the cream must always be considered a filter not a block.’
63.I infer from Dr Lobel’s opinion that repeated protracted exposure to the sun was likely to have a deleterious effect upon the applicant’s condition. The duration and extent of his exposure to sunlight which he described in his evidence, in each of his several employments, is significantly greater than either Dr Shumack or Dr Lobel recommend in their reports. This is not a case where a worker was only employed for a short period by the employers who employed him after 12 January 1997. In particular, his employment with [Readymix Emoleum and Downer EDI] was for a period of years rather than weeks or months. In each case he performed a substantial part of his work outdoors exposed to the sun.
64.On the basis of this evidence, I have little doubt that exposures to sunlight after 12 January 1996 and up to the time of the termination of his employment on 30 June of 2013 was a substantial contributing factor to the aggravation of the disease of skin cancer. Although the applicant had suffered a large squamous cell carcinoma in 1995, the tenor of the medical evidence is that the continued exposure to the sun thereafter is likely to have caused or contributed to the underlying elastosis of his skin.
65.It was not argued that there were contributing factors, other than exposure to sunlight, to the aggravation or that a consideration of the matters set out in 9A(2) of the 1987 Act militated against this finding. I have, however borne in mind the matters referred to in the subsection in reaching my conclusions. The nature of [Mr McLuckie’s] works tasks and the duration of his employment strongly indicate that employment was a substantial contributing factor to the aggravation of his disease. I accept that his complexion and exposure to sun prior to commencing employment may have predisposed him to some degree of skin cancer. The propensity of his employment to seriously aggravate the condition, however, is unequivocally affirmed in the medical evidence.”
No party has suggested that the Arbitrator’s summary of the relevant medical evidence was not accurate.
Submissions
Mr Flett’s submissions, which I have summarised in relation to the first issue, are also relevant to the second issue. In addition, in his written submissions, Mr Read argued that it was not open to the Arbitrator to find that Mr McLuckie’s employment from 1 April 2006 to 30 June 2013 was a substantial contributing factor to the aggravation of his disease. He said that, for an aggravation to be found, it is necessary for there to be an increase in the symptoms and restrictions resulting from the disease.
While Mr Read conceded that there was sufficient medical evidence that Mr McLuckie’s skin cancer disease (what Mr Read referred to as the “primary injury”) was aggravated by employment in sunlight, he contended that the Arbitrator erred in finding that the employment with Downer EDI was a substantial contributing factor to the aggravation when there was no medical evidence of any increase or intensification of Mr McLuckie’s symptoms during his employment with Downer EDI.
With respect to what Mr Read called the “secondary injuries” – which Mr Flett called, more accurately, the consequential loss claims, namely, the hearing loss and facial paralysis – he submitted that the medical evidence does not support a conclusion that employment with Downer EDI increased or intensified those injuries. The medical evidence suggested that the injuries (and any aggravation thereof) were related to Mr McLuckie’s 1995 surgery.
Mr Read contended that the Arbitrator erred in failing to place sufficient weight on the following:
(a) Mr McLuckie’s evidence that from August 1996 his role involved spending only about 50 per cent of his time outside;
(b) Mr McLuckie’s evidence that from around August 1996 a policy was in place in relation to protection from the sun, which required staff to wear long sleeved shirts, trousers, wide brimmed hats and to apply sunscreen, and that that policy was enforced by management;
(c) Mr McLuckie’s evidence that staff were provided with protective equipment, and
(d) evidence from Mr Thompson, an employee with Downer EDI, who described in detail the systems in place for controlling and minimising the risk of injury due to sun damage and said that Mr McLuckie had a strong safety ethic.
In his oral submissions, Mr Flett did not rely on these matters but appeared to concede that Mr McLuckie’s employment with Downer EDI exposed him to significant sunlight.
In his written submissions, Mr Macken submitted that it was unnecessary for Mr McLuckie to demonstrate that work with Downer EDI caused his injury. All that was necessary was to demonstrate that Mr McLuckie was employed by Downer EDI “in employment to the nature of which the aggravation of the disease was due” (McDonald v MW & JM Riddiford [2014] NSWWCCPD 27 at [61] (McDonald)). Mr Macken contended that the evidence overwhelmingly supported a finding that Mr McLuckie’s work with Downer EDI was employment to the nature of which the aggravation of his disease was due such that Downer EDI had not established any error by the Arbitrator.
In support of the above submissions, at the oral hearing of the appeal, Mr Macken referred to evidence from Mr McLuckie as to his exposure to direct sunlight (while working for Downer EDI) and the evidence from Dr Shumack. He added that Dr Shumack’s evidence had to be read with the evidence from Dr Lobel and, when that was done, there was evidence to support the Arbitrator’s finding that Mr McLuckie suffered an aggravation injury with Downer EDI to which his employment was a substantial contributing factor.
Mr Wilson made conflicting submissions. He initially submitted that the case was run before the Arbitrator as an aggravation injury under ss 4(b)(ii) and 16, but later withdrew that submission and said that both sub-ss of s 4(b) were relied upon. However, he was unable to take me to any part of the transcript of the proceedings before the Arbitrator that supported that submission. Nevertheless, he maintained that it was implicit that he had relied on both sub-sections.
When asked to identify the evidence that establishes that Mr McLuckie suffered an aggravation injury with Downer EDI, Mr Wilson referred, in general terms, to the evidence from Mr McLuckie that he had been exposed to sunlight while working for that company.
Discussion and findings
In determining if a worker is entitled to compensation for an aggravation injury under s 4(b)(ii), it is necessary to ask (with appropriate modifications to allow for the nature of the current claim and the introduction of s 9A) the questions posed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 638, namely:
“(a) Was the applicant suffering from a disease?
(b) If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c) If so, was [the] employment a [substantial] contributing factor?
(d) If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?” (In the present case, as there is no claim for weekly compensation, the question is whether the claimed whole person impairment and medical expenses have resulted from the aggravation.)
As his Honour explained (at 639), there is an aggravation of a disease if it is made more grave or more serious in its effects upon the patient.
It has not been disputed that Mr McLuckie’s skin condition is a disease. Nor is it disputed that, as a result of his employment between 1971 and 2013, his disease was aggravated by his employment. The appropriate deemed date of injury is, for the reasons explained above, 10 November 2008.
The next issues are whether the impairment and need for medical treatment has resulted from the aggravation and the identity of the employer liable to pay the compensation. Downer EDI contends that Mr McLuckie’s impairments (and his need for hospital and medical treatment) cannot have resulted from an aggravation injury with it because they have resulted from the treatment received in 1995 and 1996, before he started work with it. Moreover, it contends, as it did at the arbitration, that there is no evidence that Mr McLuckie’s employment with it caused an aggravation of his condition and the Arbitrator erred in finding to the contrary. Both these submissions are correct.
When asked to identify the evidence of an aggravation with Downer EDI, Mr Wilson referred to Mr McLuckie’s evidence at the arbitration. That evidence provides no assistance on this issue. Mr McLuckie’s evidence was that he was exposed to sunlight when he worked with Downer EDI, but he gave no evidence that that work caused his condition to become more grave or more serious.
While Mr McLuckie gave evidence in his statement of 26 June 2011 that his problem was “ongoing” and that he “continuously” has “lesions popping up in the same areas frequently”, Mr Wilson did not rely on that evidence to establish an aggravation injury against Downer EDI. Even if he had relied on that evidence, it is difficult to see how Mr McLuckie’s whole person impairment, or his need for medical treatment, could have resulted from these lesions.
In support of the Arbitrator’s conclusion, Mr Macken relied on the evidence from Dr Shumack quoted by the Arbitrator at [58] (reproduced at [89] above). That evidence states that:
(a) Mr McLuckie’s injury should be regarded as a disease of gradual onset;
(b) the disease was aggravated by employment in direct sunlight, and, therefore,
(c) Mr McLuckie’s employment aggravated the disease process in his case.
The difficulty with this evidence is that Dr Shumack did not identify the aggravation that “the employment” caused and, more importantly, he did not identify the employer who employed Mr McLuckie in employment that was a substantial contributing factor to that aggravation. The doctor merely spoke in general terms about Mr McLuckie’s “employment”. That employment covered many years, with several different employers. Therefore, Dr Shumack’s evidence does not support a finding that Mr McLuckie’s employment with Downer EDI was employment that was a substantial contributing factor to the relevant aggravation.
Indeed, the Arbitrator did not address if Mr McLuckie’s employment with Downer EDI was a substantial contributing factor to an aggravation injury. His reasons focused on “the employment” generally and he concluded that Mr McLuckie’s exposure to sunlight after 12 January 1996 and up to 30 June 2013 was a substantial contributing factor to the aggravation of the disease of skin cancer. He did not identify the aggravation that allegedly occurred with Downer EDI.
If only one employer had employed Mr McLuckie between January 1996 and 30 June 2013, the Arbitrator’s finding may well have been unassailable. However, there were several employers in that period. To determine the last relevant employer under s 16, the Arbitrator had to determine the employer who, prior to 10 November 2008, “last employed” Mr McLuckie in employment that was a substantial contributing factor to the aggravation. There is no persuasive evidence that Downer EDI was that employer.
Even if it were accepted that Dr Shumack’s evidence provides support for the Arbitrator’s finding, there is no evidence that Mr McLuckie’s impairments, or his need for medical treatment, have resulted from any aggravation with Downer EDI. The passages the Arbitrator quoted from Dr Shumack and Dr Lobel establish that repeated exposure to the sun was likely to have a deleterious effect upon Mr McLuckie’s condition. They did not establish that Mr McLuckie suffered an aggravation injury with Downer EDI.
Mr Macken’s submission that it was unnecessary for Mr McLuckie to demonstrate that the work with Downer EDI caused his injury, which submission Mr Wilson adopted in his written submissions, was incorrect. The authority upon which he relied, McDonald, concerned a case under s 4(b)(i) not s 4(b)(ii). In a case under s 4(b)(i) (which must be read with s 15), it is not necessary for the worker to prove that his or her employment with the last relevant employer caused the injury.
As explained by Meagher JA (Bathurst CJ and Hoeben JA agreeing) at [18] in CSR Timber Products Pty Limited v Weathertex Pty Limited [2013] NSWCA 49; 83 NSWLR 433 (Weathertex), the following are legally indispensable in a claim under s 4(b)(i):
(a) that the worker contracted a disease in the course of employment and to which that employment was a contributing factor (s 4(b)(i));
(b) that the employment was a ‘substantial contributing factor’ to that injury (s 9A(1));
(c) that the disease was a disease of such a nature as to be contracted by a gradual process (s 15(1));
(d) that the worker made a claim for compensation in relation to that disease on a specific date (s 15(1)(a)(ii)), and
(e) that the employer from whom compensation is claimed was the employer who last employed the worker in employment to the nature of which that disease was due (s 15(1)(b)).
The law on the meaning of the phrase “employment to the nature of which the disease was due” is well established. As explained by Starke J in Smith v Mann [1932] HCA 30; 47 CLR 426 at 441:
“it was enough if his work with his last employer was of the same nature and character as the work to which the disease was due, and that it was not necessary to prove that it was the employment with his last employer that caused the ‘disablement’.”
His Honour added, quoting (with apparent approval) from Blatchford v Staddon & Founds (1927) A.C. 470, that it is “enough if the disease is incidental to that class of employment so that it can be attributed to service therein”.
To similar effect, Jordan CJ held in Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269 at 272:
“I think that ‘employment to the nature of which the disease was due’ means an employment of such a kind as to involve a risk to the employee of contracting the gradual process disease which is disabling him. In the present case, what is complained of is a disease contracted by a gradual process of the inhalation of silica dust. 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.”
However, s 4(b)(ii) must be read with s 16, which is in significantly different terms to s 15. Unlike s 15, s 16 states that compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation. This issue did not arise in McDonald because the worker in that case relied only on ss 4(b)(i) and 15. Thus, Mr McDonald did not have to prove that his employment with the last relevant employer caused an aggravation of his condition. (This issue, and the principles involved, is also discussed in Maclean and District Bowling Club Co-operative Ltd v Green [2014] NSWWCCPD 53 and StateCover Mutual Ltd v Cameron [2014] NSWWCCPD 49.)
While the pleadings in the present case referred to both ss 15 and 16, which suggests that reliance was placed on s 4(b)(i) and (ii), Mr Wilson was unable to take me to any part of the transcript of the arbitration proceedings where he expressly relied on s 4(b)(i). He nevertheless maintained on appeal that it was “implicit” that he had relied on both sub-sections.
CONCLUSION
It follows that the Arbitrator correctly identified the deemed date of injury to be 10 November 2008. With respect to the second issue on appeal, namely, the last relevant employer, while it may well be that, as a result of the whole of his period of employment, Mr McLuckie’s skin cancer was aggravated, on the evidence called, the Arbitrator erred in finding that Downer EDI was the employer who last employed Mr McLuckie in employment that was a substantial contributing factor to the aggravation. The question remains, what is to happen with the claim?
Mr Wilson’s submission that it was implicit that he did rely on s 4(b)(i) creates a difficulty in the ultimate resolution of this case. That is because Downer EDI has urged that, if it succeeds on appeal, there should be an award in its favour. If that submission is accepted, Mr McLuckie’s rights against that company are at an end. That would leave Mr McLuckie to pursue his claim against Readymix Emoleum, and the earlier employers, and to face the difficulties that that may entail in a disease case.
I note that Mr McLuckie did plead s 15 in his Application (which is only relevant if a s 4(b)(i) injury is alleged) and that, through no fault of the Arbitrator’s, that claim has not been determined. In all the circumstances, given that the Commission has a statutory duty to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 354(3) of the 1998 Act), it is appropriate that the case be remitted to another Arbitrator for re-determination. That is because Mr McLuckie’s claim has not been determined on its substantial merits.
It is up to Mr McLuckie’s legal advisers as to how they conduct the re-determination. However, I would have thought that, at a minimum, evidence would be tendered that deals with the terms of the legislation and addresses the matters identified by Meagher JA in Weathertex as being legally indispensable in a claim under s 4(b)(i), if Mr McLuckie wishes to rely on that sub-section. Naturally, if Mr McLuckie obtains further expert evidence, as I expect he will, the employers against whom the claim is pressed will also be entitled to obtain additional medical evidence.
I note, in passing, that one of the main difficulties with this claim is that the medical evidence obtained by Mr McLuckie’s legal advisers is directed at supporting a claim for common law damages. As a result, it has not addressed the terms of the legislation. That must be addressed. A further issue arises from the fact that Readymix Emoleum appears not to have complied with its obligation under the Workers Compensation Commission Regulation 2010 to serve all “relevant reports” (cl 46) (this is a reference to the apparent failure by Readymix Emoleum, and its solicitor, to serve all reports from Dr Rae). That obligation exists whether or not the report supports the reasons for the decision to dispute the claim (cl 46(4)). If that is correct, that is a most serious and unsatisfactory matter that will require investigation by the WorkCover Authority of NSW (see Chhong Heng Taing t/as The Arcade Pharmacy v Gauci (No 2) [2011] NSWWCCPD 74 and Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 where similar issues arose). The profession is reminded, yet again, of its obligation to comply with the Commission’s regulations.
As it is unclear how the case will be argued at the re-determination, and as the last employer issue has not been properly and finally determined, it is necessary to revoke the awards in favour of the other respondents to the appeal. That is because it may be that, if Mr McLuckie continues to rely on s 4(b)(ii), he may wish to argue, depending on the evidence tendered, that one of those respondents is the last relevant employer under s 16. The reasons in this decision have endeavoured to identify the potential problems associated with adopting that course. However, the future conduct of the claim is a matter for Mr McLuckie’s legal advisers. The issue of how the case is to proceed, and the state of the evidence, should be carefully considered at teleconference/s prior to the matter being listed for a further arbitration.
Last, though it was open to the Arbitrator to find that the correct deemed date of injury was 10 November 2008, he expressed that finding (at order 2 of the determination) in terms of Downer EDI’s liability under s 16. As that finding against Downer EDI must be revoked, so too must order 2.
DECISION
The name of the seventh respondent to the appeal is amended to be Readymix Emoleum Services Pty Ltd.
Paragraphs 1, 2, 3, 4, 5, 6, and 7 of the Arbitrator’s determination of 31 March 2014 are revoked and the matter is remitted to another Arbitrator for re-determination.
Paragraph 8 of the determination is confirmed.
COSTS
Though Downer EDI has failed on the deemed date of injury issue, it succeeded on the last employer issue. This has resulted in the Arbitrator’s determination being set aside. Given the way the case was presented on appeal, I believe the appropriate order is that each party pay his or its own costs of the appeal. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.
Bill Roche
Deputy President
9 September 2014
I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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