Durea v T.O.P Welding
[2018] VMC 8
•18 JUNE 2018
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No.H11505461
| JEFFREY DUREA | Plaintiff |
| v | |
| T.O.P. WELDING & CONSTRUCTION PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 21, 22 & 23 MAY 2018 |
DATE OF DECISION: | 18 JUNE 2018 |
CASE MAY BE CITED AS: | DUREA v T.O.P WELDING |
MEDIUM NEUTRAL CITATION: | [2018] VMC008 |
REASONS FOR DECISION
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Catchwords: Pulmonary Fibrosis – alleged exposure to metal dust, welding fumes and chemical fumes throughout course of employment between 1983-4 and 1990-2012. Pigeon fancier from 8 years of age – ‘Bird Fanciers Lung’. Whether employment is a significant contributing factor – conflicting lay evidence. Denial of liability in respect to claim for weekly payments and medical treatment expenses and an Impairment Claim.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Dimsey | Maurice Blackburn |
| For the Defendant | Ms Myers | Minter Ellison |
HIS HONOUR:
1 Mr Durea is 61 years of age and was employed with the defendant from 1983 in various roles and at various locations. He alleges that throughout the course of his employment he inhaled metal dust, welding fumes and chemical fumes which caused or significantly contributed to him sustaining pulmonary fibrosis. He lodged a WorkCover Claim dated 20 July 2015 for which liability was denied by Allianz on 21 August 2015 on the grounds that he did not sustain an injury which arose out of or in the course of his employment and his employment was not a significant contributing factor to any claimed injury.
2 Mr Durea also lodged an Impairment Benefits Claim dated 18 June 2016 which was also rejected by Allianz on 7 September 2016. He seeks an order that he is entitled to weekly payments and medical treatment expenses and also a declaration of liability in accordance with the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013.
3 Mr Durea tendered medical reports from his treating respiratory specialist, Ad Professor Sasse’ and the defendant tendered medico-legal reports from Dr Burdon, Respiratory Physician. Both specialists are of the opinion that Mr Durea suffers from pulmonary fibrosis. Initially, they were both of the opinion that his condition was equally caused by his industrial exposures as asserted by him and his long term hobby as a pigeon keeper which exposed him to pigeon protein as confirmed by his positive precipitin blood test results. This condition is known as ‘Bird Fancier’s Lung’. After being provided with contrary accounts of his industrial exposure and accepting those accounts as being accurate, Dr Burdon opined that Mr Durea’s pulmonary fibrosis is solely related to his exposure to pigeon protein and is not work related.
4 The medical evidence indicates that pulmonary fibrosis is a lung disease where lung tissues become damaged and scarred around and between the air sacs (alveoli) making it difficult for them to work properly. This can be caused by a multitude of factors.
5 Mr Durea gave evidence about his various roles with the defendant since 1983 and the nature and extent of his exposure to dust and fumes in these roles. The court conducted a ‘view’ of the workshops at the defendant’s premises at Alexanders Rd Morwell where he alleged most of these exposures occurred. The four workshops were spacious with high ceilings and appeared to be well ventilated. In support of his claim, Mr Durea called the following witnesses; Mr Wells, who he worked with as a trades assistant at Loy Yang Power Station between 1983 and 1984; Mr Evans, who worked with him in the workshops at the defendant’s premises from 1993-4 until 2011-12 and Mr Johnson who was employed as a boilermaker welder with the defendant from 1985 until 2000.
6 The defendant called evidence from Mr Pacunfkis, owner and director of the defendant company; Mr Krupa, who was employed for various periods as a boilermaker with the defendant from the late 1970s and then full-time from 2002; Mr Munckton, who has been employed with the defendant since 1989, initially as a boilermaker and then as a workshop supervisor between 1997 and 2007; and, Mr Vella who has been employed with the defendant as a crane driver-rigger from 1998.
7 The supplementary report from Mr Burdon indicates that he altered his opinion concerning the issue of causation based on statements he was given from Mr Forbes (who was not called to give evidence), Mr Krupa and Mr Munckton. The defendant also tendered photos of the workshop and yard taken at the ‘view’ conducted on 21 May.
The 1983 to 1984 period
8 Mr Durea gave evidence that he commenced employment with the defendant in approximately April 1983 as a trades assistant to Mr Wells at the Loy Yang A site where the framework for the building was being constructed. He told the court that he was assisting Mr Wells welding heavy steel plates onto ducts, joining the sections and installing lugs. He said that the welding tasks were performed by Mr Wells and that he used a wire brush to clean up the welds and used an electric grinder with a 9 inch disc. He said that this created dust and he also breathed in welding fumes as he was standing next to Mr Wells as he was performing the welding duties. Mr Durea gave evidence that the work was performed inside a building and sometimes inside a 1m x 1m duct which was dustier. He told the court that masks were not provided at that stage. He said that he performed these tasks day in day out for approximately 2 years until he sustained a serious back injury at work in July 1984 at the Loy Yang B site which resulted in surgery and him being incapacitated for all employment until approximately 1988-9. He told the court that he received workers compensation benefits during this period and his prolonged absence was also contributed to by the fact that following surgery he developed an infection.
9 In cross examination, he agreed that during this period he also worked with fitters and disagreed with the suggestion that he only occasionally performed trades assistant work. He agreed that he was required to perform whipper snipper work to keep the bottom yard clean but disputed that they were his main duties. He also disputed that he actually commenced work with the defendant in November 1983 rather than April 1983. Ultimately, he agreed with the proposition that 50% of his work was in the yard and 50% was performing work in the building. He agreed that part of his duties with Mr Wells included passing him the welding rods but he added that he was also required to perform grinding duties when working with Mr Wells. Mr Durea disagreed with the proposition that it was highly unlikely that both he and Mr Wells performed work inside a 1 m² duct. He did agree that it was possible that he remained off work from July 1984 until May 1990 as a consequence of his back injury.
10 Mr Wells gave evidence that he commenced employment with the defendant in the late 1970s as a boilermaker welder and continued working with them until the late 1980s and then retired from work in 2008. He said that he recalled Mr Durea working with him as a trades assistant at Loy Yang in the early 1980s. He told the court that his job required him to perform welding duties and Mr Durea would pass him the electrodes and use a 7 inch grinder to clean the welds. He said that the grinding work caused dust. He said that some of the air ducts they worked on were very large being approximately half the size of the court room and others could be between 1 and 3 m in diameter. He told the court that once the welding had been completed and the welds cleaned the ducts would be transported into the building for the boiler. He said that the work he performed was done in the yard which he described as a ‘paddock’ and some of it would be performed in the small workshop. He also said that it was not uncommon that they crawled into some ducts together to perform the work. Mr Wells gave evidence that facemasks were not used in the 1980s although they were available. He told the court that Mr Durea performed grinding work every day and that they worked together for “months”.
11 In cross examination, Mr Wells recalled that he only worked with Mr Durea for a “few months” until Mr Durea injured his back. He told the court that part of Mr Durea’s duties also required him to perform whipper snipping if he had nothing else to do. He said that he had various trades assistants working with him in the boiler but it was mainly Mr Durea who assisted him when he was working in the yard. He said that they ‘occasionally’ both crawled into the ducts to perform work together. He told the court that the grinding discs were abrasive and would create their own dust when used.
12 Mr Pacunfkis gave evidence that he has been one of the owners of the company since it started in 1976. He said that he ran the business with his father Eugene, who died in 1993. He told the court that the current workshop No.1 was constructed in the mid-1980s and then altered in the early 1990s including having a section of the ceiling raised. He told the court that workshop No. 2 was built in 1995, workshop No. 4 was built in 2005-6 and workshop No.3 was built in 2009-10. Mr Pacunfkis gave evidence that according to his recollection and a diary note he made at the time, Mr Durea commenced employment with the company in November 1983. He said at that stage Mr Durea was hired to another company who were in the process of constructing Loy Yang A. He said that in the early 1980s he was based at Loy Yang and his father was based mainly at their premises on Alexanders Road. He said that he would be present at Loy Yang most of the day unless he had meetings to attend to or he went to the Esso plant at Longford. He recalled that the first contract the company had with Esso was in 1981 and the company continued to hold that contract until 1998. He told the court that over this period the company grew in size from what he regarded as a small company to a medium-size company and that its relationship with Esso required the company to have strict occupational health & safety policies and they adhered to world best practices. He said that Esso demanded high standards and they conducted regular inspections. He gave evidence that Loy Yang A was divided into two areas being the construction site and the bottom yard which comprised approximately 30 acres where the boilers were stored.
13 Mr Pacunfkis told the court that Mr Durea’s duties at Loy Yang A in the early 1980s was as a Grounds Person on hire to Ikal. He said that he was required to perform whipper snipping duties and would perform work with tradesmen if others were absent. He said that he was also required to do brew work which required him to collect food from the canteen for the other workers. He said that he recalled Mr Durea working with Mr Wells in the yard whilst Mr Wells was performing welding duties. He also recalled Mr Durea sustaining a back injury in 1984 which caused him to remain off work until May 1990. He disputed the need for both Mr Wells and Mr Durea to perform any work together in a duct as he said the practice was for a ‘spotter’ to assist a welder when working inside a duct with the ‘spotter’ remaining on the outside. He agreed that Mr Durea would have been required to perform grinding work which he said would have occurred in the bottom yard and that it would have created dust, the amount of which would depend on how often it was used and the duration of use. He told the court that he did not believe Mr Durea would have used it very often.
14 In cross examination, Mr Pacunfkis told the court that there was steady growth in the company from when it commenced in 1976 and that growth increased significantly in the late 1980s and 1990s. He said at its peak the company employed 200 people on site at the power stations and approximately 24 people in the two workshops at Alexanders Road. He said that he would regularly visit all work sites and the company had eight supervisors at Loy Yang, two supervisors at the Longford site and one at Alexanders Road. He agreed that he was not aware of what all of his employees were doing every day. However, he said that as far as he was aware, in the period 1983-84, Mr Durea only worked with Mr Wells occasionally and for short periods. He said that Mr Durea was principally employed in the bottom yard at Loy Yang to perform maintenance and groundsman work. Whilst acknowledging that he may have assisted Mr Wells as a trades assistant, he was of the view that he did more whipper snipping work than trades assistant work. He told the court that this is what he had been told by others and from his own observations. In relation to dust exposure he maintained his view that there would have been very little dust exposure and if there was, it would not have occurred very often. He also told the court that in his opinion using a ceramic disc to grind would only result in minimal exposure to dust and it was very rare for a trades assistant to perform grinding work.
Mr Krupa 15 gave evidence that he has worked as a boilermaker since 1968 and was employed by the defendant in the late 1970s on and off over many years until he became a full-time employee in 2002. He told the court that he also became the Occupational Health & Safety representative in late 2004. He recalled meeting Mr Durea in the early 1980s whilst he was working for the defendant at Loy Yang A. He told the court that Mr Durea worked in the bottom yard and his role was to keep the grass down by using a lawnmower and whipper snipper. He was unsure of what other work he performed at that time. During cross examination, he agreed that it was hard to remember what duties people performed in the 1980s as it was so long ago.
The May 1990 to April 2012 period
16 Mr Durea gave evidence that when he returned to work in 1989-90 he was employed as a truck driver, yardman and cleaner at the Alexanders Road premises. (Other evidence indicates that he returned to work in May 1990). He told the court that at that stage there was only one shed in existence, being shed No.1 and that its roof was lower than what is in existence at the moment and that the office, brew room and toilets were contained within that building. He said that his role as a truck driver required him to deliver steel to Loy Yang A and Loy Yang B, cement works, brick works and the APM paper mill at Maryvale. He said that he would also collect steel from One Steel and in order to perform these tasks he was also required to operate a 6 tonne crane and a gantry crane when inside the workshop. Mr Durea also gave evidence that he would be required to deliver steel to Valicote P/L in Morwell being a company that specialises in removing rust from steel by a method of sandblasting. He said that he would be required to use an air hose on the steel objects prior to delivery in order to rid the object of dust and other substances. He told the court that prior to 1995 he did not usually wear a mask whilst performing this task. He recalled being provided with a paper mask when performing this task after 1995.
17 Mr Durea told the court that his cleaning duties required him to sweep out the workshops with a broom and also to put off-cut pieces of steel into 44 gallon drums. He said that both of these tasks created dust and he wasn’t provided with a paper mask to wear until approximately 1995. He gave evidence that he would be required to empty the drums into a large skip bin in the yard by use of a mobile crane. He said that he would attach chains to the drums or the drum cradle and would be required to perform this task up to 3 times per week depending on the volume of work. He said that initially the crane he used had an ‘open’ cabin which did not prevent dust exposure but later on the new crane had a closed cabin.
18 Mr Durea gave evidence that on average there would be approximately 12 employees situated in each workshed at the defendant’s premises and there could be up to 40 in busy times. He recalled that the roof height in workshop No.1 was raised in approximately 1993 or 1994. He told the court that as a consequence of the company securing the Esso contract there was an increased emphasis on occupational health and safety from 1995. He said that he was tasked with ensuring that the work sheds were cleaned and he would regularly clean the walkways with assistance from others and this could occupy him for between one and two days. He told the court that at the end of “big jobs” all workers would be engaged in a massive clean-up of the sheds to prevent contamination between steel products. He said that at these times there would be a considerable amount of dust created as a result of sweeping or use of the air compressors. He said that it was also his duty to clean the toilets, brew room and office in work shed No.4 on a daily basis. Mr Durea gave evidence that he was also required to clean what he referred to as “Big Bertha” which is a large welding machine. He said that he was required to sweep around it and use an air hose to remove dust and other particles.
19 Mr Durea gave evidence that another task he performed involved preparing tags for pipes which required him to work with 150mm x 35mm galvanised steel and he would use a metal stamp to label the tag which would also create dust.
20 He gave evidence that he was involved in a task known as ‘passivation’ or ‘pickling’. As I understood the evidence, this process involved applying chemicals/acid to steel surfaces in order to remove contaminants on and around the weld. Mr Durea told the court that he would undertake this task and also use a grinder and ‘buff wheel’ to clean the weld which would also create grinding dust which he would then clean up with a broom and shovel. Apparently as part of the process the surface would be cleaned with hot water and then an acid based paint applied to it. He told the court that the paste used smelt and that masks were only provided in 1995. He told the court that he purchased a full face mask with a canister but it was more suitable to prevent dust from being inhaled rather than preventing the inhalation of fumes. He also said he was the only one who performed this task until the defendant employed Mr Evans in 1994.
21 Mr Durea told the court that he began to experience chest problems in 1995 and experienced regular bouts of pneumonia and pleurisy each year thereafter. He said that he developed breathing problems in 2012 which has progressively worsened, particularly on exertion.
22 Mr Durea gave evidence that he continued to perform all of the tasks outlined until April 2012 when he sustained a left knee injury which incapacitated him for work for approximately 6 months. He told the court that he returned to work on a return to work plan in August 2012 but believed he only lasted a few months and during that time was given tasks which included shredding paper and cleaning the workshops. He told the court that his services were then terminated in May 2013.
23 In cross examination, Mr Durea disputed that it was only the roof height of the bottom 2-3 bays of workshop No.1 that was raised in the early 1990’s. He told the court that the ventilation system in workshop No.1 has been improved over the years and that the extraction van system sighted at the ‘view’ was not operated “that much” in the early days. He said that the extraction fan on the ceiling of workshop No.1 was installed after he ceased employment although the ‘ridge gap’ was present as depicted in the photo tendered by the defendant. He also told the court that the roller door of workshop No.1 was usually closed when it was windy outside and during the winter months.
24 Mr Durea disputed that when he returned to work in May 1990 that most of his duties involved truck driving. He told the court that truck driving duties were restricted to one or two days per week either collecting or delivering steel to Loy Yang A, Loy Yang B, cement works, brickworks, Energy Bricks and APM. He also said that during this period he was also required to work off-site. He said that the majority of his time was taken up cleaning the brew room, toilets and the office and workshop duties which involved drilling holes in metal in workshop No.1 which created dust, sweeping and cleaning pipes 3 m to 12 m in length by use of a blower to remove condensation and grit. He told the court that the tradesmen only commenced cleaning their own areas in the workshops after 1995. When questioned as to the frequency of cleaning the workshop floor he stated that it would depend on the condition of the floor and that prior to 1995 he would need to do it every day but once the tradesmen became responsible for cleaning their own areas in 1995 he would still be required to sweep the walkways, exit doors and around the drill and lathe in the workshops. Mr Durea also told the court that his cleaning duties were more intense when they had “major clean-ups” between jobs. He disagreed with the suggestion that these were infrequent and that when they occurred it would involve all employees.
25 Mr Durea disputed that all the flux/spillage from the welding machine referred to as ‘Big Bertha’ would be collected in a tray below the machine. He told the court that he would need to clean around the machine because the flux/spillage also gathered on the floor. He conceded that the amount of exposure was small as it was the welder’s responsibility to empty the tray of flux/spillage into a 44 gallon drum.
26 Mr Durea estimated that during the period 1990-2012 he worked as a trades assistant to a boilermaker or fitter off-site on approximately 30 occasions which included; Loy Yang B, Coal to Gas, Longford, Brickworks, Cement Works, Long Island Point Gas Plant and possibly APM.
27 In relation to the task of ‘passivation’ or ‘pickling’ he estimated that in the ‘early days’ he may have been tasked with that job for the whole week. When questioned as to how often he would perform this task between 1990 and 2012 he was unable to provide a definitive answer. He told the court that when he did perform this task he was provided with protective glasses, rubber boots and an adjustable facemask but not a respiratory mask all of the time. He said that when provided with a respiratory mask which contained a canister it was designed to prevent the inhalation of fumes and not dust and he did not believe that it was provided until 1995. He estimated that he performed this task on his own when building tanks approximately 5 times over the 22 year period between 1990 and 2012 but said that he also assisted Mr Evans on a further 7 occasions when Mr Evans was employed in 1994.
28 Mr Durea was referred to an Income Protection Claim Form that he completed on 17 June 2008 where he indicated that 50% of his work duties involved truck driving, 25% Crane driving, 20% operating a forklift and 5% performing yard work. He told the court that this time allocation was accurate in 2008 but was not an accurate description of his work allocation over the entire period from 1990 to 2012. He was also questioned as to the accuracy of his statement to Dr Sasse’ as contained in a medical report dated 10 December 2014 where it was recorded; He’s also had 40 years of industrial workshop exposure as a trades assistant including welding fumes, grinding, construction, cement Works, coal, energy brix, APM, spray painting and really the full gamut of industrial exposure. When it was put to him that he has not been employed for a period of 40 years as a trades assistant exposed to various substances he attempted to explain that history by asserting that he has had a trade for 40 years on the basis that a trades assistant is the same as a labourer and that prior to working with the defendant he worked as an apprentice plumber, salesman, clerical worker and labourer. When it was put to him again that his work history does not amount to working for a period of 40 years with industrial workshop exposure he responded by stating that it “depended on what part is included”.
29 Mr Johnson gave evidence that he was employed with the defendant from 1985 until 2000 as a boilermaker welder in the workshop. He said that occasionally he would work at Loy Yang for the defendant. He told the court that Mr Durea worked as a cleaner and ‘billy boy’ which required him to take orders and pick up lunches for employees and clean the brew shed and toilets. He said that when he was not driving the truck he cleaned the workshop by use of a broom and vacuum machine in order to sweep up dust and filings. He said that Mr Durea would also use a shovel to put the dust and filings in a bin. He said that this process stirred up the dust and he did not wear a mask whilst doing it. He also recalled that Mr Durea operated the mobile and overhead cranes in order to take material in and out of the workshop and said that the original mobile crane did not have a cabin. He told the court that he also recalled Mr Durea performing ’pickling’ duties prior to Mr Evans being employed. In cross examination, Mr Johnson told the court that in the later years of his employment he was required to clean up his own work area but he recalled that between 1985 and 1995 trades assistants would perform that role. He told the court he could not recall whether Mr Durea was working in 1985 but does recall him being there in the early 1990s. He told the court that when he started the company only had workshop No.1 and he thought the roof was raised and the separate brew room was set up in approximately 1991. From his recollection, he thought that Mr Durea’s duties between 1990 and 2000 involved 50% truck driving duties, 20% yard duties and 30% being in the workshop.
30 Mr Evans gave evidence that he commenced employment with the defendant in approximately 1994. He said that his role was to perform ‘pickling’. He gave evidence that this task required him to work on stainless steel tanks and pipes. He told the court that he would firstly hose down and clean the tank or pipe, then use a buffer or grinder to smooth the weld which would create a fine powder dust, then apply the ‘pickling paste’ with a brush and clean the tank/pipe with a gurney. He said that a number of the workers performed this task, including Mr Durea, when he was not performing truck driving duties. He recalled that Mr Durea performed this task quite often. He told the court that Mr Durea was also required to clean the workshop floor with a broom which had to be performed slowly because of the powdery dust. He gave evidence that Mr Durea would also be required to empty the waste into 44 gallon drums and use the crane to tip those bins into a skip bin. He said that Mr Durea was also responsible for taking brew orders, cleaning the brew room and was involved in the “big” clean-ups. He recalled that in the early years they were not provided with protective gear and in later years they shared masks between them as there were only two masks provided. He gave evidence that Mr Durea did not wear a mask when performing this job. In cross examination, he agreed that between 1994 and 2003 he was employed on a casual basis which meant there were periods where he was not working for the defendant at the Alexanders Rd site. He said he became a permanent full time employee in 2003. He disputed the suggestion that all employees were involved in cleaning the workshops for ‘major clean-ups’.
31 Mr Pacunfkis told the court that he suggested to Mr Durea whilst he was incapacitated for work due to his back injury that he obtain a truck driving licence so the company could re-employ him as a truck driver. He gave evidence that when Mr Durea returned to work in 1990 his duties required him to drive the new semi-trailer they had purchased in 1989 to deliver and collect steel from various locations. He told the court that this role also required him to load and unload the trucks by use of a forklift. He recalled that Mr Durea did not drive the crane until 1992 or 1993 as he did not have a crane driving ticket.
32 Mr Pacunfkis estimated that 85 to 90% of Mr Durea’s duties after he returned to work in May 1990 involved loading, unloading and driving trucks. He also recalled that in the late 2000’s the company purchased a new truck and trailer which was driven by Mr Durea. He told the court that as far as yard duties were concerned, Mr Durea was required to clean the mess room, brew room and toilets as well as taking the brew orders from the employees and ensuring that there was sufficient tea, coffee and milk in the brew room. He disputed the evidence given by Mr Durea that he was required to clean steel pipes by use of a high pressure hose at Valicote and said that was the painter’s responsibility. He also disputed the evidence given by Mr Durea that he was required to work as a trades assistant on approximately 30 occasions off-site between 1990 and 2012. He recalled that he may have been required to work on odd days if there were employees absent but that was a rare occurrence. He also disputed that Mr Durea was required to clean the flux/spillage from the welding machine referred to as ‘Big Bertha’. He told the court that the machine is a large automatic welding machine and that the flux falls into a drop tray which the operator then tips into a 44 gallon drum. He said the machine also has a vacuum attached to it which prevents spillage falling onto the floor. He said that Mr Durea never worked with this machine.
33 Mr Pacunfkis said that Mr Durea did minimal cleaning duties between 1990 and 2012. He told the court that the tradesmen and/or their apprentices were responsible for cleaning and they used brooms and power sweepers. He told the court that the yard crew may have done some cleaning but that was mainly restricted to cleaning up offcuts. He agreed that Mr Durea was required to empty the 44 gallon drums of debris and offcuts into skip bins situated in the yard but that was done by use of an overhead crane with the operator situated in the cabin 8 to 10 m away from the skip bin. He said this operation created minimal dust. He also told the court that Mr Durea was off work as a result of his back injury when they used the previous crane without a cabin to perform this job. He agreed that from time to time the company would perform a major clean-up of the site but all employees would be involved in this task. He gave evidence that the ventilation in workshop No.1 was adequate as it has a roof cleave, extractors, louvers and fans as has been the case for approximately 10 years. Whilst agreeing that Mr Durea did perform some ‘passivation/pickling’ tasks he stated that at all times when that work was performed Mr Durea and Mr Evans wore the appropriate protective gear which included; overalls, gumboots, gloves, eye protection and canister masks.
34 Mr Pacunfkis told the court that the company conducted weekly ‘tool box’ meetings and has done so since the mid 1980’s. He said that all employees are required to attend and he could not recall there being any complaint made about there being a dust/fumes problem.
35 In cross examination, Mr Pacunfkis told the court that after his father died in 1993 he spent more time at the Alexanders Rd premises and apart from performing office duties he would regularly walk around the yard observing his employees performing their tasks. He estimated he would walk a distance of 5 km per day. He disputed that he would not be aware of what every employee was doing every working hour of the day. He agreed that Mr Durea did cleaning duties in the workshops and took offcuts to the scrap bin but said that was only “some of the time”. He also said that although Mr Durea may have cleaned the workshops there were 2-3 other yardman who also performed that role. He told the court that 85-90% of his time involved truck driving. Mr Pacunfkis was adamant that when performing ‘pickling’ duties the employees were provided with a full array of protective gear which was used at all times and included: a protective suit, masks, overalls, gloves, boots and a face shield.
36 Mr Munckton gave evidence that he was employed with the defendant between 1989 and 2007 including being the workshop supervisor between 1997 and 2007. He told the court that the roof height of the last two bays of workshop No.1 was raised in 1991 or 1992 and the balance of the workshop roof height has remained the same since that time which he estimated to be 10 m. He said that over time additional workshops were constructed. Mr Munckton gave evidence that between 1990 and 1997, Mr Durea performed a variety of tasks including; truck driving, forklift driving, cleaning the brew room and toilets and taking brew orders. He said that Mr Durea would, on average, sweep the walkway in workshop No.1 once per month and that his hours were mainly spent performing truck driving duties. He said that major clean-ups occurred approximately twice per year and everybody would help on those occasions over a period of 3 to 4 hours. He told the court that Mr Durea was required to perform ‘passivation’ and that when he performed that role he wore the full protective gear which included a face mask with a canister, gloves, boots and overalls. He told the court that he never observed Mr Durea perform that task without wearing the protective equipment. According to his recollection, Mr Durea may have worked on 6 or 7 tanks with Mr Evans between 1989 and 2007. During cross examination, he agreed that grinding in the workshops causes dust which also gathers on the ground and that Mr Durea was involved in performing cleaning duties in the workshop. He agreed that as supervisor he had the responsibility to supervise up to 30 workers at any one time and agreed that he would be moving around the various workshops from day to day without specifically observing Mr Durea at all times. However, he added that as his supervisor he knew what roles he performed.
37 Mr Krupa told the court that during the period 1990 to 2012 he worked on and off for the defendant. He recalled that Mr Durea performed truck driving duties which included loading and unloading, cleaning brew huts and picking up the brew orders. He said that individual employees would clean up their own areas in the workshops. He recalled that Mr Durea was required to perform ‘passivation’ when Mr Evans was not available and protective gear was always worn by him when that task was performed. Mr Krupa told the court that he became Occupational Health & Safety representative in 2004 and he never received any complaint about dust issues. He told the court that all employees attended weekly toolbox meetings where these issues could be raised. He said that if Mr Durea was not occupied with his other duties he would sweep the workshops but there was a minimal amount to do. In cross examination, he told the court that he was responsible for 45 full-time and casual employees as Occupational Health & Safety representative and agreed that when he was performing duties in workshop No.1 he would not be aware of what tasks Mr Durea was performing in the other workshops. However, he said that he would regularly walk through all workshops to observe what employees were doing. He agreed that the task of grinding creates dust which required cleaning by use of a broom or vacuum cleaners. He also agreed that he had observed Mr Durea performing cleaning duties but said that it was only occasionally.
38 Mr Vella gave evidence that he has been employed with the defendant as a crane driver/rigger since 1998. He said that for the first 4 years of his employment he was employed on a full-time casual basis and spent some of his time at locations other than Alexanders Rd. He told the court that Mr Durea’s duties involved; taking brew orders, cleaning the brew room and toilets in the workshops, truck driving, including attending Valicote Pty Ltd and performing some ‘passivation’ tasks. He estimated that Mr Durea spent 60% of his time truck driving and 40% of his time performing cleaning tasks. He said that Mr Durea would only use a broom to clean the workshops “once in a blue moon” and only when he was not busy with other jobs. He gave evidence that when undertaking the ‘passivation’ job he would wear overalls and a full face mask with a canister when inside the workshop but only an “ordinary face mask” if he was performing the task outside. In cross examination, he agreed that 90% of his job involved outside work and he would not be aware of the tasks Mr Durea was performing inside the workshops.
Exposure to Pigeon Protein
39 Mr Durea gave evidence that he has kept pigeons as a hobby since he was 8 years of age. He said that at present he has 120 racing pigeons and 20 breeding pairs which he keeps in two lofts, the bigger one being 12 m wide and 4 m high with perches 2 m off the ground and the other approximately 8 m wide which has breeding pens. He also said that he has an outside Aviary where the birds can enjoy the sun and bathe.
40 Mr Durea told the court that the typical racing season is held every weekend between July and November. He told the court that he is responsible for cleaning the lofts and agreed during cross examination that Ad Prof Sasse’ recommended to him in 2015 that he stop engaging in this hobby because of his lung condition. He told the court that after he received this advice he commenced using a face mask when cleaning the lofts.
Medical Evidence
41 Mr Durea tendered numerous medical reports from his treating respiratory specialist, Ad Prof Sasse’ and the defendant tendered medical reports from Dr Burdon, Respiratory Physician who assessed Mr Durea on 5 August 2015 on behalf of Allianz.
42 In a report to Dr Dissanayake dated 10 December 2014, Ad Prof Sasse’ indicated that he saw Mr Durea in the early 2000’s due to an asthmatic condition. He reported that Mr Durea presented with fibrotic change (pulmonary) and was a bird fancier with ‘heavy industrial exposure’. Ad Prof Sasse’ reported that he obtained a history from Mr Durea that; “He’s had pigeons since the age of 8, he has 200 at the moment, cleans them out daily, wears a mask and does use a wet technique. He’s also had 40 years of industrial work shop exposure as a trades assistant including welding fumes, grinding, construction, cement works, energy brix, APM, spray painting and really the full gamut of industrial exposure”.
43 In a report to Dr Dissanayake dated 4 February 2015, he noted that a blood test of Mr Durea revealed strong positive for pigeon and budgerigar precipitins which was consistent with, but not conclusive of hypersensitivity pneumonitis (bird fanciers lung). Ad Prof Sasse’ noted that 20 to 40% of all asymptomatic individuals will have these precipitin lines although noted that Mr Durea had a strong positive. Ad Prof Sasse’ also noted that he recommended to Mr Durea that he stop keeping pigeons.
44 Ad Prof Sasse’ opined that Mr Durea’s lung condition was likely to be caused by a combination of industrial exposure and bird fanciers lung and it would be impossible to delineate between the two although the absence of ground glass and the sparing of the upper lobes was against it being bird fanciers lung.
45 In a report to Mr Durea’s lawyers dated 17 July 2015, Ad Prof Sasse’ reported that Mr Durea had over 200 pigeons in February 2013. (When giving evidence Mr Durea disputed that he had this many pigeons). Ad Prof Sasse’ noted that more recently Mr Durea wore a mask when tending to his pigeons and had set up a pigeon loft to minimise the inhalation of the powdered bird droppings which Ad Prof Sasse’ believed caused his pulmonary inflammation.
46 Ad Prof Sasse’ expanded on the work history given to him by Mr Durea by stating; Mr Durea also has significant industrial exposure to metal dust, welding fumes, diesel and pickling paste. He would be required to grind stainless steel in confined spaces along with ordinary steel and he would be required to sweep up the metal dust at the end of the day. Pickling paste (hydrofluoric acid, nitric acid and sulphuric acid) would be used to clean stainless steel inside tanks with limited ventilation and he was exposed over a two-year period. Furthermore there would be welding fumes present in the workshop along with diesel fumes. Confined working spaces and absence of extraction fans is noted. Ad Prof Sasse’ reported that Mr Durea suffers from moderate severity pulmonary fibrosis in the UIP pattern in the setting of significant industrial exposure, particularly metal dust as well as being a bird fancier. He noted that the difficult question is whether one or the other or both of these two important causes of pulmonary fibrosis are responsible or contributing to his condition. He went on to state that bird fanciers lung is classically an upper lobe disease, often with ground glass changes and honeycomb occurring late. He noted that hard metal dust may cause extensive reticular hyper attenuating areas and traction bronchiectasis along with ground glass attenuation or diffuse micro-nodular patterns. He noted the radiological manifestations of both bird fanciers lung and metal dust-industrial exposures can be quite protean in nature.
47 Ad Prof Sasse’ opined that it is impossible to delineate between these two potential courses of the pulmonary fibrosis and it is likely they are both equally responsible on the basis of a combination of industrial exposure and bird fanciers lung. He apportioned a 50% contribution of each cause.
48 In a further report to Mr Durea’s lawyers dated 8 September 2016, Ad Prof Sasse’ noted that on his most recent review of Mr Durea that his symptoms, CT scan result and lung function test indicated his condition was stable. Mr Durea’s lawyers questioned Ad Prof Sasse’ about the relationship between exposure to diesel fumes and the development of lung fibrosis. They provided him with research articles to consider, namely Bryne & Baugh and Ma. Ad Prof Sasse’ reported that in addition, he also considered the Baumgartner Report (1999) and Miyake Report (2004). He noted that the Baumgartner Report noted an increased relative risk for idiopathic pulmonary fibrosis in patients exposed to diesel exhaust, it being 1.4, but the confidence intervals are wide and between 0.9 and 2.2. He noted that the Miyake publication noted an increase relative risk of 9.55 for those exposed to metal dust. He also stated that the article written by Ma et al reports a cerium oxide and diesel exhaust nanoparticles do induce significant lung injury in specifically exposed rats. He also reported the article written by Bryne & Baugh noted this finding but commented that humans are unlikely to ever experience high levels of exposure comparable to those issued to experimental rats. He noted that they commented that diesel exhaust particles are largely non-fibrogenic, but they do not comment on the particular additive cerium oxide. After considering the articles, Ad Prof Sasse’ considered that the relationship between pulmonary fibrosis and diesel fumes exposure to be inconclusive.
49 In further reports dated 27 July 2017 and 25 January 2018, Ad Prof Sasse’ considered that Mr Durea’s condition was stable and not progressing.
50 Dr Burdon assessed Mr Durea on 5 August 2015. He was provided with the report prepared by Ad Prof Sasse’ dated 17 July 2015. Dr Burdon obtained a history from Mr Durea that: he started work for the defendant in about 1983 and was employed as a technical assistant at Loy Yang involved in many duties including welding, painting, and grinding the welded joints on pipes and other items which had been welded in order to complete the welding process and smoothen off rough edges etc. he told me that various types of steel were used, including standard steels, stainless steel and copper-nickel steel. He told me that the job was really quite dusty. He would also be involved in other duties such as cleaning up and general maintenance. In 1990 he was transferred to the workshop and began driving trucks. I understand that the driving duties involve the delivery of welded products, largely pipes and the like, to various customers including AMP, Amcor, Loy Yang, the local brick works and cement works. Whilst on site at these locations he would be exposed to various dusts related to the processes conducted on those individual sites. He would be involved in loading and unloading the trucks. Occasionally he would be on site at these locations assisting in various duties. Part of his duties at the TOP site would be cleaning up the workshops and cleaning stainless steel pipes with a ‘pickling paste’, which I understand to contain hydrofluoric acid, nitric acid and sulphuric acid. I understand that the pickling paste was often used in enclosed areas with limited ventilation and no exhaust fumes. Diesel fumes were also experienced during the course of his employment. He also visited the gas plant at Longford.
51 Dr Burdon noted that Mr Durea ceased work in April 2012 due to a work-related left knee injury and was told by Mr Durea that after this incident he felt tired and lethargic and was breathless on exertion. Mr Durea told him that after blood tests were performed he was diagnosed with suffering from chronic lymphatic leukaemia. Dr Burdon obtained a history from Mr Durea that he was a pigeon fancier and that he keeps his pigeons in a large spacious loft and wears a mask when he cleans out the loft. Dr Burdon stated that the clinical history as given to him by Mr Durea is consistent with him suffering from chronic lymphatic leukaemia and pulmonary fibrosis.
52 Dr Burdon noted that serological tests for pulmonary fibrosis were all normal except that there was a strong positive result to pigeon and budgerigar precipitins. On the basis of the history obtained of significant exposure to metal dust during the course of his employment and being a long time pigeon fancier with serological evidence of exposure to pigeons, Dr Burdon opined that although it is difficult to be certain as to the cause of an individual’s pulmonary fibrosis in situations where there are more than one potential causes, in the present case, Mr Durea had been exposed to metal dusts in the workplace and also to pigeon protein and on that basis he agreed with the assessment of Ad Prof Sasse’ that each exposure had made a contribution on a 50/50 basis. On the issue of capacity, he opined that from a respiratory point of view Mr Durea would be fit for a sedentary job but when taking into account his chronic lymphatic leukaemia and knee injury, it would affect his ability to perform work.
53 As previously indicated, Dr Burdon was subsequently provided with workmates statements in December 2017, more than 2 years after his initial examination of Mr Durea and the provision of his initial report in August 2015. He was provided with statements of Ken Forbes, Roger Krupa and Mark Munckton all of which were obtained on 3 August 2015. After reviewing these statements and accepting their accuracy, all of which apparently indicate that; they had no clear recollection of Mr Durea being exposed to grinding activities in the workshop; that his exposure to metal dust was incidental; that he was not involved in welding of any sort; that when performing ‘passivation’ he wore appropriate protective equipment including respirators with appropriate canisters and a full face shield; that there were appropriate and effective extraction systems within the workplace; and, that he was not required to sweep up metal dust at the end of the day, Dr Burdon altered his previous conclusion and opined that Mr Durea’s pulmonary fibrosis is related to his exposure to pigeon proteins and is not related to his employment.
Significant Contributing Factor
54 Mr Durea is required to prove, on the balance of probabilities, that his employment with the defendant between 1983 and 1984 and from 1990 to 2012 was a ‘significant contributing factor’ to the development of his pulmonary fibrosis.
55 When determining this issue, the non-exhaustive factors the Act requires the court to take into account are;
a. the duration of the workers current employment;
b. the nature of the work performed;
c. the particular tasks of the employment;
d. the probable development of the injury occurring if that employment did not take place;
e. the existence of any hereditary risks;
f. the lifestyle of the worker; and
g. the activities of the worker outside the workplace.
56 The words ‘contributing factor’ recognises that an injury may be caused by more than one factor. The inclusion of ‘significant’ necessarily means that where there is more than one factor involved and one of them is the worker’s employment, then its importance must be assessed in order to determine whether it is a ‘significant contributing factor’. There may be a number of ‘significant contributing factors’ but the court is still required to determine on the facts before it whether the worker’s employment was one of those ‘significant contributing factors’ to the cause of the injury.
57 Cases that have dealt with the meaning of ‘significant contributing factor’ include; Meddis v VWA[1], where Judge Rendit said: “I consider a broad meeting can only be given to the words ‘significant contributing factor’ as the facts of each case must be looked at in the light of its own circumstances and an assessment made factually whether the employment was a significant contributing factor to the happening of the injury. In this regard, I consider it means more than de minimis but less than a major or a dominant factor. Indeed, one can have several significant contributing factors which are unrelated but which play their part in the occurrence of the injury. I consider that it is basically a question of fact”.
[1] 24 April 1996
58 Additionally, in Allman v Major Furnace and Engineering Pty Ltd [2], Judge Strong said that ‘significant’ means “of considerable amount or effect”.
[2] Judge Strong 14 March 1997
Conclusion
59 The lay evidence presented to the court varied considerably not only in relation to the duties performed by Mr Durea between 1983-84 and 1990-2012 but also in relation to whether he was exposed to any dust and fumes and if so,, the nature and extent of that exposure.
60 At one extreme, Mr Durea painted a picture of having a 40 year history of significant industrial exposure to metal dust, welding fumes, diesel and ‘pickling paste’. At the other extreme, Mr Pacunfkis painted a picture of the defendant being extremely safety conscious with adherence to ‘world’s best practices’ and that Mr Durea was subject to “very little” and “intermittent” dust exposure and that after his return to the workforce in 1990, 85% to 90% of his work involved truck driving with “minimal” cleaning duties performed by him.
61 In general, I found Mr Durea to be an honest witness, although vague at times and displaying a tendency to exaggerate the nature, duration and extent of his exposure to dust and fumes whilst working for the defendant as depicted during cross examination when he was asked to clarify the history he gave to A Prof Sasse’ that he had “40 years of industrial workshop exposure”. The explanation he gave for giving that history to A. Prof Sasse’ was non-sensical.
62 It is understandable that the lay witnesses had difficulties recalling events that occurred between 1983 and 2012. It is trite to say that memories fade over time. This is particularly so when witnesses are not required to give evidence about a particularly significant or dramatic event that has occurred.
63 In relation to his period of employment between 1983 and July 1984, I accept the evidence of Mr Durea that he was required to assist Mr Wells whilst Mr Wells was performing welding duties at the Loy Yang site which necessarily exposed him to welding fumes. I also accept his evidence that he was exposed to metal dust when using a grinder. Mr Wells supported the evidence he gave however limited it to only working with him for “months” rather than a period of 2 years as stated by Mr Durea when he gave evidence. I find that during the period between 1983 and July 1984 when Mr Durea ceased work due to a back injury, he performed not only the maintenance duties as stated by Mr Pacunfkis and Mr Krupa but also assisted Mr Wells from time to time as a trades assistant.
64 Whilst the evidence suggests that Mr Durea’s main role when he returned to work in May 1990 was that as a truck driver, I find that he was required to perform various other tasks during this period of employment which from time to time resulted in dust and fumes exposure. Mr Durea identified the following specific tasks that led to this exposure, those being;
(a) cleaning the workshops;
(b) cleaning steel objects and pipes with an air hose to rid them of grit, dust and other debris;
(c) putting steel off cuts into 44 gallon drums;
(d) emptying the drums into skip bins by use of a crane;
(e) being engaged in major clean-ups;
(f) drilling holes in metal in workshop No.1;
(g) cleaning the spillage from the ‘Big Bertha’ welding machine;
(h) preparing tags for pipes and labelling the tags;
(i) whilst engaging in the ‘passivation’ or ‘pickling process’ on approximately 12 occasions over the 22 year period;
(j) when working ‘off site’ on approximately 30 occasions over the 22 year period.
65 Mr Johnson corroborated Mr Durea’s evidence in relation to the tasks he performed and his exposure in respect to tasks (a), (d) and (i). Mr Evans corroborated his evidence in relation to the tasks he performed and his exposure in relation to tasks (a), (d), (e) and (i). Their evidence was based on their observations of him actually performing these tasks.
66 Evidence to the contrary was given by Mr Pacunfkis who disputed that Mr Durea performed any of the tasks outlined in (b) and (g) and the number of occasions he was required to perform tasks (a) and (j). He agreed that Mr Durea did perform task (d) - but from inside the cabin with no dust exposure, task (e) and task (i) - but whilst wearing full protective clothing.
67 Mr Munckton agreed with the evidence given by Mr Durea, Mr Johnson and Mr Evans that Mr Durea performed task (a) - but only once per month, task (e) and task (i) - but whilst wearing full protective gear. Mr Krupa agreed with the evidence given by Mr Durea, Mr Johnson and Mr Evans that he performed task (a) – but only occasionally and agreed he performed task (i) – on limited occasions and with full protective gear being worn by him. Mr Vella agreed with the evidence given by Mr Durea, Mr Johnson and Mr Evans that he performed task (a) – but only “once in a blue moon” and (i) – and on occasions wearing only an “ordinary face mask”.
68 In weighing up the conflicting evidence it appears to me that greater weight ought to be given to the evidence given by those who were working with Mr Durea on a day to day basis and who regularly observed him performing the tasks he asserted he performed than the witnesses Pacunfkis, Munckton, Krupa and Vella whose actual observations of him in the workplace occurred less frequently.
69 The issue to be resolved is whether his exposure to dust and fumes between 1983 and 1984 and his occasional or limited exposure to dust and fumes between May 1990 and April 2012 amounts to his employment being a ‘significant contributing factor’ to the cause and development of his pulmonary fibrosis.
70 In considering the mandatory factors that are required to be taken into account under the Act in determining whether his employment amounted to a ‘significant contributing factor’ to his injury, I make the following findings:
a. The duration of his employment was lengthy;
b. The nature of his duties, whilst varied did from time to time expose him to dust and fumes;
c. The particular tasks that exposed him to dust and fumes were as outlined in paragraph 64;
d. The medical evidence indicates that it is possible that Mr Durea may have developed pulmonary fibrosis without any employment exposure to dust and fumes having regards to his hobby as a pigeon keeper;
e. There is no evidence of any hereditary risk factors that may have played a role in the development of the pulmonary fibrosis;
f. There is no evidence of any life style factors that may have played a role in the development of the pulmonary fibrosis. The evidence indicated that Mr Durea is a non-smoker:
g. It is undeniable that being a bird fancier from the age of 8 has contributed to the development of his pulmonary fibrosis.
71 The consideration of each of the factors that must be taken into account by the court when determining whether employment was a ‘significant contributing factor’ is not a mathematical exercise. It requires the court to assess the probative value of each relevant factor when arriving at a conclusion.
72 Ultimately, I am satisfied that Mr Durea has discharged the burden of proof that his employment with the defendant was a ‘significant contributing factor’ in the cause of his pulmonary fibrosis. I find that his exposure to metal dusts and fumes over the course of his employment was more than ‘de minimis’ and was of ‘considerable effect’ albeit neither the sole or dominant cause.
73 Accordingly, Mr Durea is entitled to compensation in accordance with the Act.
74 In relation to his work capacity, I accept that his current symptoms include shortness of breath, particularly on exertion and note that he complained to Dr Burdon in 2015 that he was short of breath and felt tired. I have also noted that A. Prof Sasse’ has indicated that his condition is stable. After taking into account his symptoms, age, place of residence, his chronic lymphatic leukaemia, prior back and knee injuries, I do not consider that he has a capacity for his pre-injury or suitable employment.
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