Estate of the Late Konstandinos Mormanis v Leader Commercial Kitchens
[2022] NSWPIC 57
•9 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Estate of the Late Konstandinos Mormanis v Leader Commercial Kitchens [2022] NSWPIC 57 |
| APPLICANT: | Estate of the Late Konstandinos Mormanis |
| RESPONDENT: | Leader Commercial Kitchens |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 9 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for death benefit by estate of kitchen assembly worker; the deceased worked with a number of solvents and also from time to time as a welder; after ceasing work with the respondent, he developed bladder cancer which ultimately caused his death; the respondent denied liability, alleging the deceased had not suffered a work-related injury; the dispute was whether the deceased’s employment relevantly caused his fatal bladder cancer; Held - the applicant had not discharged the onus of proof in establishing a causal connection between the deceased’s employment and his bladder cancer; award for the respondent. |
| DETERMINATIONS MADE: | 1. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Konstandinos Mormanis (the deceased) was employed by Leader Commercial Kitchens (the respondent) as an assembler/sheet metal worker involved in the manufacturing and installation of commercial kitchens.
The deceased first worked for the respondent from 1986 until October 1989. In or about late 1990 or early 1991, the deceased returned to work with the respondent. In his statement dated 7 April 2017, the deceased set out the nature of his duties, and indicated that he worked until approximately September 1996, at which time he suffered a neck injury in the course of his employment.
The deceased came to have neck surgery and remained on workers compensation until 2000. He did not return to work until 2004, when he bought a bait and tackle shop in Drummoyne. In July 2008, the deceased was diagnosed with bladder cancer, which metastasised and caused his death on 12 February 2018.
The deceased’s estate (the applicant) brings these proceedings seeking payment of the relevant death benefit. By section 78 notice dated 14 July 2020, the respondent’s insurer denied liability, alleging that the deceased had not suffered relevant workplace injury.
ISSUES FOR DETERMINATION
The parties agree that the only issue which remains in dispute is whether the deceased’s employment caused the injury which led to his death.
The parties agree the deceased’s estate has standing to bring the proceedings, and that he had no dependants at the date of his death.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the telephone conference before the Personal Injury Commission (the Commission) on 9 November 2021, leave was granted without objection to amend the Application to Resolve a Dispute (the Application) as follows:
(a) amend the deemed date of injury to 24 May 1996, and
(b) amend the injury description to read “urothelial cancer – as a result of exposure to fumes including welding fumes and Dalto Bond adhesive in the deceased’s workplace.”
The parties attended a hearing before me via telephone on 1 February 2022. On that occasion, Mr McManamey of counsel instructed by Mr Hobbs, solicitor, appeared for the applicant. Mr Barnes of counsel instructed by Mr Russell, solicitor appeared for the respondent.
EVIDENCE
Documentary evidence
10.The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents, and
(b) Reply and attached documents.
Oral evidence
11.There was no oral evidence called at the hearing.
FINDINGS AND REASONS
The cause of the deceased’s fatal bladder cancer
12.There are two bases upon which the applicant contends the deceased’s employment with the respondent caused the cancer which gave rise to his death. They are respectively exposure to a particular solvent product called Dalto Bond (later Suprasec 7113) in the course of the deceased’s employment and also exposure to welding fumes.
13.There is a variance in the evidence and expert opinion surrounding each of these potential causative factors, however, the legal test to establish causation is well-known.
14.The applicant bears the onus of proving that the deceased’s fatal bladder cancer is work-related. In determining the cause of an injury, the Commission must apply a commonsense test of causation. In the workers compensation context, the appropriate test for causation was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where his Honour said:
“The result of the cases is that each case where causation is an issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is now not accepted. By the same token, the mere proof that certain events occurred which predisposed the worker to subsequent death or injury, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement compensation.” (emphasis added).
15.The deceased made a statement dated 7 April 2017. He set out his employment history and exposure to relevant chemicals and fumes as follows:
“6. In 1986, I got a job at Leader Commercial Kitchens. The address was at 1 Schofield Street, Riverwood but later moved to 7 Schofield Street, Riverwood.
7. My position at Leader Commercial Kitchens began as a handyman but over the years I skilled myself in all aspects of the job and became a sheet metal worker. In that role, I was involved in manufacturing and the installation of commercial kitchens. One of the tasks, was to assemble the stainless-steel commercial kitchen benches using an adhesive. The adhesive used when I started was an adhesive manufactured by Bostik which did not have any adverse effect on me.”
16.The deceased stayed in that role until October 1989 when his father fell ill. Following the passing of both of his parents in 1990, the deceased returned to work with the respondent. From [11] and following in his statement, the applicant states:
“11. …the position was similar to the one I had before but with more authority, money and the use of a company car. On my return I noticed that they changed the adhesive being used to manufacture the stainless-steel commercial kitchen benches from the previous Bostik to a new product called Dalto Bond which is now called Suprasec 7113. I confirmed the name change with the company Addler located at Campbelltown who distributes the product.
12. I asked the boss why the change of the adhesive being used, he replied that it was cheaper and it had a fast drying time than Bostik.
12. First day back I started using Dalto Bond adhesive and began feeling ill. Inhaling the fumes would make my eyes water, my nose would run severely, and I would wheeze, cough and choke on my own phlegm. This reaction would happen every time I used the adhesive. I tried to avoid the interaction with the adhesive by delegating others to do the gluing, but the fumes would fill the entire factory and become impossible to avoid.
13. I asked the boss if he could purchase some 3M respirators for the staff, but he declined. I ended up purchasing my own 3M respirator and advised the other staff if they wanted to protect themselves from the adhesive fumes, they should purchase their own respirators.
14. The use and exposure to the Dalto Bond adhesive was in the assembling of the stainless-steel commercial kitchen equipment such as benches, countertops and display bars. Particleboard or sometimes plywood would be glued to the underside of the benches and countertops for strengthening purposes.
15. In some items, such as benches that were designed to have sink bowls or scrape holes, these items needed to be welded in after the gluing of the particleboard or plywood. During the welding process of these items, the heat from the welding torch would be in the glue causing a toxic vapour to rise into the face of the welder. This smoke/vapour would cause an even worse reaction than I previously mentioned. Apart from the runny nose, wheezing, coughing and choking on my phlegm I would also have difficulty breathing and dizziness with a severe headache.
16. Because of the design of welding helmets my 3M respirator that I purchased could not be worn during the welding process.
17. The adverse reaction to the adhesive went on for some time. Symptoms became worse, in early 1993 or 1994 I cannot remember exactly which year, I suffered a severe reaction to the adhesive and was taken to St George Hospital. I spent just under two weeks in hospital suffering from pneumonia. I was also diagnosed with asthma, a condition I never had before.
18 After some time off I return to work. That same day I asked the boss if he would buy a 3M powered airflow respirator welding helmet, that is designed to force filtered air into the helmet and keep out any toxic fumes being made by the welding process, once again he refused, stating if I wanted one that it should come out of my own pocket.”
17.The deceased stated that during the course of his employment with the respondent, he suffered a neck injury which kept him away from work and led him to have surgery to his neck in September 1996, following which he remained on workers compensation until 2000.
18.In or about 2000, the deceased received a settlement in respect of his neck injury, after which he assisted his brother in his business for some time. The deceased then purchased a charter fishing boat and began running a charter business, which he ended up selling as it was too difficult to operate with his neck injury. In 2004, the deceased bought a bait and tackle shop in Drummoyne.
19.In or about early 2008, the deceased went to his general practitioner complaining of difficulty urinating and blood in his urine. The deceased then consulted Dr Paul Sved, at Royal Prince Alfred Hospital who arranged a cystoscopy which showed the presence of a large tumour in the deceased’s bladder. That tumour was malignant, and the deceased was diagnosed with bladder cancer.
20.The question for determination is whether, on an analysis of all of the lay and medical evidence, the deceased’s employment with the respondent can be said to have caused the fatal bladder cancer.
21.For the reasons which follow, I am not satisfied that this is the case.
22.The applicant’s contention is that exposure to solvent and/or welding fumes caused the fatal cancer in the deceased. In relation to the solvent fumes, the difficulty with the applicant’s contention arises in the reports of its own expert, Prof Wakefield. In his first report dated 4 February 2020, Prof Wakefield noted the deceased suffered a number of significant comorbidities including obesity, hypertension, obstructive sleep apnoea and depression. He noted, however, that none of those factors are implicated in the aetiology or pathogenesis of bladder cancer. Importantly, the applicant was a non-smoker and was considered by both experts in the matter to be relatively young to have developed bladder cancer.
23.Prof Wakefield then examined the various potential carcinogenic chemicals contained within the products to which the deceased was exposed. At page 36 of the Application, Prof Wakefield noted:
“Dichloromethane is a widely used chlorinated solvent. There have been several epidemiological studies focusing on specific types of cancer related to exposure to this chemical. These studies have thus far not noted a significant association with liver, lung or bladder cancer. This does not mean there is not an association but rather that there have not been extensive studies examining the relationship between dichloromethane and bladder cancer in different high exposure occupations. Similarly, urethane has been anticipated to be carcinogenic in humans. This is based principally on experimental animal studies. Malignant tumours of the lung, liver, blood vessels and other epithelial structures have been observed in animal experiments exposed to urethane. There are no epidemiological studies that have evaluated the relationship between human cancer and exposure to urethane.” (emphasis added)
24.Prof Wakefield then noted an Israeli study of 150 male subjects with bladder cancer. He noted:
“Significant associations were demonstrated between certain occupational exposures and the risk to develop bladder cancer. These exposures were:
(a)organic solvents;
(b)aromatic amines and/or paints; and
(c)PAHs.
Similarly, significant associations were found between certain occupations and the risk of future TCC, such as metalworkers and welders.”
25.Having examined various studies and the material available to him, Prof Wakefield concluded:
“Applying the Bradford Hill criteria to chemical exposure and then observed affect, such as bladder cancer, has been widely used in public health research. These criteria include strength of association, consistency or reproducibility, specificity, temporality, biologic gradient or dose-response relationship, possibility in terms of mechanism of disease, coherence, experimental evidence and analogy between similar observed associations. Applying this criteria between exposure to adhesives, such as Suprasec 7113 and bladder cancer indicates that the evidence of causality in humans at this point in time is not proven. This does not mean that there is potentially a relationship between such exposure and bladder cancer but rather that insufficient evidence has been accumulated to support a causal relationship. Despite this and based on the evidence in this case it is more likely than not that exposure to Suprasec 7113 brought a causal role in the development of this man’s bladder cancer.” (emphasis added)
26.With respect to Prof Wakefield, his conclusion of a causal link between the deceased’s bladder cancer and exposure to Suprasec 7113, cannot, in my view, stand on balance with the contents of his own report. That report sets out a lack of proof regarding a causal link between the chemicals at issue and bladder cancer in humans.
27.I accept Mr McManamey’s submission that the Commission does not need to be satisfied to a level of scientific certainty in making its findings, however, Prof Wakefield himself has put the matter no higher than a statement there may potentially be an as yet unstudied relationship between the chemicals at issue and the onset of cancer in humans. He does not provide an evidentiary basis for his ultimate conclusion that there is such a causal link beyond simply asserting that it exists. As such, I am not persuaded by Prof Wakefield’s conclusion, which stands as a bare ipse dixit conclusion without satisfactory explanation.
28.Prof Wakefield has, quite appropriately, conceded that there is no proven link between bladder cancer in humans and exposure to Suprasec 7113. Having set out not only that conclusion but also examined the various individual active solvents contained within the relevant product and noted a lack of proof in relation to their causing cancer, the professor then goes on to nonetheless assert there was a causal role played by Suprasec 7113 in the deceased’s cancer.
29.The Commission is not a tribunal which adheres to the rules of evidence. Nevertheless, it is important that expert opinion be provided in a fair climate. That means an expert ought to provide a sufficient factual basis for any opinion asserted in their report. In this instance, the background cited by Prof Wakefield in fact contraindicates sufficient evidence being available to demonstrate the causal link between the development of the deceased’s bladder cancer and the chemical solvents to which he was exposed. Essentially, Prof Wakefield’s conclusion that there was such a causal link is limited to the very last sentence of his report, which stands alone and, on its face, contradicts his reasoning in the preceding pages.
30.I am not, on balance, satisfied on the applicant’s own case that the deceased’s exposure to Suprasec 7113 was a causative factor in the development of his bladder cancer.
31.Mr McManamey submitted that given the applicant was a young man who did not demonstrate any relevant comorbidities and was a non-smoker, then one might ask what else could have caused the bladder cancer. With respect, the evidence in support of the applicant’s contention of a causal link between the solvents used at the respondent’s workplace and the deceased’s cancer is threadbare at best, and it is insufficient to simply put a proposition that as there is no alternative explanation in evidence before the Commission that the one put forward by the applicant must be accepted. Such a contention may carry the day if the expert opinion behind it is provided in a climate where sufficient evidentiary grounds are present to support it. As indicated, this is not the case here given Prof Wakefield quite appropriates sets out the lack of evidence to link chemical exposure to bladder cancer, then simply states such a link is present.
32.The applicant’s “if not this, then what else” contention, in the circumstances of this case, in my view reverses the onus of proof. It is incumbent upon the applicant to satisfy the Commission that it has discharged the onus of proof in establishing the relevant causal link. On the face of the applicant’s own expert evidence, that causal link is not made out.
33.That view is, in my opinion, only strengthened when consideration is also given to the opinion of the respondent’s expert Dr Robertson. In his report dated 15 June 12020, Dr Robertson examined the constituent active parts of Suprasec 7113, namely Dichloromethane, Urethane prepolymer and Diphenylmethane diisocyanate. His observations are as follows:
“28.1.6. Dichloromethane
28.1.6.1. Dichloromethane, also known as methylene chloride, is an organochloride compound with a sweet aroma.
28.1.6.2. Of note, there are no studies that demonstrate that dichloromethane produces cancer in humans. There is some suggestion it may cause cancer in the liver
and lung of non-human animals and as such the World Health Organisation (WHO) states that dichloromethane ‘may’ cause cancer.
28.1.6.3. Of the cancers associated with exposure to dichloromethane in animals, there is no literature to suggest that dichloromethane may cause bladder cancer either in non-human animals or humans…
28.1.7. Urethane prepolymer
28.1.7.1. Urethane prepolymer is described as a polyol system consisting of a polyether/polyester mixture, together with diphenylmethane diisocyanate (MDI) or toluene diisocyanate (TDI).
28.1.8. Diphenylmethane diisocyanate (MDI)
28.1.8.1. A number of studies have examined the risk of cancer associated with occupational exposure to isocyanates. Whilst TDI is regarded as more toxic
that MDI and is referred to as a ‘potential carcinogen’ by the International Agency for Research on Cancer, with respect to carcinogenicity lung cancer has been observed in some studies however no strong association or consistent pattern has emerged.
28.1.8.2. In conclusion, it is assumed that Mr Mormanis was exposed on a regular basis to Suprasec 7113, daily of near daily, between 1991 and approximately September 1996 in the absence of any PPE.
28.1.8.3. Whilst it is likely that acute exposure to Suprasec 7113 resulted in irritation of points of contact such as eyes, nose and throat and explains his described symptoms when using Suprasec 7113, there is no current evidence that the ingredients of Suprasec 7113 cause or contribute to bladder cancer in humans more generally or urothelial cancer more specifically.
28.1.8.4. Whilst I note Mr Mormanis was a non-smoker and was young relative to the average age at which an individual may be diagnosed with bladder cancer, bladder cancer is more likely in white males and the presence or absence of other possible risk-factors are unknown and thus may also have been caused by other risk factors or as yet unknown factors given many cancers are caused in the absence of a known aetiology.
28.1.8.5. In the absence of any evidence of causation, I do not believe that the current evidence supports a conclusion that, on the balance of probabilities, the Deceased sustained an injury in the course of his employment with the Insured.”
34.Broadly speaking, Dr Robertson’s findings on the link between the relevant chemicals and bladder cancer are consistent with Prof Wakefield’s, in that he also states there are no proven links. The difference between the experts is that Prof Wakefield goes further and concludes such a link is present, without any basis for saying why that is the case.
35.It is also noteworthy that there is no mention in any of the treating material of Dr Sved to the deceased’s exposure to Suprasec as a causative factor in the development of the bladder cancer.
36.A similar finding is available in relation to the contention that the deceased’s exposure to welding fumes was causative of the bladder cancer. The respondent’s expert, Dr Robertson appropriately concedes that exposure to welding fumes on a consistent and lengthy basis can cause cancer, even bladder cancer such as that from which the applicant suffered. To that extent, the expert evidence favours the applicant’s contention. The difficulty for the applicant, however, is that its own lay evidence in the form of the deceased’s statement does not in my view sufficiently establish that his exposure to welding fumes was sufficiently lengthy and consistent as to ground finding consistent with the concession made by the respondent’s expert.
37.As can be seen from the paragraphs from the deceased’s statement which have been quoted at [16] above, he refers to “some” welding being undertaken. It is not clear from the deceased’s statement whether he was welding on a daily basis, and if so whether he did so for minutes, or hours at a time. We simply do not know.
38.I do not make that comment as a criticism of the applicant’s legal representatives, who are understandably relying upon the deceased’s statement taken before the potential link between welding fumes and bladder cancer became apparent to them. Likewise, no criticism can be levelled at the deceased for the lack of detail surrounding exposure to welding fumes, given that issue was not known to him at the time of the making of his statement.
39.Unfortunately, however, from the applicant’s point of view the lay evidence of the deceased is not sufficient to establish that he undertook welding duties with sufficient regularity and for so long a period as to fall within the appropriate concession made by Dr Robertson. In his supplementary report, Prof Wakefield refers in some detail to the deceased being exposed to welding fumes for many years without protective equipment in his occupation as a “welder.”
40.The difficulty with that view, however, is the evidence does not disclose how often the deceased carried out welding duties, and for how long he did so when required. At [20] of his supplementary report, Prof Wakefield says:
“I believe that the most compelling evidence for the association of Mr Mormanis work environment and his development of bladder cancer was related to the fact that he performed welding activities on a daily basis over a 5-year period which involved him
inhaling toxic potentially carcinogenic fumes without protective commitment. He obviously previously reacted to the fumes generated as part of his welding
activities and as a complication from this prolonged inhalation of carcinogens
developed bladder cancer.”
41.However, as noted, the deceased’s statement only refers to “some items” requiring welding. In my opinion, that statement does not provide sufficient basis to support Prof Wakefield’s view that the deceased carried out welding on a “daily basis over a 5-year period.” Rather, the opinion of Dr Robertson accurately summarises the state of the evidence when he says:
“If Mr Mormanis was welding daily for a period of 5 years without any respiratory protection, I concur with Professor Wakefield that that this can elevate the risk of bladder cancer in some individuals (see below for further discussion). That said, without knowing the frequency of welding and materials being welded, it cannot be established whether the risk was significant in the case of Mr Mormanis…”
42.Whilst the deceased was at one point hospitalised with respiratory distress associated with ingesting fumes, there is no evidence which suggests that episode is causally linked with the subsequent development of bladder cancer. Neither expert opines that such a single episode, or indeed an episode combined with some other exposure, is causative of the cancer. Rather, Prof Wakefield predicates his most recent opinion on the deceased being exposed to welding fumes on a daily basis. As indicated, there is no evidence the applicant was subjected to such exposure so regularly.
43.In order to satisfy the onus of proof, the applicant must satisfy the Commission on the balance of probabilities of the existence of the relevant facts necessary to discharge that onus. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (16 October 2008) (‘Nguyen’) where McDougall J (McColl and Bell JJA agreeing) said at [44]–[48]:
“44. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.
45. Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel (1959) 101 CLR 298 at 305 where his Honour said that ‘[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’. Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell (1982) 149 CLR 155 at 161–162, and Mason J (with whom Brennan J agreed) in the same case at 168.
46. It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.
47. In Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:
‘A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.’
48. On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.”
44.On balance, I am not satisfied the applicant has proven either the causal link between the relevant adhesive chemical and the onset of the deceased’s bladder cancer or of the deceased have been exposed for hours on end to welding fumes on a daily basis.
45.For these reasons, in my view the applicant has not satisfactorily discharged the onus of proof on the balance of probabilities, and accordingly there will be an award for the respondent.
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