Hunt v Blackwood
[2014] ICQ 14
•20 May 2014
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Hunt v Blackwood and Anor [2014] ICQ 014
PARTIES:
LUFIA HUNT
(appellant)
v
SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR)
(first respondent)
BANDAG MANUFACTURING PTY LTD
(second respondent)CASE NO/S:
C/2013/22
PROCEEDING:
Appeal
DELIVERED ON:
20 May 2014
HEARING DATE:
25 February 2014
MEMBER:
Martin J, President
ORDER:
Appeal dismissed
CATCHWORDS:
WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – NATURE AND SCOPE OF APPEAL AND REVIEW – where the appellant’s purported notice of appeal was not competent – where the appellant, by his counsel, misapprehended the nature of the proceedings – where the appellant’s submissions were infected by this misapprehension – where the Court had no jurisdiction to award the relief the appellant sought – whether the appellant, by his counsel, presented an intelligible case on appeal
WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – INJURY, DISEASE OR DISABILITY – OTHER MATTERS – where it was the appellant’s case below that he suffered from Reactive Airway Dysfunction Syndrome (RADS) – where the Commission found that the appellant did not suffer from RADS – whether the Commission erred in finding that the appellant had not suffered an injury within the meaning of s 32 of the Workers’ Compensation and Rehabilitation Act 2003
WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – ARISING OUT OF EMPLOYMENT – where the appellant claimed to have been exposed to formaldehyde at work – where the Commission was not satisfied that the appellant had been so exposed – whether the Commission erred in its assessment of the relevant expert evidence
Workers’ Compensation and Rehabilitation Act 2003, s 32, s 560A, s 561
CASES:
Bell v Australian Meat Holdings [2003] QCA 209, considered
Davidson v Blackwood [2014] ICQ 8, cited
Davis v Blackwood [2014] ICQ 9, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied
Mater Misericordiae Health Service Brisbane Ltd v Q-Comp (2005) QGIG 144, citedAPPEARANCES:
KW Roche on behalf of the appellant, instructed by Nathan Lawyers
SP Gray on behalf of the first respondent, directly instructed
G Hampson on behalf of the second respondent, instructed by Piper Alderman Lawyers
On 12 May 2010 the appellant applied for compensation from WorkCover Queensland for a workplace injury he called Toxic Fume Inhalation Syndrome (this was also referred to in the proceedings as Reactive Airway Dysfunction Syndrome (“RADS”)). It is his case that he has suffered this injury as a result of his employment with Bandag Manufacturing Pty Ltd (“Bandag”), where he was involved in making tyre retreads. His duties at Bandag included using a chemical called Xiameter. It was heated, in an emulsion with water, to approximately 185 degrees Celsius and then used to help release cured tyre rubber from the moulds. This process resulted in the release of certain fumes. Mr Hunt says that in the course of his employment he was exposed to toxic fumes including formaldehyde.
WorkCover accepted the appellant’s claim. Upon an application by Bandag, Q-Comp set aside that decision. Mr Hunt’s appeal to the Commission was dismissed.
The appeal
The appellant purported to appeal under s 321 of the Industrial Relations Act 1999. This was incompetent. An appeal against the Commission’s decision can be brought under s 561 of the Workers’ Compensation and Rehabilitation Act 2003 (“the WCRA”).
The notice of appeal was inadequate. Premised, as it was, on a misunderstanding of the appellate process it listed the grounds of appeal as:
“(a) Error of law; and
(b) Excess and/or want of jurisdiction”
Those grounds demonstrate a further misunderstanding of the process. I do not need to deal further with this, or the other problems in the notice of appeal,[1] as the respondents did not object to the appellant correcting these fundamental errors and proceeding in accordance with the WCRA.
[1]The prayer for relief contained in the notice of appeal was equally irregular. The appellant purported to seek an order, seemingly in the nature of certiorari, setting aside the decision of the Commission and remitting the matter to be determined according to law. As the respondents properly contended, the Court does not have jurisdiction to make such an order, and must resolve the appeal by exercising the powers conferred by s 562 of the WCRA, which requires the Court to confirm or vary the decision of the Commission, or to substitute its own decision for that made below. There is no power to remit the cause to another court or tribunal upon allowing the appeal.
Section 561(3) defines the scope of the proceedings, which are to be “by way of rehearing on the evidence and proceedings before the … industrial commission, unless the Court orders further evidence be heard.” The appellant did not seek to adduce further evidence. Such a rehearing on the record is to be determined in the manner set out by the High Court in Fox v Percy.[2]
[2](2003) 214 CLR 118 at [22]-[24]. See also Davis v Blackwood [2014] ICQ 9; Davidson v Blackwood [2014] ICQ 8.
While the appellant need not demonstrate an error of law in the Commission’s reasoning, he must nonetheless demonstrate an error (or errors) of a distinct kind. Mere differences of opinion do not found an appeal; that is to say, where the Commission has made a finding reasonably open to it, this Court ought not, without more, disturb such a finding, given that it is necessarily at a disadvantage in doing so.[3] The appellant has put nothing before this Court that would suggest that the appeal should proceed otherwise than on this footing.
[3]Mater Misericordiae Health Service Brisbane Ltd v Q-Comp (2005) QGIG 144 at 145.
The procedural misconception that has already been referred to has shaped the appellant’s case on appeal. Rather than seeking to demonstrate mere error, the appellant has sought to demonstrate that the Commission’s reasons were infected by an error of law going to jurisdiction, a more rigorous standard than he was required to meet. Further, the appellant’s case on appeal had to be teased out during the hearing. Mr Hunt’s written submissions were based on the misconception about the appellate process referred to above.
What were the appellant’s grounds of appeal?
It is completely unsatisfactory that this Court should find itself in the position of having to hunt through the material to determine the grounds of appeal. Nevertheless, that is the result when an appellant fails at the outset to commence proceedings properly.
So far as it could be determined from the oral submissions the appellant relied on two grounds:
(a) That the Deputy President asked herself the wrong question about the injury,[4] and
(b) The Deputy President preferred the evidence of one expert to that of another and did not give sufficient reasons.[5]
[4]Appeal transcript 1-3.
[5]Appeal transcript 1-7.
In the appellant’s written submissions it is contended that the Deputy President erred:
(a) By not considering whether the appellant’s injury was work related after she had decided that he was not suffering from RADS,
(b) By finding that the appellant did not suffer from RADS, and
(c) By not finding that the injury was work related.
Finally, the appellant appears to contend that insufficient reasons were given. It is put this way in the written submissions:
“Under Chapter 13 Part 3 of the Workers Compensation and Rehabilitation Act, it is onerous [sic] on the Commission to resolve conflict where there are competing bodies of evidence. Here, the Commission has not adequately particularised the basis of its findings in relation to the medical evidence and the presence of Formaldehyde at the premises.”
The appellant must be taken to have sought to establish in the Commission that he had suffered an injury as defined in s 32 of the WCRA. In order to do so he must establish that (1) he suffered a personal injury, (2) that the injury arose out of or in the course of his employment, and (3) that the employment was a significant contributing factor to the injury.
What was the appellant’s case before the Commission?
Mr Roche, who appeared for the appellant in the Commission, said the following in his opening of his client’s case before the Commission:
“It’s not in contention that he claims to have suffered a work-related toxic fume inhalation syndrome, and it’s not in contention that over a period of time he suffer[ed] a personal injury.”
Those statements were not contested nor was there any contradiction of the statement that the “three things in contention” were:
(a) The nature of the injury suffered,
(b) Whether the injury arose in the course of employment, and
(c) Whether the employment was a significant contributing factor to the injury.
The case put before the Commission was summarised by Mr Roche in this way:
“ … it’s my client’s case that during his employment with Bandag Manufacturing as a CT press operator he was exposed to toxic fumes, in particular, formaldehyde which caused him to suffer an over period of time injury, from 2009 onwards, known as Reactive Airways Dysfunction Syndrome or simply RADS.”
What was the Commission required to decide?
The debate before the Commission was not whether the appellant had suffered a personal injury, but whether he was suffering from RADS. The respondents said he wasn’t suffering from that particular condition. That was the conflict which the Commission had to resolve. And that was the matter which was addressed in the expert reports.
A party in an appeal will, usually, be bound by way it ran its case in the tribunal below.[6] In this appeal the appellant sought to demonstrate that his “injury” was RADS. That is all he sought to show in that regard.
[6]Coulton v Holcombe (1986) 162 CLR 1.
The appellant did not sufer from RADS
The Deputy President held that: “medical evidence which has been accepted does not show that the Appellant suffered a RADS type symptom [sic].”[7] The specific characterisation of this injury was the first matter said by the appellant to be contentious.
[7]Decision at [89].
In Bell v Australian Meat Holdings[8] the Court of Appeal was called on to consider competing characterisations of an injury for the purposes of s 32 of the WCRA. Jerrard JA held that the fact an injury might bear different characterisations or labels did not mean that it was anything other than the same injury, for the purposes of the WCRA.[9] His Honour, of course, must be taken to have assumed that the competing descriptions refer to the same underlying symptoms.
[8][2003] QCA 209.
[9]Ibid at 5-6.
Much of the debate before the Commission was about the correct characterisation of the symptoms suffered by the appellant. The Commission heard medical evidence for the appellant from Dr Ruban Ratnam, a general practitioner, and from Dr Maurice Heiner, a thoracic and sleep physician. Associate Professor David McKenzie, a respiratory and sleep physician, gave evidence for Bandag, and Dr Ian Brown, a consultant respiratory and sleep physician, gave evidence for Q-Comp, which has since been replaced by Simon Blackwood, the Workers’ Compensation Regulator. Drs Heiner and Brown and Professor McKenzie were examined as to the appellant’s diagnosis.
Dr Heiner was of the view that the appellant suffered from either RADS, “mini-RADS” or “RADS like symptoms”.[10] Dr Brown considered that “at most” the appellant suffered from “mild irritant bronchitis which may be aggravated by fume exposure in the workplace.”[11] Professor McKenzie thought that the appellant did not have RADS, but noted that he “did have some symptoms which simulated asthma with cough and reports of dyspnoea.”[12] In the light of that evidence, it was open to the Commission to conclude that the appellant was not suffering from RADS. It is at that point that the appellant complains that the Deputy President should have found that he, nevertheless, suffered a personal injury. But there was no need to do so. The appellant’s case was that he had RADS, not some other unidentified condition. As I understand the manner in which the case was conducted that was not in issue. In any event, that much was demonstrated by the views of the three doctors. While they did not agree on a diagnosis, they identified some underlying, apparently mild, respiratory symptoms that should be taken to amount to a personal injury.
[10]Decision at [71].
[11]Decision at [75].
[12]Decision at [77].
No injury arose from the appellant’s employment
The difficulty for the appellant in reframing its case at this point is that there is a logical difficulty in saying that the Commission erred in not finding that the appellant suffered from a personal injury when it is necessary to have a conclusion about the nature of the injury. That conclusion is necessary because it is an essential part of the issue of whether the injury arose from the employment. It is not necessary that the condition have a “name”. It is essential, though, that there be a finding as to the nature of the injury.
The only injury the appellant sought to establish was RADS and it failed to do so.
Assuming, though, that the appellant’s arguments on this point have substance, it is necessary, then, to consider whether or not the “personal injury” arose out of or in the course of his employment, and whether or not the employment was a “significant contributing factor”. These questions depend, to a great extent, on whether or not it was demonstrated that the appellant was exposed to formaldehyde released upon heating the Xiameter with which he worked. Bandag has admitted that Xiameter was the material with which the appellant worked. It is a silicon based emulsion. Conflicting evidence was adduced on this point, and that has included the results of testing conducted at the workplace, albeit conducted using different methods and at different times.
Mr Gordon Stewart, an occupational hygiene consultant, industrial chemist, ventilation engineer and environmental engineer was called to give evidence by the appellant. Mr Alan Rogers, an occupational hygiene consultant, gave evidence for Bandag.
In his first report, Mr Stewart refers to the Material Safety Data Sheet (MSDS) given to Bandag in connection with the supply of the Xiameter, which stated that traces of formaldehyde may be produced if the material is heated above 150 degrees Celsius. In a second report, he refers to testing conducted by Bandag in February and March of 2010. In respect of this testing he states his view that, inter alia, (1) the testing sample sites were appropriate, (2) the tests demonstrated the presence of formaldehyde, (3) that the levels of formaldehyde were significant, and disclosed levels of formaldehyde in excess of 1ppm.
The testing referred to by Mr Stewart was conducted by Mr Alan Dyer, an employee of Bandag, in early 2010. Mr Dyer did not have any particular expertise in relation to such testing procedures, but seems to have followed the instructions accompanying the test kit. His evidence was that he received no further instructions in relation to its use. His evidence suggests that the kit was either a “91 Gastec Test Tube,” a “91L Gastec Test Tube,” or a combination of such tubes.[13] He took a number of readings using the kit, and recorded the results. There is no reason to doubt that this information has been properly recorded. It is also the case, however, that the tests were in the nature of preliminary inquiries, and Mr Dyer’s evidence was to this effect.[14] Under cross-examination, Mr Dyer was unable to positively state that the results showed that there was formaldehyde present. It was the uncertainty brought to mind by Mr Dyer’s lack of expertise, as well as the preliminary and “do-it-yourself” nature of the test that led the Commission to conclude that it could not be satisfied to the requisite standard that the appellant had been exposed to unacceptable levels of formaldehyde in the course of his employment with Bandag. This conclusion was open to the Commission.
[13]Statement of Alan Dyer (Exhibit 25) at [3].
[14]Statement of Alan Dyer (exhibit 25) at [21].
Mr Rogers’s report describes testing that Mr Rogers carried out at the site in 2012, some two years after the “preliminary” tests referred to by Mr Stewart. The tests were conducted while newly-installed ventilation apparatus was in operation, and also while it was switched off. Each of the tests conducted by Mr Rogers suggested that at that time (i.e. in 2012), formaldehyde was detected in the air around the CT Press, but in quantities not exceeding 0.005ppm. On any of the measures referred to by the experts in their evidence, such levels were acceptable and, in absolute terms, insignificant.
Mr Rogers also referred to a research paper written by Mr Daniel Filsinger and published in the American Industrial Hygiene Association Journal in 1995, which suggested that, if heated to 185 degrees Celsius, the main ingredient in the Xiamater that the appellant had been exposed to would release little if any formaldehyde. Mr Stewart stated his opinion that this article was “outdated”, but appears not to have elaborated upon the significance of the effluxion of time in considering the paper’s conclusions.
The Commission preferred the evidence of Mr Rogers (and, insofar as it is relevant, that of Mr Filsinger’s findings) to that of Mr Stewart for a number of reasons. First, it drew on actual testing that had been performed by heating Xiameter to certain temperatures.[15] Mr Stewart had conducted no such testing. Secondly, the testing by Mr Rogers was able to negative the influence of changes to the work environment made in the period between the appellant’s exposure to the Xiameter and the test by conducting testing with the ventilation system turned off.[16] The Commission considered the evidence of Mr Rogers to have been “clear and unambiguous.”[17] In response to Mr Filsinger’s findings, Mr Stewart was unable to do more than to assert that it was outdated. Without more, the Commission was correct in declining to accept such a view.
[15]Decision at [85].
[16]Decision at [86], [88].
[17]Decision at [88].
Were the reasons sufficient?
In respect of each finding made by the Deputy President she adverted to the relevant evidence and explained why she preferred certain evidence over other evidence. The reasons disclosed how she came to her conclusion and why. The Commission’s reasons were sufficient, and obviously so.
Conclusion
The appellant conducted his case with a particular end in mind, that is, he sought a finding that he suffered from RADS. On this point he failed. The Deputy President, as was appropriate, went on to consider the other elements which the appellant would have needed to establish. She held that: “Any injury that the Appellant suffers from is not one arising out of, or in the course of, employment.”[18] The appellant has not demonstrated any reviewable error in that finding.
[18]Decision at [93].
The evidence before the Commission was not capable of establishing, to the requisite standard, that the appellant was exposed to unacceptable levels of formaldehyde in the course of his employment, or that any such putative exposure caused his personal injury, however characterised. The Deputy President did not err in making a finding to that effect.
For these reasons the appeal must be dismissed.
I do not regard the appeal to this Court as having been instituted vexatiously or without reasonable cause and so, pursuant to s 563 of the WCRA, there should be no order as to costs.
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