Kiama Municipal Council v Manning - [2022] NSWPICPD 35

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Kiama Municipal Council v Manning [2022] NSWPICPD 35
APPELLANT:	Kiama Municipal Council
RESPONDENT:	David Manning
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W3975/21
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	31 August 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 25 October 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Sections 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987 – competing medical opinion as to the cause of the worker’s skin cancer – treatment of the medical evidence – main contributing factor within the meaning of s 4(b) of the Workers Compensation Act 1987 – adequacy of reasons – Beale v Government Insurance Office of NSW (1987) 48 NSWLR 430 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Catsanos SC, counsel, with Mr G Barter, counsel
Bartier Perry Lawyers
Respondent:
Mr J Wilson, counsel
Williamson Isabella Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr P Young
DATE OF Member’s DECISION:	25 October 2021

INTRODUCTION

The appeal is against a decision of a Member of the Personal Injury Commission made on 25 October 2021.
Mr Manning, the respondent to the appeal, is a 63 year old outdoor worker who was employed by Kiama Municipal Council, the appellant.
Mr Manning filed an Application to Resolve a Dispute (ARD) claiming weekly benefits from 15 May 2019. The injury alleged was aggressive cutaneous squamous cell carcinoma (SCC). The deemed date of injury of was 11 September 2018.
Mr Manning had been employed by the Council for 33 years and in 2018 he was diagnosed with SCC. He alleged that his duties included driving various machinery for the purpose of mowing lawns and maintaining the appellant’s parks and gardens.
The Member found in favour of Mr Manning and made an award against the Council, ordering the payment of weekly compensation for the following amounts and periods:
1. pursuant to s 36 of the Workers Compensation Act1987 (the 1987 Act) from 5July 2019 to 4October 2019 in the sum of $1,206.48 per week, and
2. pursuant to s 37 of the 1987 Act from 5October 2019 to date and continuing in the sum of $942.72 per week.[1]
[1] Manning v Kiama Municipal Council [2021] NSWPIC 432 (reasons).

CERTIFICATE OF DETERMINATION

The Member made the following findings in support of the awards that he made:
“1. In the course of his employment with the [appellant] between approximately 1986 and 15 May 2019 the [respondent] in working outdoors was exposed to ultra-violet radiation which resulted in acceleration or exacerbation of skin damage (acceleration) being injury within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987.
2. The [respondent’s] employment with the [appellant] between approximately 1986 and 15 May 2019 was the main contributing factor to the acceleration.
3. Since 5 July 2019 the [respondent] has had no capacity for work and has suffered economic loss.
4. The [respondent’s] incapacity for work…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Kiama Municipal Council v Manning and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWPICPD 35
Decision Date: 31 August 2022

CaseChat Overview and Summary

Kiama Municipal Council was the appellant in a dispute with the respondent, Manning, who sought workers compensation for skin cancer. The crux of the matter was whether Manning's employment as an outdoor worker constituted the main contributing factor to his skin cancer under Sections 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987. The case was heard in the New South Wales Civil and Administrative Tribunal (NCAT), specifically before Deputy President Snell, and subsequently appealed to the Court of Appeal.

The legal issues central to the case were whether the Member of the Tribunal adequately addressed the competing medical evidence on the causation of Manning's skin cancer and whether the Member's reasons were sufficient in determining the main contributing factor to the aggravation of the injury. The appellant argued that the Member failed to properly consider certain pieces of evidence and did not adequately explain the basis for rejecting the opinion of one of the medical experts. The respondent, on the other hand, contended that the Member's reasons were sufficient and correctly identified the shortcomings in the rejected evidence.

Deputy President Snell examined the issue of causation by evaluating the evidence overall, rather than relying solely on medical opinions. Snell noted that the test for determining the main contributing factor involved an evaluative process that considered both work and non-work related causal factors. The Deputy President held that while medical evidence was relevant, its absence did not necessarily invalidate the determination if the whole evidence was considered. In rejecting the opinion of A/Prof Shumack, the Member did so based on the expert's failure to relate the opinion to Manning's specific exposure, which was deemed a valid basis. The Court of Appeal upheld the Member's decision, finding no error in the adequacy of the reasons provided.

The Court of Appeal found that the Member had provided adequate reasons for rejecting A/Prof Shumack’s evidence and upheld the Tribunal’s decision. The court concluded that the Member had appropriately evaluated the evidence and did not err in his analysis of the main contributing factor to Manning’s skin cancer aggravation. The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In AV v AW Snell DP provided a detailed analysis of the test for main contributing factor. The Deputy President said that the test involved the broad evaluative consideration of potential competing causative factors which should be decided on the evidence overall and was not purely a medical question. The Deputy President quoted other decisions, in particular:“In El Achi Roche DP, considering the application of the test in s 4(b)(ii) in its current form, said:‘That a doctor does not address the ultimate legal question to be decided is not fatal … In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.’”[45] (emphasis added by Snell DP)[45] AV v AW, [71], citing State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71. Deputy President Snell said:“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.The following may be taken from the above:(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[46][46] AV v AW, [77]–[78]. In the present matter the Member addressed the issue of causation in several paragraphs, namely [25]–[26] and [28]–[33]. Drs Wykes and Lobel plainly accepted that the outdoor work with the appellant was the main contributing factor to Mr Manning’s skin damage and ultimate carcinoma. That was, notwithstanding Dr Lobel’s reference to the deductible proportion, overwhelmingly an evaluative conclusion by the two doctors. The appellant’s complaint is that the Member was wrong to reject the evidence of A/Prof Shumack contained in response to question 11 of the report of 14 April 2020. In my view, the rejection of A/Prof Shumack’s opinion is based on the Associate Professor’s failure to relate the opinion to the respondent’s specific exposure.[47][47] Reasons, [30].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The appellant says that there was “certainly no rational analysis by the Member of the evidence informing categorisation of the injury, let alone any insight into how the Member viewed the pathological process by which the injury was contracted or aggravated.”[55] (appellant’s emphasis)[55] Appellant’s submissions, [55]. The appellant complains that the Member ignored the substance of most of the evidence of Drs Lobel and Wykes, preferring to focus on reasons for rejecting the views of A/Prof Shumack. It says that this was not an even handed analysis of the evidence and that by reference to Beale v Government Insurance Office of NSW,[56] the Member was required to refer to relevant evidence and in the absence of reference to “certain evidence” of importance or critical to the proper determination of the matter “an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it.”[57][56] (1987) 48 NSWLR 430 (Beale), 443–444.[57] Appellant’s submissions, [59]. In the present matter, the appellant says the Member failed to:“(a) refer to the worker’s medical evidence in any detail,(b) discuss Dr Lobel’s methods of apportionment which were seemingly, or at least arguably, based on irrelevant criteria,(c) refer to the substance of the article which strongly supported A/Prof Shumack’s conclusion,(d) deal with the evidence provided by A/Prof Shumack which answered the Member’s criticisms, (e) refer to the less reasoned evidence of Dr Lobel in relation to the efficacy of windscreens filtering the effects of UVA and UVB waves, and(f) advert to the absence of any scientific justification provided for Dr Wykes’ views on causation.”[58][58] Appellant’s submissions, [60]. Finally, the appellant submits that the Member was wrong to apply his own test of common sense without explaining what informed that test, in the face of expert opinions on the subject not providing any indication of why he considers this common sense test is the correct approach in the circumstances. The respondent submits that the appellant has not established error with respect to the adequacy of the reasons. The respondent submits:“The Member has not preferred one medical opinion over another, but rejected A/Prof Shumack’s on the basis that:(a)There is no detailed explanation of A/Prof Shumack’s reports concerning the [respondent’s] specific exposure [at 32](b)The claim that the [respondent] would be protected from radiation in the various tractor cabs is unsupported by any scientific analysis and ignores effectively over 20 years of the [respondent’s] work experience [at 32](c)The percentages seem to be somewhat arbitrary and arrived at without any specific analysis of the particular exposures to sun experienced by this particular [respondent] [at 32](d)A/Prof Shumack’s reliance on a six year exposure stands in contrast to the [respondent’s] evidence and does not detail any factual basis on which he bases his chosen percentages [at 33](e)The employment need not be the ‘main contributing factor to the pathology, only the main contributing factor to the aggravation’ [34].”[59][59] Respondent’s submissions, [61].