Manning v Kiama Municipal Council
[2021] NSWPIC 432
•25 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Manning v Kiama Municipal Council [2021] NSWPIC 432 |
| APPLICANT: | David Manning |
| RESPONDENT: | Kiama Municipal Council |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 25 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – Skin cancer to outdoor worker applicant; squamous cell carcinoma through outdoor full-time work for respondent for 33 years; respondent argues disease or aggravation of disease and employment not the main contributing factor; Held – citing Cant v Catholic Schools Office, Booth v Four Men in a Pub Pty Limited and King v Commissioner of Police, acceleration of skin damage on facts and preponderance of medicine and employment the main contributing factor to the aggravation; award in favour of the applicant. |
| FINDINGS MADE: | 1. In the course of his employment with the respondent between approximately 1986 and 15 May 2019 the applicant 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 applicant’s employment with the respondent between approximately 1986 and 15 May 2019 was the main contributing factor to the acceleration. 3. Since 5 July 2019 the applicant has had no capacity for work and has suffered economic loss. 4. The applicant’s incapacity for work results from injury within the meaning of section 33 of the Workers Compensation Act 1987. 5. The applicant’s pre-injury average weekly earnings have been agreed in the sum of $1,178.40 per week. |
| AWARDS MADE: | 6. Award in favour of the applicant against the respondent for weekly payments of compensation for the following amounts and periods: (a) pursuant to section 36 of the Workers Compensation Act 1987 from 5 July 2019 to 4 October 2019 in the sum of $1,206.48 per week, and (b) pursuant to section 37 of the Workers Compensation Act 1987 from 5 October 2019 to date and continuing in the sum of $942.72 per week. |
STATEMENT OF REASONS
BACKGROUND
David Manning (the applicant) is a 63-year-old man who was employed by Kiama Municipal Council (the respondent) as an outdoor worker. He was engaged in the parks and gardens section of the Council and his duties included driving various machinery for the purpose of mowing lawns and maintaining the respondent’s parks and gardens.
The applicant performed this work for about 33 years. In 2018 he was diagnosed with aggressive cutaneous squamous cell carcinoma. This occurred initially on the left side of his face.
The applicant claims weekly payments of compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) from 5 July 2019 to date and continuing. The applicant’s pre-injury average weekly earnings have been agreed in the amount of $1178.40 per week.
Whilst there was initially some issue concerning whether or not the matter had been pleaded as personal injury simpliciter (section 4 (a) of the 1987 Act) or disease or aggravation of disease (section 4 (b) of the 1987 Act), ultimately it was determined that all allegations of injury had been pleaded.
ISSUE
The issue is whether or not the applicant’s condition is appropriately described as personal injury in the sense of frank injury, or disease or aggravation of disease. This is because the respondent maintains that the applicant’s condition is in the nature of disease and the applicant has not established that his employment was the main contributing factor to the disease as required by section 4 (b).
PROCEEDINGS BEFORE THE COMMISSION
The matter came for conciliation and arbitration in the Commission on 7 October 2021. On that occasion Mr J Wilson of counsel instructed by Mr A Williamson appeared for and with the applicant. Mr G Barter of counsel instructed by Mr M Franco appeared for the respondent. Mr K Payne was present for the insurer and Ms J Stroud was present for the respondent.
The matter proceeded to conciliation where various issues were discussed. Ultimately the matter was not capable of resolution. I was satisfied that I had used my best endeavours to attempt to effect resolution in the conciliation process, to no avail. Accordingly, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
DOCUMENTS BEFORE THE COMMISSION
The following documents were before the Commission and were relied upon by the parties:
(a) Application to Resolve a Dispute lodged 26 August 2021 and attachments (Application),
(b) Reply and attachments lodged 17 September 2021 (Reply),
(c) Application to Admit Late Documents filed by the applicant on 29 September 2021 and attachments,
(d) Application to Admit Late Documents filed by the respondent on 30 September 2021 and attachments, and
(e) Further statement of Mr Piper served by the respondent.
Documents the subject of (c) and (d) were admitted into evidence without objection. The statement in (e) was also admitted without objection and the respondent’s solicitor was directed to file this statement with the Commission within seven days.
No oral evidence was given.
DISCUSSION AND REASONS
The applicant’s statements
The applicant’s first statement is dated 17 December 2020. It confirms that he commenced employment with the respondent in 1986 on a permanent and full-time basis. The applicant’s duties were in the parks and gardens section of the Council. Whilst he was involved in some gardening work, all witnesses appear to agree that for 90% of his time the applicant was driving tractors, mowing parks. The applicant’s duties were on a permanent full-time basis, Monday to Friday.[1] After three years in the concrete section the applicant commenced as a tractor operator in 1989. He was mowing near footpaths, reserves, headlands, and rural roads.[2]
[1] Applicant’s statement at Application p. 1.
[2] Ibid at [12].
The first tractor that the applicant operated was an open-cab tractor which had a small clear windscreen at the front and a plastic roof above, but the sides were not enclosed.[3] In the early 1990’s the respondent implemented sunburn cream and provided approved workwear of various designs.[4] From 1992 for about 11 years the applicant drove a John Deere grass cutting/ mowing tractor.[5] The back and side windows were tinted but the front windscreen was clear. The slasher on the back of the tractor would often get caught, requiring the applicant to spin around.[6]
[3] Ibid at [13].
[4] Ibid at [15].
[5] Ibid at [16].
[6] Ibid at [17].
From 2003 the applicant was assigned a smaller John Deere tractor which had a swivel seat, but again a clear front windscreen. The applicant operated this tractor for about 10 years.[7] In about 2013 the applicant was assigned a Mulholland tractor, but the cabin was shorter in length, meaning that his Akubra hat continued to hit the rear window. He started wearing a sports cap, but his neck was exposed to the sun.[8]
[7] Ibid at [18].
[8] Ibid at [19].
To avoid the applicant needing to constantly turn his body to check on the rear of the tractor, he would often drive by turning his body at an angle (I took this to mean utilising the swivel seat) so that the left side of his face was parallel to the front windscreen.[9] The applicant says that he was seated in the tractor for almost the entirety of his working day.[10]
[9] Ibid at [21].
[10] Ibid at [23].
The applicant worked for the respondent for a total of 33 years and ceased employment because of ill health relating to his skin cancers on 15 May 2019.[11]
[11] Ibid at [26]-[27].
The applicant’s medical history
The applicant states that in 2013 he requested his dermatologist, Dr A Moss, to look at a sore on his left cheek. A biopsy was taken and Dr Moss confirmed the sore was cancerous and he removed it.[12]
[12] Ibid at [29].
In September 2018 a new lump appeared on the applicant’s left cheek, close to the scar left by the previous lump removal.[13] A biopsy was again taken, and the second lump was removed. The applicant was referred to Dr J Wykes for confirmation of the second removal and Dr Wykes advised that the applicant should monitor his left cheek.[14]
[13] Ibid at [30].
[14] Ibid.
In October 2018 the applicant returned to Dr Wykes concerning another lump in his left cheek and was informed that it was scar tissue.[15] This third lump, however, increased in size and an MRI scan in May 2019 revealed another cancerous tumour.[16] In June 2019 the applicant underwent a lengthy procedure to remove this lump which involved a skin graft from his left thigh.[17] He had to undergo 30 sessions of radiation and suffered radiation
side-effects.[18] Subsequently two further lumps appeared on the left side of his neck.[19][15] Ibid at [32].
[16] Ibid at [33].
[17] Ibid at [34].
[18] Ibid at [34]-[35].
[19] Ibid at [36].
In February 2020 Dr Wykes suggested revisionary surgery of the applicant’s eyelids[20] and in October 2020 the applicant consulted Dr E Lobel at the Skin Hospital at Darlinghurst.
[20] Ibid at [37].
The dispute notices
By letter dated 5 March 2020 the relevant insurer, Statecover Mutual Limited (Statecover), communicated its decision to dispute liability. The core of the dispute was that the evidence did not support that any medical or related treatment was reasonably necessary as a result of a compensable injury or condition. Second, that any treatment to date had not been
pre-approved by State Cover.By further letter dated 5 March 2020 Statecover advised that the applicant’s injury was not work-related and that the applicant’s employment is not “the main contributing factor to (his) alleged skin cancer injury”. Additionally, the respondent relied upon late notice of injury, sought consent forms to enable the obtaining of medical records and indicated that the applicant would need to see an independent dermatologist selected by Statecover.
A further dispute notice dated 22 April 2020 asserted that the applicant had not sustained a personal injury arising out of or in the course of his employment with the respondent under any limb of section 4(a) or section 4(b) of the 1987 Act. It asserted that for the purposes of section 9A employment was not a substantial contributing factor and for the purposes of section 4 (b) work was not the main contributing factor to the disease nor the aggravation, acceleration, exacerbation or deterioration of the disease. In this further notice of dispute, the respondent relied upon the opinion of Associate Professor Schumack.
On 18 November 2020 following further medical evidence served by the applicant’s solicitors Statecover confirmed that it continued to dispute liability and included within this dispute notice were provisions suggesting the notice of injury and claim for compensation provisions had not been satisfied.[21]
[21] Sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
It would appear that the late notice provisions were not pursued as the respondent made no submissions concerning them. Statecover sent a further notice of review decision on
3 December 2020 which maintained the dispute.
Medical evidence
Dr Wykes, the applicant’s treating surgeon, refers to a long history of work-related sun exposure and confirms that work is “likely to be a strong contributing factor”.[22] In a further report dated 29 September 2020 he confirms that long exposure to sun on the left side of the applicant’s face means it is likely that the applicant’s employment was the main contributing factor. On 13 August 2021, having reviewed the opinion of A/Prof Shumack, Dr Wykes maintains that the main risk factor in respect of the applicant’s carcinoma was his work.
[22] Application at p. 145.
Dr Lobel in reports dated 7 October 2020 and 29 June 2021 notes the history of 33 years of outdoor work which Dr Lobel confirms is a substantial and the main contributing factor to his condition. Dr Lobel confirms that this work exposure constitutes an aggravation and acceleration of skin damage.
Associate Professor Shumack saw the applicant at the request of the respondent. A/Prof Schumack has provided several reports. He saw the applicant on 14 April 2020 and obtained a history broadly consistent with the applicant’s statement.[23]
[23] Reply at p. 56.
Associate Professor Shumack confirms the diagnosis of aggressive squamous cell carcinoma consistent with accumulated sun damage.[24] He confirms that the applicant’s employment is a substantial contributing factor to the condition,[25] does not regard the condition to be a disease or aggravation, acceleration, exacerbation of deterioration of a disease and provides the following analysis:
“Question 11, are there any other non-work related factors which contribute to the condition, if so identify them and the extent of contribution of each factor.
Yes, indeed.
Childhood and teenage recreational sun exposure 50%
Adult recreational outdoor sun exposure 20%Workplace sun exposure during his employment with Kiama Municipal Council 30%”[24] Ibid at p. 61.
[25] Ibid.
Associate Professor Shumack’s second report is dated 22 April 2020 and adds little further information. A further report is dated 14 July 2020 in which the respondent’s lawyers put to him the proposition that the applicant’s skin cancer was a disease of gradual process causally initiated by his exposure to ultra-violet sunlight as a child and adolescent.
A/Prof Shumack agreed with this proposition. It was put to A/Prof Shumack that employment was not the main contributing factor to the aggravation (etc) of the disease, to whichA/Prof Shumack agreed. A/Prof Shumack did so[26] by again referring to the childhood 50% exposure, employment 30% exposure conclusion which he had arrived at in his first report.[26] Reply at p. 70.
Associate Professor Shumack re-examined the applicant on 13 July 2021.[27] A/Prof Shumack concludes that the applicant was “relatively protected in his workplace environment during the last 20 years or so”, so that whilst the applicant “would have had significant sun exposure” it would have been “only for the first six years or so of his employment history”.[28] At Reply page 77 A/Prof Shumack provides his reason for his percentage attribution of 50% exposure during childhood and this is that direct sun exposure would have been for a maximum six years and “the enclosed cabin” for the other 20 odd years “would have protected him from the majority of ultra-violet light exposure”.
[27] Ibid at p. 72.
[28] Ibid at p. 76.
In support of A/Prof Shumack’s opinion is an academic article concerning childhood exposure to ultra-violet radiation.[29] This article is said to support A/Prof Shumack’s conclusion concerning percentage contributions.
[29] Ibid at p. 82 ff.
The difficulty in accepting these percentage contributions is that there is no detailed explanation in A/Prof Shumack’s reports concerning the applicant’s specific exposure. Further, the claim that the applicant would be protected from radiation in the various tractor cabs is unsupported by any scientific analysis and ignores effectively over 20 years of the applicant’s work experience. The doctor somehow arrives at a limited six year work exposure (rather than 33 years) to support his conclusion. The percentages seem to be somewhat arbitrary and are arrived at without any specific analysis of the particular exposures to sun experienced by this particular applicant.
The correct approach in my view is to consider whether as a matter of common sense
33 years of outdoor work supports the opinion of the majority of the medical experts.
Dr Lobel and the treating doctor, Dr Wykes support the applicant’s causation argument in this regard. Dr Wykes as treating doctor is best placed to determine the “main contributing factor” point because he has treated the applicant over many years and would be more alert to the nature and extent of the applicant’s history of ultra-violet exposure. A/Prof Schumack’s reliance on a six year exposure stands in contrast to the applicant’s evidence and does not detail any factual basis on which he bases his chosen percentages.I accept Dr Lobel’s view that the many years of the applicant’s employment constituted aggravation and acceleration of damage to the applicant’s skin. My reading of his opinion is that Dr Lobel regards the “injury” as aggravation (etc) of an underlying disease condition. The employment need not be the “main contributing factor” to the pathology, only the main contributing factor to the aggravation (etc)[30].
[30] See, for example, in the context of section 9A the comments of Burke J in Cant v Catholic Schools Office [2000] NSWCCR 37, King v Commissioner of Police (2004) 2 DDCR 416 per Neilson J and Booth v Four Men in a Pub Pty Limited [2020] NSWCA 57.
Findings
In the course of his employment with the respondent between approximately 1986 and
15 May 2019 the applicant 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 1987 Act.The applicant’s employment with the respondent between approximately 1986 and
15 May 2019 was the main contributing factor to the acceleration.Since 5 July 2019 the applicant has had no capacity for work and has suffered economic loss.
The applicant’s incapacity for work results from injury within the meaning of section 33 of the 1987 Act.
The applicant’s pre-injury average weekly earnings have been agreed in the sum of $1,178.40 per week.
Awards
Award in favour of the applicant against the respondent for weekly payments of compensation for the following amounts and periods:
(a) pursuant to section 36 of the 1987 Act from 5 July 2019 to 4 October 2019 in the sum of $1,206.48 per week, and
(b) pursuant to section 37 of the 1987 Act from 5 October 2019 to date and continuing in the sum of $942.72 per week.
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