McGettigan v North Coast Tree Service Pty Ltd
[2014] NSWWCCPD 25
•6 May 2014
| WORKERS COMPENSATION COMMISSION | ||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||
| CITATION: | McGettigan v North Coast Tree Service Pty Ltd [2014] NSWWCCPD 25 | |||
| APPELLANT: | Wayne Vincent McGettigan | |||
| RESPONDENT: | North Coast Tree Service Pty Ltd | |||
| INSURER: | QBE Workers Compensation (NSW) Limited | |||
| FILE NUMBER: | A1-1526/13 | |||
| ARBITRATOR: | Mr J Hertzberg | |||
| DATE OF ARBITRATOR’S DECISION: | 17 December 2013 | |||
| DATE OF APPEAL DECISION: | 6 May 2014 | |||
| SUBJECT MATTER OF DECISION: | Application to extend time to appeal; evaluation of expert evidence in circumstances where no direct evidence of causation | |||
| PRESIDENTIAL MEMBER: | President Judge Keating | |||
| HEARING: | On the papers | |||
| REPRESENTATION: | Appellant: | Riley & Riley Solicitors | ||
| Respondent: | Mulcahy Lawyers | |||
ORDERS MADE ON APPEAL: | 1. | Time to appeal is extended until 23 January 2014. | ||
| 2. | The Arbitrator’s determination of 17 December 2013 is confirmed. | |||
| 3. | Each party is to pay his or its own costs of the appeal. | |||
BACKGROUND TO THE APPEAL
The appellant, Wayne Vincent McGettigan, was employed by the respondent, North Coast Tree Service Pty Ltd (North Coast), from 1982 as a vegetation management officer. During that period North Coast has undergone a number of name changes, but Mr McGettigan’s work duties were essentially the same.
Mr McGettigan’s duties included spraying to eradicate weeds, managing tree regrowth and poisoning trees. The work exposed him to a range of chemicals utilising varying degrees of protective clothing and equipment. He alleged he suffered a condition known as “peripheral neuropathy” as a result of chemical exposure. He has been incapacitated since 29 March 2012.
On 25 September 2011, Mr McGettigan submitted a claim for compensation. Although it is not made clear by the claim form, I infer it was a claim for weekly payments of compensation. He stated that he had sustained an injury to his “left hand, right hand, left foot, right foot”. He described the injury as “peripheral neuropathy”. The stated date of injury was 2 September 2011.
On 9 August 2012, QBE issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). QBE declined liability for two reasons:
· that Mr McGettigan had not sustained an injury within the meaning of s 4 of the 1998 Act, that is, he had not sustained “a personal injury arising out of or in the course of his employment”.
· that Mr McGettigan’s employment was not a substantial contributing factor to the alleged injury as required by s 9A of the Workers Compensation Act 1987 (the 1987 Act)
QBE based its decision on evidence available from a consultant occupational physician, Dr Oates, who concluded on the basis of the available evidence that as Mr McGettigan had not previously had an acute and life threatening exposure to chemicals, specifically organophosphates, he did not have peripheral neuropathy as a result of chemical exposure.
On 20 December 2012, Mr McGettigan lodged an Application to Resolve a Dispute (the Application) in the Commission. He sought weekly compensation from 30 March 2012, reimbursement of medical expenses, and lump sum compensation pursuant to s 66 of the 1987 Act in the sum of $25,300 in respect of 17 per cent whole person impairment, comprising eight per cent whole person impairment to each of the upper extremities and one per cent whole person impairment to each of the lower extremities.
On 14 February 2013, North Coast lodged a Reply to the Application. It denied liability for the reasons set out in the s 74 notice.
On 8 November 2013 the matter was listed before a Commission Arbitrator, Mr Hertzberg in Ballina. Mr McGettigan was represented by Mr Stockley of counsel and North Coast was represented by Mr Harlen, solicitor. No oral evidence was called. After hearing submissions the Arbitrator reserved his decision.
On 17 December 2013, the Arbitrator issued a Certificate of Determination which was accompanied by a Statement of Reasons. The Arbitrator was not persuaded that Mr McGettigan had discharged the onus of establishing, on the balance of probabilities, that the peripheral neuropathy from which he suffered was caused by exposure to chemicals at work.
Mr McGettigan seeks leave to extend time to appeal the Arbitrator’s decision.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 17 December 2013 records the Arbitrator’s orders as follows:
“1. Award for the respondent in respect to the applicant’s claim for injury.”
PRELIMINARY MATTERS
Monetary threshold
Before proceeding to deal with an appeal, the Commission must determine whether the Application to Appeal against the decision of an Arbitrator (Application to Appeal) meets the requirements of s 352 of the 1998 Act.
There is no issue that the quantum in issue on the appeal is in excess of $5,000 and therefore the threshold in s 352(3)(a) of the 1998 Act is satisfied.
Time
The last day for lodging the appeal under s 352(4) was 15 January 2014. The appeal was lodged on 23 January 2014 and was therefore lodged eight days out of time (s 352(4) of the 1998 Act). Mr McGettigan seeks an extension of time in which to appeal.
Mr McGettigan relies on r 16.2(12) of the Workers Compensation Commission Rules 2011 (the 2011 Rules) which is in the following terms:
“The Commission constituted by a Presidential member may, if a party satisfies a Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
In support of the Application to Appeal, Mr McGettigan’s solicitor, Melinda Clark, filed a statement and submissions in support. Ms Clark’s statement dated 23 January 2014 states:
“1. I am the solicitor with the carriage of the matter on behalf of the worker/appellant.
2. This matter was listed for conciliation and arbitration at Ballina on 8 November 2013.
3. A Certificate of Determination was issued by the Workers Compensation Commission on 17 December 2013 and received by our firm on 19 December 2013. I emailed a copy of the Determination to Paul Stockley of counsel, briefed in the matter, to his email address at Chambers that same day. I also telephoned Chambers and was advised that counsel had already left Chambers on leave.
4. Our firm closes for the Christmas holiday period from 20 December 2013 to 6 January 2014. I was away from the office on leave from 20 December 2013 to 16 January 2014.
5. On 7 January 2014 I was able to make mobile phone contact with counsel briefed in the matter. I learned that counsel was overseas and not due to return to Chambers until the end of January 2014 and did not have access to his work email or matters generally. We discussed the difficulty in arranging for another counsel from chambers to review the matter in his absence. I then rang a partner in our firm, Matthew Riley, and asked that he make enquiries with the Workers Compensation Commission about the situation in my absence.
6. I attach a file note made by the partner in relation to his enquiries of the Workers Compensation Commission which were communicated to me by telephone later that morning.
7. As a result of these enquiries, we formed the view that the time for any appeal would be extended by a further 14 days (to end January) and in a further telephone call with counsel later that evening I confirmed this. Counsel requested that I email him a copy of the Determination to his personal email address which I did later that evening.
8. On 8 January 2014 I received a short email from counsel with preliminary advice in relation to an appeal. Counsel advised that a detailed assessment would follow.
9. I returned to the office from leave on 16 January 2014. I emailed counsel a copy of the Practice Note [sic] 6 dated 16 December 2013 and confirmed that I had returned to the office.
10. I received an email from counsel with submissions and grounds of appeal on Monday 21 January. I prepared the Form 9 Application – Appeal Against Decision of Arbitrator and supporting documentation and emailed them that same day in final form for counsel to review. I spoke with counsel later than [sic, that] evening.
11. On Tuesday morning 22 January I spoke with my client to confirm his instructions (having previously discussed counsel’s preliminary advice) in relation to the appeal and emailed the Workers Compensation Commission Registry the Form 9 Application – Appeal Against Decision of Arbitrator and supporting documentation. I believed the Application to be lodged within time.
12. I was telephoned later that afternoon by a representative of the Workers Compensation Commission and advised that the Form 9 Application was lodged out of time and an application would need to be made to extend the time to lodge same.”
The file note referred to at [6] of Ms Clark’s statement states:
“DATE: 7 January, 2014
TO: File
FROM: MR
RE: McGETTIGAN
I spoke to Melinda by mobile phone this morning regarding the possible appeal of the decision by John Hertzberg. I phoned the Workers Compensation Commission of NSW and spoke with a female in Registry.
I advised her that we had received the Judgment on the last day before the closure of our office for Christmas. I advised her that counsel who appeared in the matter for the Applicant was in Europe and was not expected back into the Country until the end of January. I said that we were concerned to ensure we did not let the time for lodging an appeal expire.
The female person said to me “We don’t count the fortnight over Christmas in the calculation of the time.” I said I was not aware of that rule and again queried the statement regarding the statement she had made. She confirmed what she had said was correct.
I asked about obtaining a transcript of the proceedings and she gave me the following email address to request same [email protected]. I then sent an email requesting a copy of the audio proceedings.”
The submissions in support of the application to extend time are:
“• An Application to Appeal against the Decision of an Arbitrator (‘the Application’) involves complex issues of law and the legal representatives for the parties are required to certify that their client’s case has reasonable prospects of success pursuant to s 345 Legal Profession Act 2004. The Application must comply with the requirements of s 352 of the 1998 Act prior to registration.
· The WCC Determination was received by the legal representative’s firm the day before the commencement of the Christmas holiday period.
· Counsel briefed in the matter was away from Chambers for the Christmas holiday period with no access to work email or work matters generally.
· The solicitor with carriage of the matter was on leave and away from the office for the Christmas holiday period.
· The legal representatives were misinformed regarding the practice of the WCC regarding the time for lodging the Application and relied upon that information.
· The legal representatives have worked diligently to lodge the Application on behalf of the worker having regard to the circumstances.”
It is submitted that the worker’s evidence has not been challenged and that he is suffering from a debilitating and painful illness. If the time for making an application is not extended it would amount to a demonstrable and substantial injustice to the worker.
Submissions in reply
North Coast opposes the application for an extension of time. It submits that the Certificate of Determination was issued on 17 December 2013 and received by Mr McGettigan’s solicitors on 19 December 2013. That is not “the day before the commencement of the holiday period” as Mr McGettigan’s solicitors submit.
The Application to Appeal was not lodged until 23 January 2014, 37 days after the decision was made. Even allowing for the statutory holidays over the Christmas/New Year period, this is significantly beyond the 28 day maximum.
North Coast submits that the delays experienced by Mr McGettigan’s solicitors in receiving counsel’s advice and written submissions do not constitute “exceptional circumstances”. Lawrence-Plant v J & S Plant Pty Ltd t/as Bluey’s Hire [2009] NSWWCCPD 64 (Bluey’s Hire) and Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290.
As to Mr McGettigan’s solicitor’s statement that she was “misinformed” about the practice of the Commission regarding the time for lodging the Application, she had only to consult the relevant provisions of the legislation, in particular s 352(4) of the 1998 Act. The appellant’s solicitor cannot be taken to be misinformed as to the law and further that being misinformed as to the law is not an exceptional circumstance.
Rule 16.2(13) of the 2011 Rules states that a party who seeks an extension of time referred to in sub-r (12) must, as soon as practicable, give notice to the other parties of the intention to seek an extension. North Coast did not receive any notice from Mr McGettigan’s solicitors of his intention to appeal until the Application to Appeal was received through the post on 28 January 2014.
North Coast submits that there is no demonstrable and substantial injustice to the worker for the purposes of r 16.6 [sic, 16.2] (12).
CONSIDERATION
An appeal against a decision of an Arbitrator must be made within 28 days after the making of the decision appealed against (s 352(4) of the 1998 Act).
An Arbitrator’s decision is made “when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act” (Rule 16.2(2)).
The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal (Rule 16.2(12)).
Practice Direction 6 provides:
“An Appeal Application is registered for the purpose of the rules when it has been lodged with and accepted by the Registrar (Pt 1 r 1.4). In exceptional circumstances, a Presidential member may extend the time for making an appeal. If the Appeal Application is registered more than 28 days after the date of the decision appealed against, the appealing party must attach the reasons for the Appeal Application being out of time, full details of the arguments in favour of granting an extension of time, and the demonstrable and substantial injustice that losing that right would allegedly cause.”
The question of extending time to appeal was considered by McHugh J in Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 480. His honour observed that in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
· the history of the proceedings;
· the conduct of the parties;
· the nature of the litigation;
· the consequences for the parties of the grant or refusal of the application for extension of time;
· the prospects of the appellant succeeding in the appeal, and
· the fact that, upon expiry of the time for appealing, the respondent had a vested right to retain the judgement unless the application for extension of time is granted.
It was imprudent, to say the least, for the solicitor to rely upon the alleged conversation with an unnamed member of the registry without checking the accuracy of the information provided with statutory and other regulatory provisions relating to extending time to appeal. At the very least I would have expected that the solicitor would have made some attempt to have confirmed, in writing, the accuracy of the alleged information with a senior member of the Commission before allowing the appeal period to lapse. Had those steps been taken the solicitor would have been disabused of the erroneous notion that some particular time limit applied during the early part of January.
Whilst dilatory conduct by a solicitor will rarely, if ever, justify an extension of time, I am satisfied that in the circumstances of this case given the holiday period involved and the alleged conversation with a member of the registry staff, that exceptional circumstances exist.
The consequences of the application being refused are significant for Mr McGettigan, but only if the appeal is successful. At the time the Application to Resolve a Dispute was filed, Mr McGettigan was 53 years of age. His claim is for weekly payments of compensation from 30 March 2012 to date and continuing. He alleges that at the time the injuries were allegedly sustained, he was earning $1,432 per week. In addition he claims a substantial lump sum for permanent impairment of the upper and lower limbs, and payment of his medical expenses.
I have had regard to North Coast’s submissions, however, I note that no particular prejudice has been identified if leave to appeal is extended.
The essential purpose of allowing an extension of time in which to appeal is to enable the Commission to do justice between the parties. Given the unusual circumstances in which the appeal came to be filed out of time, and given the issues sought to be argued, I am satisfied that this is an appropriate matter in which to extend the time to appeal.
Time to appeal is extended until 23 January 2014.
ISSUES ON APPEAL
The grounds of appeal are:
(a) the Arbitrator failed to give proper and sufficient reasons;
(b) the Arbitrator failed to identify the correct legal test by which he was required to determine the issue of injury, and
(c) alternatively, the Arbitrator applied incorrect legal principles in determining the issue of injury.
EVIDENCE
Mr McGettigan
Mr McGettigan stated that for over 30 years he was employed in vegetation management. His duties included using chemicals for spraying tree growth, weed control around guide posts and guard rails and weed control on road edges. He also used chemicals to kill trees by way of injection and poisoning of tree stumps. He said that he used spray packs, knapsacks whilst walking around spraying and using spray tank equipment located on the back of a truck. He said that when road spraying he would spray out of the window of the passenger side of the vehicle driven by another employee. On occasion a truck/larger vehicle would drive past or there would be a gust of wind and the chemicals being used would blow back into the cabin. From time to time, when outside the vehicle spraying large areas with the power spray, wind gusts would blow chemicals back towards him.
Mr McGettigan stated that he also used solvents such as engine oil, transmission oil, hydraulic brake fluid, 2stroke petrol and degreasers in maintaining and cleaning the various plant and machinery used for vegetation management.
When he was initially employed, Mr McGettigan was not required to use any particular personal protective equipment when using chemicals. Chemicals were poured from a drum into the container being utilised. Sometimes the chemicals were diluted with water or diesel. He identified the chemicals used when he was initially employed as Tordon Timber Control TCH, Garlon and Diesel, Grazon and water, Ustillian herbicide, Amacide 50, Clipper Growth Control and a chemical which contained 245T or 2-4 D.
From about 1997, Mr McGettigan wore long sleeve cotton pants and shirts, steel capped boots, hard hat, sunscreen, ear muffs and safety glasses.
Between 1997 and 2004, the chemicals being utilised included Roundup, Roundup Bi-active, Oust, Tordon Timber Control TCH, Grazon and water, Garlon and Diesel and other chemicals that he could no longer recall.
From 2004 until Mr McGettigan ceased duties in March 2012, the chemicals being utilised remained the same, however after 2008, the quantities of the chemicals being utilised decreased. After that time he was not spraying or injecting chemicals daily, but on average was spraying or injecting two to three times per week. Sometimes he would be spraying every day for six to eight weeks and then might have six weeks off.
Mr McGettigan stated that in using the chemicals he was not required to wear any particular or any special personal protective equipment for chemical usage, except when utilising Starane 200 Herbicide and Protec plus when he used a respirator and overalls.
On 1 September 2011, Mr McGettigan experienced symptoms of coldness in his fingers on both hands and on the toes of both feet. He also experienced cramping in his right leg. The following day he was seen by his general practitioner Dr Reinbott. Dr Reinbott arranged for blood tests and CT scans of the brain and chest.
Around October 2011, Mr McGettigan was referred to Dr Maxwell, a consultant neurologist. He was subsequently referred to Dr Robert Lodge, a consultant physician who diagnosed that Mr McGettigan was suffering from the condition known as peripheral neuropathy.
In May 2012, Mr McGettigan was seen by Dr Thomas Rosenthal, an occupational physician.
Mr McGettigan has not worked since 30 March 2012.
Medical evidence
Dr Maxwell, to whom Mr McGettigan had been referred by his general practitioner Dr Reinbott, prepared two reports dated 17 October 2011 and 8 November 2011. He stated that Mr McGettigan had submitted to a glucose tolerance test which was abnormal, however he concluded that Mr McGettigan was “not clearly diabetic”. Nerve conduction studies showed slowing of motor and sensory conduction consistent with a mixed peripheral neuropathy which Dr Maxwell opined was “almost certainly due to his pre-diabetes”. He recommended assessment by an endocrinologist.
On 18 January 2012, Mr McGettigan was seen by Dr Robert Lodge, a consultant physician. He noted that Mr McGettigan presented with a 14 month history of symptoms of mild peripheral neuropathy and glucose intolerance.
In terms of causation, Dr Lodge said:
“I explained to Wayne that up to 1/3 of patients with peripheral neuropathy have no identified aetiology. In his case it is hard to be sure whether mildly elevated glucose readings are the culprit. Whatever the case, it is important that he continues to lose weight …”
On 22 May 2012 on referral from Dr Reinbott, Mr McGettigan was seen by Dr Rosenthal. After reporting on the history, Dr Rosenthal said:
“I have seen the reports from Dr Maxwell, neurologist, he has done some thorough investigations, initially thinking his neuropathy was related to diabetes, but no diabetes was subsequently found on testing. He was then referred to Dr Robert Lodge consultant physician, who determined that Mr McGettigan has peripheral neuropathy, with no identifiable aetiology…”
Dr Rosenthal noted that Mr McGettigan had used multiple chemicals including herbicides, pesticides and organophosphates pesticides since 1982. He had used very little in the way of protective gear, occasionally using gloves and noting that from time to time, he would be sprayed from wind gusts with the chemicals he was using.
Dr Rosenthal provided the following opinion:
“I have examined the list of chemicals and materials safety data sheets (MSDS’s) which he provided. There are a number of chemicals that he was exposed to, including fungicides, herbicides and organophosphate pesticides and numerous solvents, including ethylene, glycol, petroleum solvents, aromatic solvents and ingredients listed as ‘other’.
The literature indicates that there are a number of substances that can cause peripheral neuropathy including lead, arsenic, mercury, thallium and solvents, including bexacarbons, trichloroethrylene and carbon disulphide. Organophosphates, chlorinated phenyl derivatives and organophosphates are also known to cause peripheral neuropathy.
It appears that Mr McGettigan has been exposed to a number of solvents and organophosphate pesticide (Lorsban) over a number of years. He has had significant low grade exposure over this period without wearing appropriate protective gear. There is a high likelihood that low grade absorption of many of these chemicals occurred into his body. As no other cause of his peripheral neuropathy was found, it is reasonable to conclude that his exposure to these various chemicals is directly related to his peripheral neuropathy. It is impossible to quantify his exposure to these chemicals and the conclusion is based on the history of his exposure and his current medical condition.
Thus in my opinion I believe he has legitimate Workers Compensation claim, I believe his peripheral neuropathy is related to his exposure to solvents and the organophosphate pesticide. There is adequate literature and clinical studies to support this conclusion…”
On 3 May 2012, Dr Lodge wrote to Dr Reinbott. Dr Lodge stated:
“Wayne also raised the question of occupational exposure and peripheral neuropathy, in particular he has had exposure in the distant past to DDT, 245T and Dieldrin. I explained that we still have not got a strong hold on the exact relationship between exposure and neurological symptoms. This is despite Rachel Carvon warning us of the dangers as far back as the 1960’s. Whatever the case, he should limit his exposure to any of these agents, even Roundup and Grazon. Should he wish to pursue this option [a workers compensation claim] it would be helpful to engage the advice of an occupational physician.”
On 2 July 2012, Mr McGettigan was examined by Dr Chris Oates, a consultant occupational physician on behalf of QBE Workers Compensation (NSW) Limited (QBE). Dr Oates took a detailed history and made reference to the opinions of Drs Maxwell, Lodge and Rosenthal. Dr Oates stated:
“There is insufficient evidence that this condition [peripheral neuropathy] has been caused by exposure to pesticides, specifically organophosphates. Organophosphate-induced delayed polyneurophathy (OPIDP) occurs in a small percentage of cases roughly two weeks after exposure to a toxic level of organophosphate pesticide, where it produces temporary paralysis. The symptoms can continue to worsen from three to six months. This state is preceded by an intermediate syndrome which manifests one to four days after the acute organophosphate poisoning or cholinergic crises and this presents as weakness in neck flexion and proximal limb muscle weakness and respiratory deficiency and is considered to be a life threatening syndrome. For these two states (intermediate and delayed) to occur requires an [sic] substantial poisoning with organophosphate pesticide with symptoms of reduced pupil size (miosis), sweating, lacrimation (profuse tears), gastrointestinal symptoms and respiratory difficulties with dyspnoea, bradycardia (slow heartbeat) and cyanosis (blueness of the skin), vomiting and diarrhoea, along with central nervous system effects, such as seizures or convulsions, coma or respiratory failure.
There was no medical evidence produced to indicate that this has occurred in this case, hence the peripheral neuropathy is not considered consistent with poisoning either acute or chronic by pesticides. I have reviewed the many chemicals used by means of perusing the material safety data sheets (MSDS) and the organophosphates would be the most likely cause of the problems, if any. The MSDS’s did not indicate that any of the chemicals listed specifically caused peripheral neuropathy, apart from the organophosphates. The exception is Agent Orange – a 50/50 mixture of 245-T and 2,4-D which had similar affects to organophosphates and is known to be a cause of peripheral neuropathy.”
Dr Oates considered that Mr McGettigan’s employment was not a substantial contributing factor to the condition having regard to the factors referred to in s 9A(2) of the 1987 Act to which he was specifically referred.
Dr Oates added that against the causal link between occupational exposure and the symptoms is the mere fact that Mr McGettigan worked with a variety of chemicals for over 20 years and for the majority of that time, he worked without any personal protective equipment, yet there was no history of any prior acute exposure or toxicity episodes. He said that symptoms would have been expected then, rather than more recently, as in the later years of employment personal protective equipment had been used.
Dr Rosenthal prepared a report on 4 October 2012 commenting on Dr Oates’ opinion, he said:
“I particularly noted Dr Oates’ conclusion that there is insufficient evidence that this condition has been caused by exposure to pesticides. Nonetheless chemicals that he was exposed to are known to cause peripheral neuropathy. Exposures cannot now be measured as they have occurred in the past and there are no objective tests that can be performed to either prove or disprove whether these chemical exposures have caused peripheral neuropathy. My conclusion was based on the fact that there appears to be no other cause of Mr McGettigan’s peripheral neuropathy and that the chemical exposures are the most likely cause.” (emphasis in the original)
Dr Rosenthal provided another report on 22 November 2012 addressed to Mr McGettigan’s solicitors. Dr Rosenthal reviewed the medical reports from Drs Maxwell, Lodge and Oates and the investigations arranged by Mr McGettigan’s general practitioner, including blood tests, an MRI of the lumbar spine, MRI of the brain and CT scans of the brain and chest, all of which were normal. He again recorded Mr McGettigan’s work history and his examination findings.
Dr Rosenthal again stated his disagreement with Dr Oates’ opinion. He said that Dr Oates was reliant on the belief that Mr McGettigan’s peripheral neuropathy was caused by pre-diabetes. However he said, based on information provided by his endocrinologist, Dr Lodge, that there was no identifiable aetiology for the peripheral neuropathy and that the original reported pre-diabetes has subsequently been investigated and it was found not to exist. Based on these facts, he did not agree with Dr Oates as pre-diabetes had essentially been ruled out as a cause of his peripheral neuropathy.
Dr Rosenthal repeated his view that there being no other likely cause of Mr McGettigan’s condition and noting his known exposure to chemicals which can cause peripheral neuropathy, in his view it was reasonable to conclude that Mr McGettigan’s exposure to workplace chemicals over a number of years was the most likely cause of his peripheral neuropathy.
Dr Oates provided a further report on 6 June 2013, commenting in particular on Dr Rosenthal’s opinion. Dr Oates summarised Dr Rosenthal’s views as not providing any proof of causation. He said that Dr Rosenthal has adopted a “default position”, that is, because there is no other cause for the peripheral neuropathy, it follows that it is more likely than not that chemical exposure is the cause. Dr Oates disagreed with that logic. He said that Dr Rosenthal had presented no evidence that the alleged chemical exposure is the cause of the peripheral neuropathy. He said:
“This assertion does not change my previously expressed opinion that in a complex case such as this, where there is an alleged historical exposure to a vast array of different chemicals, but a significant delay between the time of exposure and the onset of symptoms, which occurred long after personal protective equipment had started to be used, that a toxicologist who is experienced in investigating and assessing pesticide exposures should review this claimant.”
Dr Oates added that in his view, an assessment by a toxicologist would provide the best chance of obtaining some authoritative comment on causation. He was also not convinced by the evidence presented that pre-diabetes had definitely been ruled out as a cause of the peripheral neuropathy. He also recommended an assessment by an endocrinologist/ diabetologist in an attempt to resolve that point one way or the other.
THE ARBITRATOR’S REASONS
The Arbitrator commenced the task of analysing the issues before him by noting the statutory requirements of establishing “injury” within the meaning of s 4 of the 1987 Act, in the context of the issues in this case.
At [8] of the Reasons he said:
“The applicant must prove that his illness is a work injury as defined by s 4 of the 1987 Act. The applicant alleges he developed peripheral neuropathy and that it was caused by exposure to chemicals at work, in particular organophosphates. The applicant must prove that there is a causal link between exposure to chemicals and the development of the condition.”
There is no dispute that Mr McGettigan suffers from peripheral neuropathy. The Arbitrator acknowledged (at [9] of Reasons) that peripheral neuropathy can have many different causes including exposure to chemicals such as organophosphates.
The Arbitrator correctly noted that Mr McGettigan first experienced symptoms in September 2011. The symptoms developed well after 2008, when it is accepted that the quantities of chemicals being utilised by Mr McGettigan had decreased significantly.
The Arbitrator also correctly observed that it was not controversial that Mr McGettigan had been exposed to a range of chemicals in the course of his employment including organophosphates.
The Arbitrator briefly summarised the evidence of Drs Rosenthal and Oates at [12]–[13] where he said:
“12.Dr Rosenthal is an occupational physician who examined the applicant on referral from his general practitioner. He has stated that as no conclusive opinion can be formed about causation the most likely cause, having regard to the chemical exposure over time is the chemical exposure.
13.Dr Oates who was qualified by the respondent and is also an occupational physician disputes Dr Rosenthal’s opinion and states that it is not possible to determine causation based on current testing and analysis. Dr Oates recommends further assessment by a toxicologist.”
Notwithstanding Dr Oates recommendation that a toxicologist be retained to determine the cause of Mr McGettigan’s condition, that recommendation was not taken up and no toxicological evidence was tendered.
At [14] the Arbitrator stated that the parties had made extensive submissions which have been recorded, although he did not repeat the submissions, he stated that he had regard to them in making his decision.
On the question of discharging the onus of proof, the Arbitrator stated the test at [16] where he said:
“In order be [sic] satisfied that the case has been proved on the balance of probabilities I must feel an actual persuasion or strength of conviction or a comfortable satisfaction of the existence of a fact. The Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 reviewed the relevant case law and set out the approach to be adopted in the resolution of disputed questions of fact and summarised the approach as follows:
‘(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probability may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding on the balance of probabilities, as to the existence of the fact in issue.’”
The Arbitrator acknowledged at [17] that “the resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues” (Sing v FTW Products Pty Limited [2007] NSWWCCPD 230 at [65]).
With these principles in mind the Arbitrator considered (at [19]–[25]) Mr McGettigan’s lengthy statement concerning the extent to which he was exposed to chemicals in the course of his employment.
The Arbitrator then recorded and analysed the medical evidence at paragraphs [26]–[39]. The Arbitrator’s summary of the evidence has not been challenged as inaccurate nor has it been submitted that he ignored relevant evidence.
The Arbitrator found (at [40]) that Dr Rosenthal’s conclusion was “an assumption”. Dr Rosenthal did not disagree with Dr Oates’ opinions but “he [disagreed with] his conclusions”.
He added (at [41]), that Dr Rosenthal had succinctly stated the difficulties facing a diagnostician in circumstances where the cause of Mr McGettigan’s condition could be neither proven nor disproven.
The Arbitrator stated at [42] that both Drs Rosenthal and Oates agreed that there was no proof of a direct causal link between exposure to chemicals and Mr McGettigan’s condition. Again the Arbitrator noted Dr Rosenthal’s conclusion, that in the absence of direct proof, he considered it appropriate to adopt the most likely cause.
In light of this comment, the Arbitrator articulated the issue requiring his determination at [43] where he said:
“Is it sufficient then to conclude that a likely or possible cause is the most probable cause? Is it sufficient to conclude, as it is known that organophosphate exposure is one of several known causes that in the absence of any other plausible explanation, organophosphate and other chemical exposure is the cause?”
The Arbitrator said at [44]:
“I have regard to all the evidence and the following summary:
(a)The applicant was exposed over many years to chemicals which can cause peripheral neuropathy.
(b)The use of these chemicals decreased and more protective clothing was provided by 2008, three years before the development of symptoms of peripheral neuropathy.
(c)There is limited evidence about the levels of exposure to organophosphates.
(d)There is no evidence that the applicant experienced symptoms of organophosphate poisoning at any time. The applicant’s evidence is that apart from the occasional cold or flu he was rarely ill.
(e)The continuing increase in symptoms after the applicant stopped working.
(f)The evidence of Dr Lodge that there are many causes for the illness with causation in up to 30 per cent of cases being unknown.”
The Arbitrator’s ultimate conclusion is expressed at [45] and [46] where he said:
“45. Whilst I understand Dr Rosenthal’s logical conclusion that of all the possible causes, chemical exposure is the most likely possible cause, I am not persuaded by the evidence that the possibility that the illness was caused by chemical exposure is in fact a probability or that the probability of that fact is greater than the possibility of the non-existence.
46. I find that the applicant has not discharged the onus of establishing on the balance of probabilities that the peripheral neuropathy from which he suffers was caused by exposure to chemicals at work.”
SUBMISSIONS AND DISCUSSION
Mr McGettigan’s submissions
Mr McGettigan’s submissions are relatively concise and it is convenient to extract them in full, omitting preliminary observations:
“B Ground 1
4. The Arbitrator’s own reasoning is contained in paragraph [45] of the Determination. It is not the brevity of this paragraph that is the foundation for the challenge, rather, it is the Arbitrator’s failure to identify and reveal his own reasoning process and the principles which he is applying.
5. On one view it might be thought that the opinions of Dr Rosenthal and Dr Lodge were not sufficient to raise a prima facie case (there being no reference in paragraphs [44] or [45] to the opinion of Dr Oates).
6. In particular, the Arbitrator refers to the view of Dr Rosenthal that no cause can be proven or disproven. While this was an important scientific opinion which the Arbitrator was entitled and obliged to consider, the Determination gives no insight as to how it was assessed in the legal analysis of causation.
7. Alternatively, and on another view of his reasons, the Arbitrator may have considered it necessary for the appellant to demonstrate an acute organophosphate poisoning (paragraph [44(d)] rather than a chronic exposure. However he does not say so in terms. This is an important feature of the assessment of the issues, because Dr Oates’ opinion appeared to be largely directed to an acute poisoning, which was not how the appellant’s case was presented. If he taken [sic] this approach, the appellant says this would have constituted an error of fact. Given the limited reasons no conclusion (rather than a suspicion) can be reached.
8. The appellant submits that one explanation for the want of sufficient reasons was the Arbitrator’s failure to identify and apply correct legal principles. Consideration of this proposition is contained on the submissions that follow below. In any event, the Determination falls short of the Arbitrator’s obligation as identified by the Court of Appeal in Pettitt v Dunkley [1971] 1 NSWLR 376.
C Grounds 2 & 3
9. It is convenient to deal with these grounds together for two reasons. The first is that they are natural corollaries. The second is that the insufficiency of reasoning complained of in ground 1 above makes it difficult for the appellant to understand what approach the Arbitrator actually adopted.
10. The rule identification or direction as to law was a necessary part of the Arbitrator’s task as envisaged by Glass J in Azzopardi v TasmanUEBIndustries (1985) 4 NSWLR 139.
11. To the extent that he undertook this task, the Arbitrator’s analysis is contained in paragraphs [8], [15], [16] and [17] of the Determination. The appellant does not point to any incorrect statement of principle. Rather, it is an insufficient statement and thus one which has resulted in error.
12. The starting point was (as the Arbitrator correctly identified), s 4 of the Workers Compensation Act 1987 (the 1987 Act). What he did not identify and thus did not appear to apply was the statutory text, bearing in mind that this was undoubtedly a “disease” case.
13. Importantly, s 4 (b)(i) (1987 Act) definition of injury:
‘includes a disease which is contracted by the worker in the course of his employment and to which the employment was a contributing factor.’
14. In light of the view expressed by Dr Rosenthal, the appellants treating occupational physician, that the cause of the peripheral neuropathy could be neither disproved or proved, the question of the legal (rather than the scientific) standard to be applied was always paramount.
15. The Arbitrator did consider and identify authorities relevant to discharge of onus involving competing expert opinions (at paragraphs [16] and [17]. However, he did not refer to the relevant principles identified by the Court of Appeal in Murray v Shillingsworth (2006) NSWCA 367 (Murray). If he did have regard to it, he did not appear to apply it.” (emphasis in original)
Consideration
Although Mr McGettigan has not directed attention to any particular passage in Azzopardi, I infer he is referring to the comments of Glass JA at page 156 where his Honour said:
“Errors may be committed by a Workers’ Compensation judge [or in this case an Arbitrator] at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again.”
The Arbitrator identified the issue before him (at T1.39). He said:
“The issue in dispute is really, I’m told, mainly whether or not the Applicant sustained an injury, being peripheral neuropathy, arising out of or in the course of his employment.”
Mr Stockley agreed the Arbitrator had correctly identified the issue to be determined. He said (at T2.27):
“… from the Applicant’s perspective, we see the issue range in precisely the way that you’ve identified it, that is, a question of medical opinion to establish the requisite causation between the undoubtedly accepted pathology, being the peripheral neuropathy, and the type of work that Mr McGettigan was performing.”
Contrary to Mr McGettigan’s submissions, the Arbitrator did identify the application of s 4 of the 1987 Act as the starting point of the analysis (Reasons at [8] and [15]). The Arbitrator stated that in order to prove injury within the meaning of s 4 Mr McGettigan must establish “a causal link between exposure to chemicals and the development of the condition”.
It follows that the Arbitrator correctly identified and stated the issues in accordance with the statutory definition of “injury” in the particular circumstances of this case, and in a manner consistent with the parties’ submissions. Mr Stockley made no submission at the arbitration, about any particular relevance to s 4(b)(i) of the 1987 Act. He agreed with the Arbitrator that the issue was causation. The submission that the Arbitrator did not apply the statutory test is therefore rejected.
Mr McGettigan also complains that the Arbitrator failed to consider and identify authorities relevant to the discharge of onus of proving injury in circumstances where there are competing experts’ opinions. In his submissions to the Arbitrator, Mr Stockley referred to the judgment of Justice Einstein in Murray, where his Honour applied the dicta of Herron CJ in EMI (Australia) Ltd v Bes (1970) WCR 114 at 119 (Bes). His Honour the Chief Justice said:
“It seems to me that bears out what I have concluded is the correct principle to apply, namely, that it is not incumbent upon the applicant upon whom the onus rests to produce evidence from medical witnesses which proves to demonstration that the applicant's contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion, the Judge after examining the lay evidence may decide that it is probable.”
The relevant point in Bes is that if medical science says that there is a possible connection between the condition and the event said to have caused it, then, after examining the lay evidence, the judge “may” decide that the connection is probable.
After noting that Drs Rosenthal and Oates agreed that there was no proof of a direct causal link between exposure to chemicals and Mr McGettigan’s condition, and noting Dr Rosenthal’s conclusion that it was appropriate to adopt the most likely cause, the Arbitrator then asked (at [43]) if that opinion was sufficient to establish that exposure to organophosphates was the most probable cause. Then, consistent with Nguyen, the Arbitrator considered the evidence to determine if he felt actual persuasion that causation had been established on the balance of probabilities. That approach disclosed no error.
In identifying the issue in this way, the Arbitrator was acting in accordance with the legal requirements for proof on the balance of probabilities in cases where medical science cannot identify a biological or pathological mechanism by which the disease develops. If expert evidence establishes that the relationship is possible, the proof to the required standard may then be achieved by further evidence (expert or non-expert). The Arbitrator’s failure to make an express reference to Bes is, in the circumstances, immaterial.
The Arbitrator accepted that the evidence presented by Mr McGettigan demonstrated a possible causal connection between peripheral neuropathy and his employment. However, consistent with the principles in Bes, the Arbitrator was required to weigh that evidence with other lay and expert evidence before reaching a conclusion as to the probable cause of the condition.
The Arbitrator identified the following factors which militated against a finding that causation had been established:
· Both Dr Rosenthal and Dr Oates agreed that there is no proof of a direct causal link between exposure to chemicals and peripheral neuropathy ([42] of Reasons).
· Given the absence of any objective evidence of the level of Mr McGettigan’s exposure to chemicals, Dr Rosenthal’s opinion, although logical, was an assumption ([40] of Reasons).
· By 2008, three years before Mr McGettigan developed symptoms of peripheral neuropathy, the use of chemicals at work had decreased and more protective clothing had been provided ([44](b) of Reasons). This statement by the Arbitrator was consistent with Dr Oates’ evidence (quoted at [58] above) that Mr McGettigan never developed the symptoms of organophosphate poisoning. Hence, Dr Oates’ opinion that peripheral neuropathy was not consistent with such poisoning, either acute or chronic by the chemicals to which Mr McGettigan was exposed in the course of his employment.
· There was no evidence that Mr McGettigan experienced symptoms of organophosphate poisoning at any time ([44](d) of Reasons). This statement was consistent with Dr Oates’ evidence at [58].
· The symptoms Mr McGettigan suffered continued to increase after he stopped working ([44](e) of Reasons).
· In up to 30 per cent of cases the cause of peripheral neuropathy is unknown ([44](g) of Reasons).
These findings were open to the Arbitrator on the evidence and disclosed no error. Moreover, they all strongly pointed to Mr McGettigan’s condition having not been caused by exposure to chemicals in the course of his employment with North Coast.
A further reason which militated against a finding in Mr McGettigan’s favour, was the fact that Dr Oates reviewed the safety data sheets relating to the chemicals to which Mr McGettigan was exposed, and with the exception of Agent Orange, none of the chemicals used by him were known to cause peripheral neuropathy.
While the Arbitrator properly acknowledged that Mr McGettigan’s chemical exposure with North Coast was a possible cause of the condition of peripheral neuropathy, for the reasons given, the factors that militated against such a conclusion, on the balance of probabilities significantly outweighed those in favour of such a finding. The Arbitrator’s analysis of the evidence revealed no error.
In Caruana v Darouti [2014] NSWCA 85, McDougall JA (with whom Leeming JA agreed) commented on the difficulties faced by courts when required to resolve conflicts in expert evidence in the absence of cross examination or other attempts to resolve the conflict, leaving the primary judge to deal with the situation as best he can. He said (at [124]–[125]):
“124. I accept, as Basten JA said in Fitzsimmons [Fitzsimmons v Coles Supermarket Australia Pty Ltd [2013] NSWCA 273] at [23], that it is for parties to run a case as they see fit. But, equally, parties must live with the consequences of forensic choices that they make. Where, as in this case, expert evidence is not inherently illogical or implausible, or based on manifestly incorrect or unproven assumptions of fact, the primary judge must decide between the experts as best he or she can. In those circumstances, where a primary judge makes an apparently rational choice between competing inferences available from expert evidence, it is very difficult for the disappointed party to complain on appeal that some other inference should have been chosen.
125. A trial is more than a rehearsal for an appeal. A party who fails to provide a trial judge with appropriate assistance in relation to evidence generally (and expert evidence in particular) should expect to have a difficult time in persuading an appellate court that some different approach to the expert evidence should be taken.”
These comments are applicable in the present matter. On the evidence tendered, and for the reasons given, the Arbitrator was not satisfied that Mr McGettigan had discharged the onus of proof. That conclusion was open and disclosed no error.
Adequacy of Reasons
It is incorrect and misleading to submit, as Mr McGettigan has, that the Arbitrator’s reasoning is limited to his remarks at [45]. The Arbitrator identified (at [8]) the relevant statutory provision relating to the requirements of establishing “injury” within the meaning of s 4 of the 1987 Act. He considered Nguyen, and the principles relevant to onus of proof at [16] and [17]. He identified (at [43]) the issue to be determined in terms of whether expert evidence of a possible cause of Mr McGettigan’s condition could be accepted as the probable cause of it. At [44] the Arbitrator summarised the evidence relevant to the issues and at [45]–[46] he expressed his ultimate conclusion.
The submission that, on one view, it might be thought that the Arbitrator thought that the opinions of Dr Rosenthal and Dr Lodge were not sufficient to raise a prima facie case misses the point. As I have indicated, the Arbitrator accepted (at [45] of Reasons) that the evidence presented by Mr McGettigan demonstrated a possible causal connection between peripheral neuropathy and his employment. Mr McGettigan’s claim failed because for the reasons stated, the Arbitrator was not satisfied that he had discharged the onus of proof.
Mr McGettigan’s reference to Pettitt v Dunkley is, I infer, a reference to the comments of Asprey JA (Manning and Moffitt JJA agreeing) at 328 where his Honour held that parties are entitled to a judgment based on findings and reasons which enable a “proper understanding of the basis upon which the verdict has been entered”.
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA said at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter [1945] NSWStRp 35; (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.”
At [43] of the Reasons, the Arbitrator clearly identified the “point critical to the contest” as discussed in Alchin v Daley [2009] NSWCA 418, by posing two questions:
(a) “Is it sufficient then to conclude that a likely or possible cause is the most probable cause?”, and
(b) “Is it sufficient to conclude, as it is known that organophosphate exposure is one of several known causes that in the absence of any other plausible explanation, organophosphate and other chemical exposure is the cause?”
Resolving the critical point in issue involved an analysis of the lay and expert evidence. The complaint on appeal that the Arbitrator failed to identify or reveal his reasoning process has no merit. As I have indicated, the Arbitrator carefully analysed the evidence and articulated the essential ground on which his decision rested.
The reasons are sufficient to explain his reasoning process on the critical point, namely, his reasons for concluding that Mr McGettigan failed to discharge the onus of establishing that the peripheral neuropathy from which he suffers was caused by exposure to chemicals in the course of his employment. I reject the submission that the Arbitrator’s reasons give no insight into the reasoning process.
It follows that the submission that the Arbitrator failed to give proper and sufficient reasons must fail.
CONCLUSION
The Arbitrator correctly applied the principles in Bes and Nguyen and was not satisfied that causation had been established. That conclusion was open on the evidence and disclosed no error.
ORDERS
Time to appeal is extended until 23 January 2014.
The Arbitrator’s determination of 17 December 2013 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Judge Keating
President
6 May 2014
I, CYNTHIA BENITEZ, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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