Monadelphous Engineering Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 65
•16 April 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Monadelphous Engineering Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 065 |
PARTIES: | Monadelphous Engineering Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/172 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 16 April 2015 |
HEARING DATES: | 8, 9 & 10 October 2014 |
MEMBER: | Deputy President Swan |
ORDERS : | 1. The Appeal is dismissed. 2. The decision of the Workers' Compensation Regulator dated 23 April 2014 is confirmed. 3. The Appellant is to pay the Respondent's costs of, and incidental to, the Appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Appeal against decision of the Regulator - two primary grounds of Appeal - question as to whether worker gave an accurate account of his medical history to Medical Specialist, Dr Brown - Dr Brown the only Medical Practitioner to give oral evidence to the Commission - the second question related to whether the worksite was accurately described by the worker as it related to the level of "dust" on site - the worker claimed that he suffered from an exacerbation of a pre-existing chronic obstructive pulmonary disease (COPD) asthma - worker found to have given as accurate as possible, in difficult circumstances, an account of his various health issues over time - the worker's evidence also accepted as to the state of the worksite on the dates of 3, 4 and 5 October 2013. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 Avis v WorkCover Queensland (2000) 165 QGIG 788 |
| APPEARANCES: | Mr C. Clark, Counsel instructed by Sparke Helmore Lawyers for the Appellant. |
Decision
This Appeal is made by Monadelphous Engineering Pty Ltd (the Applicant) against a decision of the Regulator to accept a claim made by Mr Robert Fellows (the worker) that he suffered from an exacerbation of a pre-existing chronic obstructive pulmonary disease (COPD) asthma. The exacerbation is said to have been caused by dust at the worker's workplace on the dates of 3, 4 and 5 October 2013. The worker says that he has had previous infective exacerbations of his COPD but on this occasion the dust was also a significant contributing factor.
The workplace was a site at the Caval Ridge Mine Project, some 17 kilometres from Moranbah in Queensland.
It is accepted that Mr Fellows was a worker for the purposes of the Worker's Compensation and Rehabilitation Act 2003 (the Act). It is also accepted by the Applicant that the worker had a long standing underlying lung condition (COPD).
Legislation
Section 32 of the Act defines "injury" as:
"32 Meaning of injury
1)An injury is personal injury arising out of, or in the course of, employment if -
a)for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
b)for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.
2)However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
3)Injury includes the following -
a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
b) an aggravation of the following, if the aggravation arises out of or in the course of, employment and the employment is a significant contributing factor to the aggravation;
(i)a personal injury other than a psychiatric or psychological disorder:
(ii)a disease;
(iii)a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;
ba)an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment;
c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
e) death from a disease mentioned in paragraph a), if the employment is a significant contributing factor to the disease;
f) death from an aggravation mentioned in paragraph b), if the employment is a significant contributing factor to the aggravation.
4)For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
5)…"
Meaning of s 32(1) of the Act
An injury arises out of employment where there is a causal connection between the injury and the employment. In Avis v WorkCover Queensland, President Hall stated:
"… the phrase 'arising out of' whilst involving some causal or consequential relationship between the employment and the injury, does not require that direct or proximate relationship which would be necessary if the phrase used were "caused by"."[1]
[1] Avis v WorkCover Queensland (2000) 165 QGIG 788
Employment as a significant contributing factor
In Q-COMP v Green, President Hall adopted the definition; "important; of consequence" in respect of the meaning of 'significant'. He noted that it was a lesser degree of contribution than if the term had been 'substantial'.[2]
[2] Q-COMP v Green (2008) 189 QGIG 7747 at 751
Onus of Proof
The Applicant bears the onus of proof on the balance of probabilities. To satisfy this onus on the balance of probabilities requires more than a mere possibility that particular events occurred.[3]
In Carr v Baker, Jordan CJ stated:
"The existence of the fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible."[4]
[3] MacArthur v WorkCover Queensland (2001) 167 QGIG 100 at 101
[4] Carr v Baker (1936) SR (NSW) 301 at 306
Witnesses
Witnesses for the Applicant were:
· Graeme Hopper - Electrical Superintendent - Monadelphous Engineering Pty Ltd;
· Ian Kickbush - Electrical and Instrumentation Supervisor, Monadelphous Engineering Pty Ltd;
· Ben Patten - Plant and Equipment Supervisor, Monadelphous Engineering Pty Ltd.
Witnesses for the Regulator were:
· Robert Fellows - Electrician - Monadelphous Engineering Pty Ltd;
· Dr Ian Brown - Consultant Respiratory and Sleep Physician.
Overview of the Applicant's claim
Primarily, the Applicant states that "after full consideration of both the medical and factual evidence, that the decision of the Regulator to accept the claim cannot be sustained because it cannot be safely established that any incident in the worker's work can be regarded as 'a significant contributing factor' to the worker's lung condition in November 2013."
While accepting that the worker suffered from COPD, the Applicant says that there are two factors which require consideration by the Commission in determining whether the Regulator's decision should stand.
Point 1The first factor relates to the worker's medical history and whether he gave a true account of this history to Dr Brown.
a)The worker had not told Dr Brown of his cigarette smoking history.
b)That there had been no mention by the worker of suffering from dust at the workplace to any Doctor or Hospital he attended around the time of the alleged exacerbation.
Point 2 The second factor relates to whether there was any dust at the workplace to the degree claimed by the worker.
The Applicant states that based upon the evidence contained within 1 - 4 above, the Commission should consider whether the worker's evidence is credible.
Medical Evidence
Point 1
Dr Brown was the only medical practitioner to give oral evidence before the Commission.
Dr Brown is a Consultant Respiratory and Sleep Physician with considerable experience in Thoracic Medicine, Asthma, Bronchitis, Emphysema, Cystic Fibrosis, Occupational Lung Disease, Bronchoscopy and Sleep Medicine [Exhibit 8(b)].
Dr Brown described the worker's condition as an aggravation of longstanding COPD. In explaining that, Dr Brown stated:
"Mr Fellows has significant chronic obstructive pulmonary disease, which in other parts of the medical work order is also referred to as COPD or chronic obstructive airways disease, and they are the same thing, and they actually form a clinical term which correlates with a combination of chronic bronchitis, emphysema, sometimes some components of asthma, but they are basically - cause airways obstruction, lung destruction with emphysema, which is the formation of lung cysts and varying amounts of airway inflammation with mucus, airway spasm and wheezing. So there - it's a - it's a combination - it's a term that's grown up particularly to clarify the association of emphysema with chronic bronchitis, which often has a common smoking related origin, so they occur together, and each component has its own characteristics but in COPD we recognize that they are a combined condition" [T2-63].
Dr Brown explained how dust specifically might aggravate COPD by saying that people with COPD are more sensitive to the effects of dust. He also said that COPD could be affected from changes in temperature, humidity, dust, infection, exercise, stress and anxiety, amongst other things [T2-63].
Dr Brown was asked by the Regulator whether an infected exacerbation and a dust-related aggravation might each have a role to play in the aggravation that it believed had occurred. Dr Brown said that if the worker had a pre-existing infection at the time he would be more sensitive to other things such as dust.
Dr Brown did not think that the infective component at the time period in question was the major component, but "it seemed to be historically more from the dust at the time" [T2-64].
Dr Brown also said that previous exacerbations when the worker had gone to the Caboolture Hospital were more clearly related to infective episodes with pneumonia.
The Applicant identified what it viewed as being the significant factors taken from Dr Brown's evidence as follows:
a) The worker's breathlessness deteriorated significantly in 2013 when he was taken off the work site by the Ambulance Service to the local Hospital.
b) At that time, the worker was specifically affected by dust from rock blasting activities in the area.
c) There were three incidents at the Mine that led to the worker calling paramedics with similar episodes of breathlessness.
d) The worker had previously worked at mine sites in Emerald and Blair Athol over a four-year period and coped reasonably well.
e) The worker had a prior Hospital admission with pneumonia in April 2011 after a flu-like illness.
f) The worker had occasional childhood bronchitis.
g) The worker ceased smoking in 2011.
h) The worker did not recall any significant chest pain.
In cross-examination, the Applicant sought to ascertain what documentation and reports Dr Brown had before him in forming his opinion.
Dr Brown reported that he had considered the following:
· The worker's self-report to him of his medical history;
· Dr Brown's own reports to WorkCover of March 2014 and April 2014;
· A report of 11 September 2014 - after contact had been made by Sparke Helmore (Solicitors) which the Regulator said "were supplied with a lot more information by way of medical reports in respect of Mr Fellows".
The Applicant asked Dr Brown whether, at the time of making his first report, he had little by way of background records from the Caboolture Hospital. Dr Brown agreed with this proposition [T2-65].
The Applicant asked Dr Brown if he had been told the following by the worker in his self-report:
· Had the worker told Dr Brown that his breathlessness deteriorated significantly in 2013 when he was taken off a worksite at Caval Ridge Mine. Dr Brown said he had been told this by the worker.
· Had the worker told Dr Brown that he had suffered from shortness of breath or breathlessness prior to that time (i.e. 2013). Dr Brown agreed that the worker had told him of prior breathlessness. Dr Brown said "It's just - that's correct, and previously - it was much worse in that previously he'd been able to cycle at the - at the site and that he - that he didn't have similar breathlessness previously" [T2-66].
· Dr Brown also agreed that the worker had told him that he had been taken by ambulance to the local Hospital and that the history he had given to Dr Brown was that he was significantly affected by dust from rock blasting activities.
· Also agreed was that the worker had told Dr Brown that he had been significantly breathless overnight and experienced a significant increase in cough, sputum and wheezing. The worker had also advised Dr Brown that there had been three similar incidences which had led paramedics to be called to see him.
· Dr Brown agreed that the worker said he had previously had medical examinations concerning lung functions on 17 April, 28 June and 7 August 2011.
The Applicant asked Dr Brown "Do you accept the proposition that this man has got emphysema or COPD and if he's - but he's compliant with his medication, his spirometry function on testing should be - should reveal as being normal?"Dr Brown responded "The spirometry function may be normal with emphysema or it may show an obstructive pattern" [T2-66].
The Applicant pressed the point "but if he's compliant with his medication, normal spirometry testing might well ensure normal results?"Dr Brown responded "Yes, if he's got reversible component and uses his medicines that will bring it back to normal" [T2-67].
The Applicant then said "Now clearly in that assessment of him, he told you nothing about what had happened in the hospital in Perth a week earlier, did he?" and Dr Brown responded that he hadn't heard about that.
Dr Brown said he's been aware that the worker was exposed to considerable dust at the workplace and that he had ceased smoking in 2011.
The Applicant asked "well, your opinion may well be different if it could be shown that he continued to smoke. Do you agree with that?" Dr Brown responded "It is. Smoking at the time of the exacerbation that - that would - could well be a factor" [T2-68].
On this point, the Applicant stated that Dr Brown had been informed by the worker that he had ceased smoking in 2011. However, the Applicant also said that in Dr Brown's evidence "he conceded that if the worker was still smoking at the time of the onset of this present condition, then that factor would have exacerbated his underlying condition" [T2-67]. In my view, Dr Brown corrected himself after saying the word "would" to "could" be a factor.
In terms of Dr Brown's knowledge or otherwise of the worker's visit to a Perth Hospital on 31/07/2013 to 1/8/2013, while Dr Brown said he was unaware of that, his report of 11 September 2014 [Exhibit 8(b)] (under the heading of "Documents Received in the Solicitor's Correspondence") shows that the medical records from Royal Perth Hospital are included. While the worker might not have mentioned the Perth Hospital to Dr Brown, it appears obvious that Dr Brown was in possession of those records.
Those records state "Principal diagnosis - infective exacerbation of COPD".
To this point, in any event, Dr Brown stated that if the worker had an infection at this time "then a pre-existing or a concomitant infection that was developing would make the symptoms worse for the same amount of exposure" [T2-64].
The Regulator said that the worker's evidence was that he had sought medical attention at a mine site in Western Australia because he was dehydrated. His evidence was that the medical staff who attended him over-reacted to his blood oxygen saturation levels which were chronically low due to his COPD and consequently he was transferred to the Royal Perth Hospital. As far as the worker was concerned it was a dehydration issue and a week later he passed a mine medical for the Applicant. He did not consider it to be a major event.
Dr Brown, having considered the worker's self-report and the medical reports available to him, had drawn the conclusion that the dust on site in October 2013 was a contributing factor to the aggravation of the worker's condition [T2-63].
1 a)
The Applicant questioned the worker about his cigarette smoking history.
The workers' medical records obtained from either visits to a medical practitioner or from a Hospital show:
· The worker had told Dr Brown that he had been a smoker since he was 13 years old but had given cigarettes up in 2011.
· Prior to October 2013, the worker had been in Hospital where he said he had been diagnosed with the lung condition COPD.
· In January 2013, the worker attended a Doctor in Moranbah. Those records state that the worker was "stressed, smokes +++".
· On 12 February 2013, another entry records "back to smoking last Christmas".
The worker said that he had gone to the Doctor on 12 February 2013 to get a prescription for Champix (a medication specifically designed to quit smoking) for his flat-mate. The worker believed it was a cheaper proposition to get a prescription from a Doctor for Champix than to buy it in a Pharmacy.
The Perth Royal Hospital records of 1 August 2013 included an entry which said "Patient currently smokes 12 cigarettes a day – used to smoke 50 cigarettes a day…".
The worker said he hadn't been smoking at that time but was using a nicotine inhaler (which he held up to show the Commission) and he believed it was that to which he was referring.
I have accepted that the worker was using a nicotine inhaler for some time in order to resolve his smoking problem. In accepting this, I note that the worker had no reason to lie to the Commission. Whether the time period he nominated for quitting smoking was accurate or not and whether or not he led medical practitioners to believe that he had continued/or quit smoking at a particular time, I believe that he used his best efforts to recall the steps he had taken to quit smoking. I have not accepted that his evidence around this point seriously threatens his credibility on the matter.
For reasons outlined in paragraph 72, I formed the view that the worker was an honest person, notwithstanding that sometimes he became bewildered at some of the medical reports and various entries. What must be remembered in all of this is that worker was an unsophisticated man who was giving a health history to Doctors and at Hospitals on occasions when he was often very ill. I accepted his evidence that on occasions other persons filled out forms for him.
On the question of the worker's smoking habits, the following question was answered by Dr Brown in his Report of 11 September 2014:
"If contrary to his denials, the claimant continued smoking until at least 2013, the extent to which that caused or contributed to the development of his condition and to what extent, if any, his continued smoking was a contributing factor to any injury or condition sustained in the period 3 to 9 October 2013."
"Continued smoking, if it had occurred would have been a cause of deteriorating lung function in terms of the spirometry and lung diffusion measurements which would make him more likely to have severe exacerbations with a similar stimulus and would increase the likelihood of infective exacerbations. The deterioration from continued smoking is likely to be a slow and steady increase in decline of lung function rather than a major exacerbating factor which resulted in acute deterioration on the given day. The continued smoking history in a man who has already demonstrated a propensity to smoking related lung disease would contribute to a continuing decline in lung function and by way of increased sputum production make infective exacerbations more frequent as well."[Regulator's emphasis]
The Regulator states that "smoking may have gradually increased the susceptibility to exacerbations but it would not have caused acute exacerbation such as the worker experienced in October 2013. Most importantly, Dr Brown does not say that if the worker was continuing to smoke then that would exclude dust exposure as a significant contributing factor to his exacerbation. Dr Brown was aware in preparing this report of the evidence suggesting the appellant may have continued to smoke but he did not alter his view as to causation."
1 b)
While the Applicant stated that the worker had not mentioned 'dust' as being an issue for him in any medical records, this is not correct. The Applicant, in its submissions, concedes the point that Dr Goodwin's Report of 9 October 2013 makes reference to dust and wind but that the record is not supportive of the severity of dust exposure as alleged by the worker. That dust was not mentioned at the visit to Dr Goodwin on 5 October 2013 does not in my view detract from the worker's claim regarding the level of dust on the worksite on 3, 4 and 5 October 2013. Those issues were clearly ventilated to Dr Goodwin on 9 October 2013.
It should be noted that Dr Goodwin's report not only stated "further episode of breathlessness, out in dust and wind today" but also "some doubt about his ability to remain onsite" and "try mask to minimize dust. Will look at another work area where less exposed".
In my view, Dr Goodwin's reporting of dust is sufficient to show that he placed some significance on the question of dust to the point that he noted that the worker was looking to work in an area less exposed [Exhibit 24].
Point 2
On 5 October 2013, the worker said he felt "crook". He said that dust was sitting on the railings at the worksite. He thought the dust was the result of explosions from dynamite and from an area where other workers were rock blasting [T2-24]. On that day, the worker said that he and the other workers ended up having to have time off because of the weather [T2-26].
When asked whether there were other sources of dust, the worker said dust had come from stockpiles of dust and road dust and that there was "dust everywhere" [T2-27].
Exhibit 41 indicates that on 3 October 2013, the wind was registered at 20 kph (NNW) escalating to 59 kph (SSW) at 4.21pm. At any of these readings, this indicates that 3 October 2013 was a windy and gusty day. This indication, within context, corroborates the worker's evidence of wind gusts on that day.
The worker was also asked what procedures were undertaken by the employer in these circumstances. He said the employer had a water truck, "but their water truck didn't work sometimes, and the – and the other time they didn't have anyone trained, authorized and competent to drive it because Grant had left" [T2-27].
The worker's evidence was that there were also other water trucks on site (with other employers) and the suppression of dust lasted about 20 minutes after an area had been sprayed.
The worker was asked whether the employer provided dust masks or respirators and he replied that the only time he had received a dust mask was after he had seen Dr Goodwin on 6 October 2013 because the employer didn't have any masks on site [T2-27].
The worker said a "take it or leave it" situation existed at the workplace when the issue of dust was raised. The worker said that what would be said in response to questions regarding dust was that "if you didn't want to work there, go - if you didn't want to put up with the conditions" [T2-28].
On 5 October 2013, the worker said he was so sick that he had gone to see Dr Goodwin on site. Dr Goodwin gave him a nebulizer, oxygen and then he was sent to the Moranbah Hospital.
In the medical notes it was stated that the worker had been "acutely short of breath walking up stairs today" and that he had a "cough with purulent sputum last few days".
Dr Goodwin had stated in his notes that "Apparently had improved by the time he got to hospital and was sent home and feels back to usual self".
The Applicant had queried the worker's evidence where he stated that the dust and weather was so bad on 3 October 2013 that the workers had to take shelter and had to pull the cranes down. The Applicant said this factor had not been raised by the worker in his evidence-in-chief.
The evidence of the three witnesses called by the Applicant has been considered.
· Mr Hopper's evidence was that he had not recalled incidents in October 2013, which had been the subject of the worker's evidence.
· He did, however, recall having a discussion with the worker on a day when he thought the worker was suffering from dehydration. A decision had been made to take the worker to the Moranbah Hospital, but he noted that the worker had been released from the Hospital on the same day.
· The only other recollection of Mr Hopper's was that he had a discussion with the worker when he indicated that he was not well and he would consider retiring. However, Mr Hopper could not recall when this discussion occurred.
· Mr Kickbush's evidence was that he recalled generally that on the worksite during late September to October 2013 there had been excavation works underway together with rock breaking both of which generate dust. But he said when these activities were occurring there was a water truck with a hose suppressing the dust [T1-30].
· Mr Kickbush was aware that Bechtel had taken some samples of dust but he didn't know what the levels were. The evidence suggested that the rock crushing work was being performed between 1 and 2 kilometres away from where the worker was working.
· Mr Kickbush, in cross examination, agreed that the whole surface of the area where work was being carried out by the employer at this site was covered in dust. He also agreed that when excavation was occurring, a pile of dust could be left and that it was possible on a windy day for this dust to be picked up and spread.
· Mr Patten said that water trucks were used on both sides of the site. He said that there would be around 2 to 3 water trucks being used on any given day [T1-48].
· He stated that if a water truck was required in any area, all that was required was a radio call and the truck would be called [T1-48]. Workers could also complete Hazard Cards to record their concerns regarding dust.
Based upon the evidence contained within Points 1-2 above, the Applicant queries the credibility of the worker's evidence.
The Applicant submits that the Commission should question two factors in determining whether the worker's evidence is credible - his account of his medical history and whether there was dust on the worksite at the level stated by the worker and on the dates nominated by the worker.
In October 2013, Bechtel prepared a Report entitled "Personal Dust Sampling Program Report Bechtel Caval Ridge October 2013." The Report details a dust sampling program conducted between 3 October 2013 and 13 October 2013. The Report was admitted into evidence by consent. That report states "In conclusion not all dusts have the same degree of health hazard to workers and their harmfulness will depend on the following factors:
· Dust composition: Chemical and Mineralogy;
· Dust concentration: on weight basis (ug/m3)Particle size and shape;
· Particle size and shape; and
· Exposure time.
The following are the submissions made by the Regulator concerning this Report. The Report shows that:
(a)the scope of the report notes that respirable dust is created during construction activities by breaking, cutting, grinding, crushing and excavating rock type materia1;
(b)the air quality objective for health and wellbeing set by the Environmental Protection (Air) Policy 2008 made pursuant to the Environmental Protection Act 1994 for Total Suspended Particulates (TSP) over an 8 hour working day (Time Weighted Average (TWA)) is 90µg/m;
(c)TSP measures dust particles with an aerodynamic diameter of less than 50µm which are small enough to penetrate the nose and upper respiratory system and deep into the lungs but most damage to human health is done by particles with a size less than 10µm due to their ability to reach the lower regions of the respiratory system, and those particles include respirable quartz;
(d)the BESH Occupational Exposure Limit risk categories for respirable quartz are:
(i)Low risk: <0.025mg/m;
(ii)Medium risk: 0.025 - 0.050; and
(iii)High risk: >0.050;
(e)Bechtel conducted 2 samples on the south side of the site on 3 October 20 I3 and:
(i)the sample closest to where Mr Fellows was working, conducted on a Whittens employee near Caval South conveyor/CHP, recorded a TSP level of 181µg/m3, which is over twice the recommended level;
(ii)that sample also recorded a respirable quartz reading of 0.208, which is over 4 times the 'High risk' threshold and over 8 times the top of the 'Low risk' threshold;
(iii)the other sample was taken at the area of 'Omega South gate security hut' and recorded a TSP level of 102µg/m3, which is in excess of the recommended level; (The worker's evidence was that, that location was the gate on the south side of the site where the buses entered the site, and was about 8km from where he was working [T2-35]);
(iv)both south side locations are rated in Table 4 on page 7 as in the category 'At Risk' for TSP;
(v)the 'Activity/Comments' column of Table 1 on page 4 indicates that the Whittens employee tested was engaged in "Trenching, rock-breaking and excavation" on 3 October 2013, demonstrating that those activities were occurring at that location on that day;
(vi)the security gate workers were not apparently engaged in dust-generating activities but their location still recorded dust in excess of the recommended level, so presumably any dust at that location must have carried on the wind;
(vii)so both areas sampled on the south side on 3 October recorded dust at levels considered to place workers at risk;
(f)no further samples were taken at either of those locations as part of the sampling program but assuming recommendations included in the report were not implemented until at least after the testing was completed (if at all), there is a strong prospect that the dust levels at those locations remained the same on other days during October 2013, and possibly on every day;
(g)no samples were taken on 4 October 2013 and so we cannot know whether levels in the vicinity of the worker exceeded relevant limits or not;
(h)the only sample apparently taken on 5 October 2013:
(i)was from a location noted as 'Abigroup MIA', which Mr Kickbush was unable to identify with certainty but indicated may be a location on the south side about 500 metres from where Mr Fellows was working on that day [T1-31]; and
(ii)recorded a TSP level of 313, which is almost 3.5 times the recommended level;
(i)the only sample taken on 9 October 2013:
(i)was from a location identified as 'Thiess northern quarry' which Mr Kickbush identified as on the north side about 1.5 to 2km away [T1-31]; and
(ii)recorded a TSP level of a staggering 8,689, which is going on for 100 times the recommended level; and
(j)the recommended Exposure Reduction Controls for the area of the Whittens South conveyor/CHP were to remove personnel downwind, application of wet dust suppression methods, personal respirators and rock crushing warning signs, however no evidence was given that any procedures changed and the only apparent exposure control applied was ongoing use of water trucks.
Primarily what was found from the two samples taken on the south side of the site on 3 October 2013 was that the dust was at a level which was considered to place workers at risk. The Regulator stated "there is a strong prospect that the dust levels at those locations remained the same on other days during October 2013 and possibly on every day."
Against those propositions the Applicant submits that the Regulator had placed much store upon the Bechtel Report. The Regulator commented that the Applicant had said that the Bechtel sampling program "only shows that one worker wearing a personal dust monitor showed a high reading for 3 October 2013." The Regulator says that is a suggestion that there were many workers wearing personal dust monitors on those days. However, the Report shows that only 3 samples were taken on 3 October 2013, and 2 out of the 3 showed "at risk" readings with both of them on the same south side. The Regulator restated that the sample taken near where the worker was working was over twice the recommended level.
The Regulator submits that the only evidence available as to measures taken to reduce dust exposure was that water trucks were used. The employer only utilized one water truck on the north side and one on the south side of the site. There were also other contractors on site and some utilized their own water trucks.
The Regulator referred to the fact that dust suppression methods were being employed in early October 2013 and this had not prevented the dust readings in the Bechtel sampling.
The corroborating evidence from Dr Goodwin's records of 9 October 2013 is also noted.
The evidence also of Mr Kickbush has also been considered where he accepted that, on a windy day, dust from could be spread from the piles which had accumulated after rock blasting.
Further evidence from the Bechtel report assists in corroborating that dust was an issue on that site.
The Regulator submitted that "the fact that it was considered necessary to engage water trucks, that workers completed hazard cards with respect to dust and the fact that Bechtel conducted a dust sampling program, all show that dust was a serious issue on site." That view is accepted by the Commission.
There is little question, in my view, that the worker's evidence around the question of dust on the worksite during 3, 4 and 5 October 2013 is credible. The evidence shows that the dust on the worksite on those days was at a level of severity as to have had the impact upon the worker as claimed.
Conclusion
In terms of the worker's evidence concerning his medical history, it should be stated at the outset, that the worker is not affected by either possible outcome in this matter as he has been paid compensation and a repayment of that compensation would not occur if his evidence was not accepted by the Commission [Regulator's submissions point 7].
The worker had health problems for quite some time. His explanation of those matters did not always match medical records. I formed the view, during the course of his evidence, that he was certainly concerned about his health, but that he had a less than usual interest in the specifics (or medical terms) of his various health complaints.
In describing these complaints, I accept that he misconstrued questions asked of him and provided ambiguous responses on occasions. However, I did not find this disingenuous on his part. The worker, in my view, presented as a knock-about, unsophisticated type of person who responded to questions in a blunt, matter of fact manner without any intent to mislead. The worker advised Counsel for the Applicant that he was not clever and had only gone to school until the age of 13. The Respondent states that "He was impatient with what he perceived to be attempts to twist his words but would generally have impressed as doing the best to recall and explain relevant factors". In my view, that is an accurate assessment of the worker.
I accept that in the giving of his evidence he had simply forgotten some events through the effluxion of time and the lack of relevance to some of these events to him.
In relation to his smoking history, Dr Brown said the worker had told him he had given up smoking in 2011. Dr Brown was queried by the Applicant as to whether his view would alter if it was shown that the worker had continued his smoking beyond 2011. Dr Brown's view was that smoking could be a factor if the worker was smoking at the time of the exacerbation of his pre-existing lung condition.
To the issue of whether or not the worker continued to smoke after 2011, the Regulator reiterated the views of Dr Brown in stating that these "are only issues going to the potential long term gradual deterioration of the worker's lung condition, or the overall make-up of that condition. They do not alter the fact that the worker sustained a major exacerbation of his condition in October 2013, in the context of the occupational exposure to dust" [Regulator's Submissions Point 8.10].
I have considered fully the Applicant's claim that the question of smoking is not only relevant from a medical perspective, but also as it relates to question of the worker's credibility. I have found the worker to be a credible witness. I have formed this view based upon his demeanour, his very clear attempts to assist the Commission, and what I viewed as his attempt to recall events accurately. His account of events sometimes differed from the notes on various medical reports but it is clear that he was giving that information to Doctors and Hospitals during periods when he was clearly unwell. Coupled with his lack of specificity regarding the description of his various ailments, I have accepted his evidence as truthful.
I have determined that the worker sustained an injury in the form of an aggravation of pre-existing COPD in October 2013.
Dr Brown was the only medical practitioner to give oral evidence before the Commission and his conclusion is that the aggravation was contributed to by the occupational dust to which the worker was exposed at the Caval Ridge Mine site.
No contrary medical evidence was called.
The Regulator submits that the only real basis upon which the applicant can challenge the finding is to claim that the worker was not exposed to dust in accordance with the history given to Dr Brown.
In my view, the Applicant has not discharged its onus for the following reasons as detailed by the Regulator and with which I agree:
"a) The worker described observing and breathing dust where he was working on 3, 4, 5 and 9 October 2013 and on 3 November 2013:
b)The weather observations support the worker's evidence that there was gusty wind particularly on 3 October 2013:
c) The applicant did not call any witnesses who were able to specifically say that it was not dusty where the worker was on any of those dates;
d) The level of dust necessary to aggravate the worker's condition, given his pre-existing condition, was not a level which would necessarily be hazardous to ordinary workers;
e) Consequently, it is no evidence of a lack of sufficient dust that:
(i)hazardous levels of dust were not recorded by air quality monitoring exactly where the worker was working on relevant dates; or
(ii)that hazard cards citing dust were not generated on any of the relevant dates.
f) nonetheless, in fact;
(i)there is evidence of numerous dust generating activities on site and
(ii)that the employer knew that dust was an issue;
(iii)Hazardous levels of dust were recorded in the vicinity of where Mr Fellows was working on relevant dates; and
(iv)The medical evidence is consistent with dust contributing to the aggravation."
The Appeal is dismissed and the Commission confirms the decision of the Regulator dated 23 April 2014 that the claim is one for acceptance. The Commission orders that the Applicant pay the Respondent's costs of and incidental to the Appeal.
Order accordingly.
0
0
0