O'Neill v James Sweetman Earthmoving Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	O’Neill v James Sweetman Earthmoving Pty Ltd [2021] NSWPIC 231
APPLICANT:	Phillip O’Neill
RESPONDENT:	James Sweetman Earthmoving Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	7 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly compensation in respect of alleged lead poisoning; whether injury; application of deeming provision in section 19; sparse and inconsistent evidence regarding periods of employment with the respondent; lack of contemporaneous evidence of lead poisoning; recent blood lead levels moderately elevated; uncertainty as to cause of neurocognitive symptoms expressed by applicant’s medicolegal experts; Held- Commission not satisfied that applicant had discharged his evidentiary onus; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Mr Phillip O’Neill (the applicant) claims that he suffered an injury in the nature of lead poisoning in the course of his employment with James Sweetman Earthmoving Pty Ltd (the respondent).
A WorkCover Certificate of Capacity was first issued in relation to the alleged injury on 27 February 2020 and a Worker’s Injury Claim form was completed on 18 March 2020.
On 14 May 2020, the respondent’s insurer disputed liability for the injury by a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The applicant sought internal review of the respondent’s decision on 16 July 2020. Notices maintaining the decision to dispute liability were issued on 13 August 2020 and 3 March 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 26 March 2021. The applicant seeks weekly compensation for the period 18 March 2020 to 26 March 2021 based on pre-injury average weekly earnings (PIAWE) of $800 per week.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained an injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) as alleged;
(b) whether employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act;

(c) whether the applicant is barred from recovering compensation pursuant to ss 254 and/or 261 of the 1998 Act, and

(d) the extent and quantification of incapacity during the period of weekly compensation claimed.

PROCEDURE BEFORE THE COMMISSION

The matter initially proceeded to teleconference on 23 April 2021. On that occasion, I expressed concerns as to the preparation of the applicant’s case but was persuaded to grant leave to the applicant to issue Directions for Production to several producers on the basis that the applicant had previously attempted without success to obtain relevant material from those producers.
The time in which the applicant was permitted to serve a Notice for Production on the respondent for materials related to his employment was also extended by seven days.
The parties appeared for conciliation conference and arbitration hearing on 21 June 2021. The applicant was represented by Mr Dan Steiner of counsel, instructed by Mr Phillip Francis. The respondent was represented by Mr Craig Tanner of counsel instructed by
Mr Paul Flocco. A representative from the insurer was also present.
During the conciliation conference, the applicant informed me that a Notice for Production had been served on the respondent on 28 April 2021 but had not been complied with. The applicant applied for a direction to be made requiring the respondent to produce the documents requested.
After hearing submissions from both parties, I declined the application for reasons which were given orally and recorded on the transcript. Amongst other things, it was noted that the Commission Rules provide for an exchange of documents at an early stage. The Notice for Production was not before me and I had no evidence of its service. Even accepting that it was served on 28 April 2021, this would have required compliance by the respondent on or before 5 May 2021. The applicant had not availed himself of the procedure provided by rule 41(6) when the time for compliance had expired. No other attempt to secure compliance or otherwise make contact with the Commission with regard to the matter had been made in the six weeks that followed.
Noting that a direction at such a late stage would necessitate an adjournment of the proceedings, the objects of the Commission, my concerns over the state of the other evidence relied on by the applicant and the ability of the applicant to discontinue and recommence proceedings without incurring a costs penalty, I was not persuaded that a direction should be issued.
Following a further period of conciliation, I was informed that the applicant had given instructions to proceed to arbitration of the substantive issues in dispute. I agreed to this course whilst noting on the record that I had expressed concerns during the conciliation and earlier in the arbitration over the current state of the applicant’s evidence.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents; and

(c) documents attached to an Application to Admit Late Documents lodged by the respondent on 25 May 2021.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 19 August 2020.
The applicant said he was employed by the respondent in or about 2003 to 2004 at the Pasminco mine site. The applicant said he worked on the mine site for over 12 months. During that time, the applicant was undertaking very deep earthworks which involved excavating and moving earth down quite deep.
In or about August 2015 to December 2015, the applicant worked for JE and J Robinson Pty Ltd. The applicant’s work involved excavating and earthmoving work near or on the surface. The applicant was involved primarily in digging and building roads.
By August 2015, when the applicant started work with Robinson, he believed any lead at the Pasminco site had been removed. The applicant did not believe that he was exposed to lead during his tenure with Robinson.

The applicant expressed the belief that he had only been exposed to lead in or about 2003 to 2004 when working with the respondent.
The applicant said that if he had been exposed to lead in 2013-14 it was in smaller amounts due to the depth of the excavation and only having been employed for a period of about four months.

Mr Christopher O’Neill

The applicant also relies on the evidence of his son, Christopher Anthony O’Neill, set out in a written statement made on 10 March 2021.
Mr O’Neill said he was employed for the respondent at the “Cobble Creek” Pasminco mine site in about 2009 or 2010. The Pasminco mine site was known to be heavily contaminated with lead.
While he was employed by the respondent, Mr O’Neill was required to have a blood test every fortnight in order to continue working. This was to ensure that his lead levels were not too high. Mr O’Neill said he believed everyone had their blood tests undertaken at Laverty Pathology in Cardiff. Mr O’Neill said he believed the applicant would have had blood tests undertaken at this location as well.
Mr O’Neill said due to his exposure to lead his blood lead levels got to about 76 mcg/dL. Mr O’Neill was forced to stop working for the respondent but never made a workers compensation claim.
Mr O’Neill said he recommended his father, the applicant, as a replacement driver on a Caterpillar 320B Roton excavator. The applicant commenced work with the respondent immediately to replace him. Mr O’Neill said he saw the applicant working on the Pasminco mine site using the same excavator. Mr O’Neill believed he did some sort of handover with the applicant.
Mr O’Neill described the work he performed for the respondent:
“The work we were undertaking was to remove toxic lead poisoned soil from the Pasminco site. Someone had decided the only way to do this was to dig up all the soil down to quite deep and put it into 1000 kilogram bags, store it into shipping containers which were then sealed and sent to China. I understand that there was nowhere in Australia would take this contaminated soil.”
Mr O’Neill said that every time he attended the Pasminco site he was required to complete a hire docket. The hire docket was in triplicate and a copy was retained by the respondent, another by the Pasminco mine site the third remained with the vehicle. The respondent would not have been paid without the dockets and they would have been retained. The applicant would have completed many hire dockets during his employment with the respondent.
Mr O’Neill said the Pasminco mine site was one of the most dangerous mine sites in Australia and was well known to contain lead. There were many studies and tests done on the site before any earthmoving occurred and they would likely be retained by the Pasminco mine site company.

Evidence of employment

The applicant has provided individual tax returns dating from 1990 to 2019. It is not possible to determine from the information provided in these documents any income received from the respondent. The applicant has also provided PAYG summaries from 2011 to 2019. The PAYG summaries are from a number of different employers including several earthmoving businesses. There are no PAYG summaries from the respondent.
The respondent has relied on documents produced by the City of Newcastle under a Direction for Production lodged by the applicant’s solicitors. Amongst those materials is a letter, dated 29 August 2007, terminating the applicant’s employment following an investigation in response to evidence indicating that the applicant had intentionally falsified a statutory declaration.
The materials also include documents pertaining to a work injury allegedly sustained in June 2003 whilst in the employ of the City of Newcastle, as a well as a number of other disciplinary matters and compensation claims dated in the 1990s.
Pay records indicates the applicant was paid wages by the City of Newcastle between 23 August 1998 and 6 September 2007 although other documents suggest that the applicant commenced employment with the City of Newcastle as early as 1990.

Medical evidence

Records produced by Laverty Pathology in response to a Direction for Production issued by the applicant are relied on by the respondent. The records include pathology reports dating from December 2006 to September 2016.
Amongst the materials are a pathology report dated 6 April 2009 for lead testing. The pathology was requested by “Smelter Pasminco Cockle Creek”. The applicant’s lead levels were recorded to be 0.32 umol/L and 6.6 µg/dL. The reference limits noted on the report were (<0.48 umol/L) and (<10.0 µg/dL).
Notes on the report indicate:
“The Biological Occupational Exposure Limit (BOEL) for lead in blood is 2.40 umol/L (National Inorganic Lead Standard, Workcover NSW 2002).”
Clinical records from Burnett Medical Centre are in evidence. On 18 September 2019, the applicant’s general practitioner, Dr Ziaur Rahman, recorded a consultation as follows:
“Mini mental state exam
done to assess his cognitive status
His wife shows concern about his level; of intellect and functionality
He forgets things very often
he is unable to read and write complex sentences
She mentioned he lacks empathy and compassion as well
there were history of MVA with brain trauama and
was some old history of assault
wife also worries about his frustation regarding his worthlessness
He has voiced about self harm or killing himself In past
Actions:
Mini Mental State Examination: Score 22. This result indicates that mild cognitive impairment is present.
Imaging request printed to I-Med Radiology: CT Scan - Brain to check for involutional change and lacunar infarct. (recent deterioration in cognition and memory)”
The report of a CT scan of the brain performed on 18 September 2019 stated that the applicant’s brain was normal.
On 24 September 2019 Dr Rahman recorded:
“Concern about LEAD poisoning
wife thinks he has huge exposure
to Lead and silicone when he worked for some machinery farm
around 2013 -2014
Wife mentions he has –
- Stomach cramps,
-Chews finger nail
- Weight loss and
-Mood swing and
-Mmeory loss
Discussion of results of CT brain
all is normal in his brain”
The applicant was given a referral for blood lead testing. On 30 September 2019,
Dr Rahman recorded that the lead level in the applicant’s blood was high but not high enough to worry.
Dr Rahman recorded a further consultation in which lead toxicity was discussed on 22 October 2009. Further blood tests were ordered. On 30 October 2019, Dr Rahman recorded that all of the applicant’s blood tests were quite good apart from high cholesterol.
On 20 January 2020, the applicant was referred for further blood testing following a consultation recorded as:
“Lead overload
had this detected after his wife's query in Sept
now needs another levl check
meanwhile wife concerned bout his ale intake
he drinks a fair amount including 2 beers every evenign
with occasional Bourbons on top
safe ale consumption suggested”
Dr Rahman issued a certificate of capacity on 27 February 2020 indicating the applicant had no current work capacity. The diagnosis of the work-related injury was “lead poisoning/high lead level in blood”. The date of injury was said to be “unknown (2009 – 2015)”.
Dr Rahman said the applicant was first seen in relation to the injury on 24 September 2019. Asked how the injury was related to work, Dr Rahman said:
“Patient has signs and symptoms that point to possible lead exposure. Patient has history of lead exposure during the period from… He was involved in active excavating lead.”
Attached to the medical certificate were the results of blood tests for lead levels. On 24 September 2019, the applicant’s level was 0.54 umol/L and 11.2 µg/dL. On 20 January 2020 this had reduced to 0.32 umol/L and 6.6 µg/dL. The reference limits shown on the reports were (0 – 0.24 umol/L) and (0 - 5 µg/dL).
Notes on the report state:
“1.No workplace exposure: NHMRC recommends that if a person has a blood lead level greater than 5 ug/dL (0.24 urnol/L), the source of exposure should be investigated and reduced, particularly if the person is a child or pregnant woman. Chelation therapy is not recommended unless a person has high blood lead levels: 70 ug/dL (3.38 umol/L) or higher, or symptoms of high exposure to lead such as encephalopathy. (NHMRC Information Paper: Evidence on the effects of Lead on Human Health (May 2015)).
2.Workplace exposure: Recommended decision levels and sampling frequencies are detailed in Lead (inorganic) - Hazardous Chemicals Requiring Health Monitoring March 2013.
In particular, immediate removal from exposure is necessary if levels are greater than or equal to:
50 ug/dL (2.41 umol/L): Males/Females not of reproductive capacity.
20 ug/dL (0.97 umol/L): Females of reproductive capacity.
15 ug/dL (0.72 urnol/1): Females pregnant or breastfeeding.
Occupationally exposed females of reproductive age should have increased frequency of monitoring if blood lead levels are 10 ug/dL (0.48 urnol/L) or higher and removal from a lead-risk job if levels are 20 ug/dL (0.97 umol/L) or higher.
Change of reference limit according to the new NHMRC recommendation (May 2015) effective from 27/1/2016.”

Medicolegal opinions

Dr Robert Lindeman

The applicant relies on a medicolegal report prepared by haematologist, Dr Robert Lindeman, dated 3 July 2020.
Dr Lindeman referred to the clinical records from Dr Rahman and the blood tests performed on 24 September 2019 and 20 January 2020. Dr Lindeman also noted the normal CT scan of the brain.
Dr Lindeman noted that the applicant’s wife described his behaviour as odd with threats of self-harm, memory lapses, erectile dysfunction, hearing loss and increased sleep requirements. Mrs O’Neill described the applicant as being disoriented and tending to misunderstand with mumbling conversation. She also mentioned superficial sores being slow to heal and an undiagnosed presentation in 2015 for abdominal pain.
Dr Lindemann took an employment history as follows:
“In 1989, Mr O'Neill began driving excavators and bulldozers for road work construction for Newcastle City Council. He is unaware of any exposures during this period, and his work involved grading roads and drainage ditches.
Mr O'Neill was employed from 2004 for 2.5 years by James Sweetman Earthmoving. His work at that time involved clearing an old industrial site, including removal of lead for export overseas. Mr O'Neill's work involved driving an open excavator - he drove with the cabin door open throughout that period.
After he left James Sweetman Earthmoving, Mr O'Neill again worked in road construction - he again does not believe that he had any exposure to lead during this period and from his description, this sounds like a reasonable assumption.
In 2013, Mr O'Neill returned to work on the Pasminco site - his work there was similar to that from 2004 and involved remediation of the aluminium smelter site. Mr O'Neill again drove an open excavator during this period. He recalls having had second weekly blood tests during his employment but is unaware of the details of testing or of the results and assumes that they were normal.
From 2014, Mr O'Neill worked for R.J. Robinson, a construction company. He again drove heavy equipment and remained there until his retirement. Although he does not believe that he had any exposures during this period, he did sustain a workplace injury to the left shoulder in mid-2016 and remained on WorkCover until his retirement and move to Queensland in 2017.”
Dr Lindeman reported that the applicant had been documented to have moderately increased lead levels on two occasions in late 2019 in 2020. The applicant’s employment history did not suggest any periods during which he might have been exposed to lead other than his work for 2.5 years from 2004 and for six months from 2013 with the respondent.
Dr Lindeman stated:
“I therefore think that it is reasonable to attribute the elevated lead levels to those periods of employment. He has not participated in hobbies or home building or taken herbal supplements that might otherwise have resulted in lead exposure.
It would, however, be important to ascertain whether lead levels were checked during the course of Mr O'Neill's employment, as normal findings would clearly suggest that the elevated lead levels post-dated his employment.
Mr O'Neill's lead levels meet the definition of elevated blood lead levels. His 2020 level of 6.6 µg/dl is well within the goal blood lead level recognized by the US Department of Health and Human Services. Although lead is excreted via the kidneys and cleared fairly quickly, bones contain the majority of the body burden of lead in individuals with a long history of lead exposure.
At levels of 10-19 µg/dl, individuals may have hypertension, renal dysfunction and possible subclinical neurocognitive deficits and an essential tremor. Clinical neurocognitive deficits, anaemia and colic may occur at higher levels, with headaches, difficulty concentrating, irritability, depression, sleep disturbance and depression and may not be reversible with lower of lead levels.”

With regard to the relationship between the reported symptoms and the applicant’s lead levels, Dr Lindeman stated:
“In short, Mr O'Neill has been documented to have elevated blood levels some six years from his purported occupational exposure. Based on my interview with Mr and Mrs O'Neill, I found it difficult to build a picture of the time course of his neurocognitive symptoms which are the main cause of Mrs O'Neill's concern. Mr O'Neill has not had adequate investigations to exclude other causes of cognitive decline. He has not been reviewed by a neurologist or had a formal neuropsychological examination, and a non-contrast CT scan is an inadequate examination to exclude other causes. I have not seen a Bl 2 level, thyroid function tests or serological testing for syphilis. Without this information, it is difficult to definitively attribute Mr O'Neill's presentation to lead toxicity.”

Associate Professor Geoffrey Herkes

The applicant additionally relies on a medicolegal report prepared by neurologist,
A/Prof Geoffrey Herkes. dated 27 November 2020.
A/Prof Herkes took a history of the applicant being unable to work due to various musculoskeletal injuries since 2017. The applicant was examined in 2019 due to changes in his mood and cognition that had been present for at least five years. The applicant reported that his short-term memory had deteriorated markedly and he was unable to do things he was able to do previously. The applicant got lost in shopping centres, misplaced objects and forgot words and names. Mrs O’Neill reported that the applicant’s behaviour had become more erratic, he was moody and irritable and he tended to drink more alcohol than he should. Mrs O’Neill also stated that if the applicant had a spa high in magnesium he would be good for a day or two but would then deteriorate. The applicant also reported intermittent abdominal pain and headaches.
The applicant had subsequently been assessed by Dr John Reimers a neurologist. Nerve conduction studies confirmed an axonal neuropathy.
The applicant reported that he worked at the Pasminco smelter taking lead out of the ground ready for extraction from 2003 for several years. Mrs O’Neill reported that the smelter closed down in September 2003. The work at Pasminco involved working down a large hole using a machine and digging lead out of the ground. The applicant stated there was no air-conditioning in his cabin. The applicant recalled the blood tests were done every two weeks while he was working but he was not informed of any results.
Subsequently the applicant worked for a construction company but the applicant did not believe he had any exposure to heavy metals during that time.
Asked to provide an opinion as to whether employment with the respondent was the main contributing factor to lead poisoning, A/Prof Herkes responded:
“Mr O'Neill gave no other history of lead exposure during his occupations. I could elicit no history of exposure to lead paint, nor has he worked in other smelting or heavy industries where he could have been exposed. On history I could find no other source of lead exposure.
The results of a full psychometric assessment will be extremely valuable and I believe that is booked for 7 December 2020. I would be most interested in a formal report of his MRI scan. As outlined by Dr Lindeman, he should also have a full screen for other causes of cognitive decline.”
A/Prof Herkes said that if the applicant’s symptoms were due to lead toxicity the prognosis would be guarded. A/Prof Herkes noted, however, that he was not an expert on lead metabolism.
With regard to future treatment, A/Prof Herkes stated:
“If the neurological and behavioural changes are due to lead toxicity, then supportive therapy and symptomatic treatment is the appropriate course. There is no evidence of which I am aware that cognitive enhancers such as donepezil are being used in lead toxicity. If no other causes for his cognitive or behavioural change are identified, then consultation with an expert in lead metabolism (there is an expert group at Royal Brisbane Hospital) might be useful just to determine whether chelation therapy should or could be considered. In my opinion, however, the treatment options are very limited apart from supportive therapy.”

Dr Linda Thomas

Clinical psychologist, Dr Linda Thomas prepared a report for the applicant dated 16 February 2021.
Dr Thomas took a history of the applicant’s wife noticing limp wrists, shedding hair and memory loss. Mrs O’Neill initially put this down to drinking alcohol but as the symptoms progressed they were investigated further.
Dr Thomas noted a past medical history which included a head injury with coma in 1965.
Dr Thomas undertook a range of testing. The applicant’s overall performance on neuropsychological testing placed him within the range of moderate impairment and clinically significant cognitive impairment.
Dr Thomas stated:
“In my opinion, from the results of Mr O'Neill's neuropsychological assessment, the attribution of his occupational exposure to lead and his elevated blood lead levels to his neurocognitive performance is not necessarily causal or confirmed.”
Asked specifically for an opinion on the cause of the applicant’s complaints and disabilities, Dr Thomas stated:
“Mr O'Neill presents with a complex medical history of past lead exposure, current alcohol intake exceeding recommended daily consumption, previous statin use and cardiac symptoms with a family history of heart disease.
Whilst I am aware that Mr O'Neill has demonstrated elevated blood levels of lead and that lead exposure is associated with neuropathy and encephalopathy, I note that these levels have reduced over a period of some months to within borderline normal range. I am unaware if Mr Phillips has undergone any urine testing or fluorescence.”
Dr Thomas said the applicant demonstrated reduced capacity to work in relation to both his cognitive capacity and mood related disorder the applicant was unlikely to recover functioning.

Applicant’s submissions

Mr Steiner referred me to the blood test taken in September 2019 and submitted that this was sufficient to show that the applicant suffered from elevated lead levels and had an injury. Mr Steiner described the primary issue in dispute as whether the elevated lead levels were caused by employment with the respondent.
Mr Steiner referred to Schedule 1 to the Workers Compensation Regulation 2016 and s 19 of the 1987 Act and submitted that if the Commission was satisfied that the applicant sustained lead poisoning whilst employed by the respondent, the lead poisoning was deemed to have been contracted by the applicant in the course of employment and employment was deemed to have been a substantial contributing factor to the disease.
Mr Steiner submitted that on the applicant’s evidence, he was clearly working using an excavator at the Pasminco Smelter site. The applicant had given evidence that he was working handling lead on that site. It was not necessary for the applicant to handle lead with his hands, it was sufficient that it was handled with an excavator. The applicant’s evidence was not contradicted by the respondent and was sufficient to invoke Schedule 1 and s 19 of the 1987 Act.
Mr Steiner submitted that a Jones v Dunkel[1] inference should be drawn by the respondent’s refusal or failure to give evidence or a statement in the proceedings. If the respondent had any evidence that would assist the Commission or which would contradict the applicant’s evidence, one would have expected it to have been produced. Mr Steiner submitted that an inference should be drawn that the applicant’s evidence was correct and should be accepted.
[1] [1959] HCA 8.
Mr Steiner conceded that there was some confusion with regard to the dates of employment. Mr Steiner submitted that it could be discerned from the evidence before the Commission that the applicant worked for the City of Newcastle between 1998 and 2007. Mr Steiner submitted that the Commission should rely on the evidence of the applicant’s son Mr O’Neill. Mr O’Neill gave evidence that he had to resign from the Pasminco site due to elevated lead levels in 2009 or 2010. The applicant was employed in Mr O’Neill’s place at the Pasminco site. Mr Steiner submitted that the blood test taken on 6 April 2009 at the request of Pasminco must have been conducted at the commencement of employment.
The applicant had given evidence with regard to his duties handling lead using an excavator. That evidence was supported by the evidence of Mr O’Neill. In the absence of contradictory evidence from the respondent, Mr Steiner said the Commission would be comfortable in accepting Mr O’Neill’s evidence.
Mr Steiner submitted that whilst there might be some doubt with regard to the period of the applicant’s employment at the Pasminco site, the applicant was doing the best he could in the absence of any extraneous material, noting that the employment was now a long time ago.
Mr Steiner submitted that the injury was one of delayed onset. The applicant gave notice of the injury as soon as he was aware of the relationship between his symptoms of memory loss et cetera and the suggestion that those could be caused by exposure to lead. The claim was made as soon as the applicant was aware of that relationship. Mr Steiner submitted that neither ss 254 nor 261 of the 1998 Act provided a bar to the recovery of compensation.
Mr Steiner referred to the evidence of incapacity set out in the certificate of capacity issued by Dr Rahman.

Respondent’s submissions

Mr Tanner referred to the requirements of ss 254 and 261 of the 1998 Act. The applicant’s case was that he was exposed to lead whilst working at the Pasminco mine site in 2003 and 2004. The applicant’s evidence suggested knowledge of the source of injury yet no explanation had been provided as to why notice was not given at that time.
Mr Tanner submitted that it could not be assumed that the applicant was ignorant of his condition prior to 2020. The applicant had not provided any evidence as to his knowledge.
For the purposes of ss 254 and 261, Mr Tanner submitted that the respondent was prejudiced by the making of a claim in 2020 in relation to employment apparently in 2003 and 2004. No evidence had been provided from the applicant to address any ignorance or other special circumstances. It was open to the applicant to prepare a statement to that effect but he was silent on that matter. There was no medical evidence of the extent of any disablement resulting from any supposed injury. There was no evidence that any disablement was permanent. The claim was plainly made well outside the relevant timeframes.
With regard to the injury, Mr Tanner noted that the applicant described a deemed date of 1 January 2005 in the ARD. In his statement, the applicant relied on an exposure to lead in the period between 2003 and 2004.
The tax records attached to the ARD indicated that the applicant worked for a number of employers over a number of years performing earthmoving and excavation work. The applicant’s evidence suggested that he may have been exposed to lead at smaller levels in his work with other employers.
The applicant’s evidence as to the period of his employment with the respondent was contradicted by the evidence of his son, Mr O’Neill. The WorkCover certificate issued by
Dr Rahman recorded an injury date between 2004 and 2005 or “unknown”. The applicant was employed by the City of Newcastle until 2007. The applicant had made no response to those documents or made any attempt to explain his evidence in light of those documents. That evidence indicated quite clearly that the applicant could not have been in the employ of the respondent in either 2003, 2004 or 2005.
Mr Tanner described the applicant’s statement as so deficient in light of the other evidence relating to his employment history that the Commission would not be satisfied that the applicant had properly disclosed the circumstances of his employment with the respondent.
Mr Tanner referred to the clinical records including the consultation on 18 September 2019 in which the applicant’s wife reported that the applicant had “huge exposure to lead and silicone” while working on a farm in around 2013 or 2014. This evidence suggested exposure to lead in employment with a different employer in 2013 or 2014. That evidence was not addressed or explained in the applicant’s statement.
Mr Tanner also referred to the clinical record on 30 September 2019 which noted high lead levels but not high enough to worry. The applicant’s evidence failed to establish what was the pathology or the effects of the pathology on the applicant’s capacity for employment. Subsequent testing suggested the applicant’s blood tests were quite good. The clinical records noted concerns with regard to the applicant’s alcohol intake.
Mr Tanner submitted that there was no medicolegal opinion of assistance to the applicant.
Dr Lindeman’s report was based on a history of employment with the respondent from 2004 for 2.5 years, returning in 2013, which was inconsistent with the other evidence. Dr Lindeman said there was no other evidence of lead exposure from any other source, which Mr Tanner said was inconsistent with the clinical records and evidence of other employment.
Dr Lindeman considered that there had not been adequate investigations to explain the applicant’s cognitive decline. Dr Lindeman did not accept that the symptoms were attributable to lead toxicity. Dr Lindeman suggested the applicant should be seen by a neurologist and undergo psychological assessment. The applicant’s medicolegal case was merely speculative.
Mr Tanner noted A/Prof Herkes was also reluctant to provide a diagnosis and requested other forms of investigation. A/Prof Herkes was unable to provide anything definitive with regard to an opinion, and appeared to query whether the symptoms were related to lead toxicity. A/Prof Herkes also acknowledged that he was not an expert in lead metabolism.
Mr Tanner also referred to the neuropsychological testing undertaken by Dr Thomas and observed that she was unable to confirm a causal connection between the applicant’s symptoms and lead exposure. Dr Thomas also noted the reduction in lead levels suggesting no significant lead pathology.
Mr Tanner submitted that the date of injury on which the applicant relied was incompatible with the employment records of the City of Newcastle. There was plainly employment with a variety of other employers which had not been properly documented or explained by the applicant. There was evidence provided by the applicant’s wife as recorded by Dr Rahman of huge exposure to lead and silicone in around 2013 to 2014.
So far as the evidence of the applicant’s son was relevant, it suggested employment in around 2010. That evidence was also inconsistent with the suggestion in the clinical records that the applicant had a huge exposure to lead in 2013 to 2014.
Mr Tanner submitted that none of the medicolegal opinions established an injury consequent upon exposure to lead in the course of employment with the respondent. There was no evidence to establish that any incapacity for work was attributable to a work-related injury. Although the applicant had evidence of cognitive decline, the expert evidence established that there could be a variety of causes for the condition. None of the medicolegal experts had provided a clear opinion that the exposure to lead had caused the applicant to be so incapacitated.
Mr Tanner submitted that the applicant failed to establish an injury. There was a lack of evidence with respect to ss 254 and 261. The applicant’s evidence also failed to establish that any incapacity for employment resulted from injury.
Mr Tanner submitted that s 19 of the 1987 Act did not get a foothold as the applicant’s evidence did not establish employment with the respondent in the period claimed. Mr Tanner submitted that the applicant had also not provided evidence of engaging in the kinds of employment activities set out in Column 2 of Sch 1 to the Regulation.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act. In its current form, s 4 provides:

“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

This definition was introduced in 2012. Prior to the 2012 amendments, s 4 provided:

“In this Act: “injury”:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment
and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any
disease, where the employment was a contributing factor to the
aggravation, acceleration, exacerbation or deterioration,”

Clause 20, of Pt 19H Sch 6 of the 1987 Act provides that the 2012 amendment extends to a disease injury received on or after 19 June 2012 but does not apply to an injury received before that date.
Section 15 of the 1987 Act governs the date of injury and the identification of the liable employer in the case of a disease injury. Relevantly, it provides:
“(1)    If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a)  the injury shall, for the purposes of this Act, be deemed to have happened—
(i)  at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)  compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”

Section 19 of the 1987 Act sets out certain presumptions in the case of disease injuries:
“(1) If a worker, during a time when the worker is engaged in employment of a kind prescribed by the regulations as an employment to which this subsection applies, contracts a disease prescribed by the regulations as a disease that is related to employment of that kind, then for the purposes of this Act, unless the contrary is established—
(a) the disease shall be deemed to have been contracted by the worker in the course of the employment in which the worker was so engaged, and
(b) that employment shall be deemed to have been a substantial contributing factor to the disease.”
Regulation 4 of the Workers Compensation Regulation 2016 provides that the kinds of employments and diseases set out in columns 1 and 2 of Sch 1 to the Regulation are prescribed for the purposes of s 19 of the 1987 Act. Relevantly, the prescribed diseases include “poisoning by lead, its alloys or compounds, and its sequelae”. The kinds of employment prescribed for this disease include “handling of ore containing lead including fine shot in zinc factories”.
The effect of s 19 is therefore that if the applicant contracted lead poisoning during a time when he was engaged in employment entailing “handling ore containing lead”, a rebuttable presumption is established that the disease was contracted in the course of employment and that employment was a substantial contributing factor to the disease for the purposes of s 4.

The language employed in s 19 indicates that it is the applicant who bears the onus of establishing on the balance of probabilities that the preconditions to the rebuttable presumption apply. The respondent would bear the onus of rebutting the presumption. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[2] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[2] [2008] NSWCA 246.
The evidence relied on by the applicant with regard to his employment with the respondent is both sparse and inconsistent.
The applicant’s written evidence is that he was employed by the respondent in or about 2003 to 2004 for a period of over 12 months. The applicant described commencing employment with a second employer, JE and J Robinson Pty Ltd but did not believe that he was exposed to lead during this employment. The applicant also referred to possible exposure to lead in 2013 or 2014 but in smaller amounts. The applicant’s evidence did not indicate who he was employed by during the 2013 - 2014 period.
The applicant’s written evidence is contradicted by the evidence of his son, Christopher O’Neill. Mr O’Neill indicated that the applicant replaced him in employment with the respondent at the Pasminco site in 2009 or 2010. Mr O’Neill described the excavator and the type of work the applicant was engaged in and said he witnessed the applicant on the site using the same excavator as he had. Mr O’Neill did not state how long the applicant was employed by the respondent. Mr O’Neill stated that he ceased employment at the Pasminco mine site due to lead levels of about 76 mcg/dL. Mr O’Neill suggested that the applicant would have had fortnightly blood tests at Laverty Pathology during the period of his employment.
Neither the employment history given by the applicant nor that given by Mr O’Neill is corroborated by the tax returns which cover the period from 1990 to 2019 or the PAYG summaries attached to the ARD. The PAYG summaries confirm that the applicant was employed by multiple earthmoving businesses between 2011 and 2015. The applicant has not provided any evidence as to where he was employed or the nature of the work performed for those businesses, including whether there was any exposure to lead in the course of that work.
The applicant’s evidence of being employed in or about 2003 to 2004 appears to be contradicted by the employment records of the City of Newcastle which suggest that the applicant was employed there between 1990 and 2007. Nothing in those records suggests any period of employment with another employer. There is evidence of the City of Newcastle paying the applicant wages on a continuous basis between 1998 and 2007.
Different employment histories have been provided to the medicolegal experts and the applicant’s general practitioner. Dr Rahman’s certificate of capacity suggest an unknown date of injury between 2009 and 2015. The clinical record made by Dr Rahman on 24 September 2019 suggests exposure to lead in employment around 2013 to 2014 but during employment “for some machinery farm”.
Dr Lindeman took a history of the applicant being employed by the respondent for 2 ½ years from 2004. The applicant was said to have returned to the Pasminco site in 2013.
A/Prof Herkes took a history of the applicant working for the respondent at the Pasminco smelter from 2003 for several years.
The only documentary evidence before me that tends to corroborate employment at the Pasminco smelter site is a single pathology report dated 6 April 2009. Nothing on the face of that document explicitly confirms employment by the respondent. The pathology test was requested by “Smelter Pasminco Cockle Creek”.
In considering the evidence of employment, I have taken into account the passage of time since the period or periods of alleged employment and the consequent difficulties the applicant might face in corroborating such. I have also taken into account the evidence of the applicant’s cognitive difficulties and memory loss.
Having regard to the evidence from Mr O’Neill and the pathology report dated in April 2009, I would be prepared to accept that the applicant was at some point in 2009 employed in work at the Pasminco mine site. Mr O’Neill suggests that the applicant was employed during this period by the respondent although that is not explicitly corroborated by the pathology report or any other documentary evidence including the tax return for the 2009 financial year.
Mr Steiner has submitted that a Jones v Dunkel inference should be drawn from the failure by the respondent to provide any evidence in relation to the claim, including the respondent’s failure to respond to the applicant’s Notice for Production. The rule in Jones v Dunkel arises where a party fails to call or otherwise tender evidence that would have been expected to have been favourable to that party. Mr Steiner submits that the failure by the respondent to provide any evidence with regard to the applicant’s employment should lead to the acceptance of the applicant’s evidence.
The difficulty with Mr Steiner’s submission is that the applicant’s own evidence is inconsistent with the other evidence before the Commission. The applicant has not suggested in his own written statement or in the more detailed histories provided to Dr Lindeman and
A/Prof Herkes that he was employed by the respondent in 2009. No evidence attempting to reconcile the different dates of employment has been tendered by the applicant.
Mr Steiner submitted at arbitration that the Commission should accept on the evidence of
Mr O’Neill and the Laverty Pathology report that the applicant was employed in 2009 by the respondent at the Pasminco site. Had this evidence been corroborated by the applicant, I may be inclined to accept Mr Steiner’s submission. In the face of the contradictory evidence from the applicant, however, the submission is less compelling.
Even if I were to accept that the applicant was employed by the respondent at the Pasminco mine site in 2009, there is no evidence before me as to the period in which the applicant was so employed. The evidence of Mr O’Neill suggests that the applicant would have undertaken blood tests at Laverty Pathology on a fortnightly basis. The records from Laverty Pathology, however, contain only a single pathology request from Pasminco.
It is significant that the applicant’s lead levels as recorded in that pathology report were within the applicable normal range at the time and identical to the levels recorded the most recent testing done on 20 January 2020. I note, however, that the reference limits were changed with effect from 27 January 2016 such that the same results would now exceed the normal reference limits. The lead levels recorded in 2009 and 2020 were significantly less than those recorded in September 2019.
The 2009 pathology report has not been considered by any of the medicolegal experts and is not referenced by Dr Rahman. Those doctors have all considered the results recorded in September 2019 and January 2020 only. There is no opinion before me that the lead levels recorded in 2009 are evidence of “lead poisoning”.
There is no other contemporaneous evidence of the applicant’s lead levels during employment with the respondent.
The applicant’s case is reliant on an acceptance of the view that the elevated lead levels shown on testing in late 2019 and early 2020 are evidence of lead poisoning during a period in which the applicant was employed by the respondent.
Dr Lindeman’s report suggests that the 2020 level of 6.6 µg/dl was well within the goal blood lead level recognized by the US Department of Health and Human Services. Dr Lindeman’s evidence suggested that symptoms including possible subclinical neurocognitive deficits may appear at levels of 10 to 19 µg/dl. Clinical neurocognitive deficits and other symptoms may occur at higher levels.
Dr Lindeman formed the view that it was reasonable to attribute the elevated lead levels shown in the testing in late 2019 and 2020 to periods of employment with the respondent in 2004 for 2 ½ years and for 6 months in 2013. Dr Lindeman explained that conclusion by reference to the applicant not participating in hobbies, homebuilding or taking herbal supplements that might have otherwise resulted in lead exposure. Dr Lindeman’s history, however, is inconsistent with the evidence of Mr O’Neill of employment in 2009. There is no evidence to corroborate employment with the respondent in 2013. There is also some suggestion in Dr Rahman’s clinical records of possible exposure to lead in employment with an employer other than the respondent in 2013. The PAYG summaries confirm employment with multiple earthmoving businesses other than the respondent after 2011. In these circumstances, I am not satisfied that the history provides a fair climate for the acceptance of
Dr Lindeman’s opinion.
In any event, Dr Lindeman’s opinion appears to have been expressed with uncertainty having regard to his comment that it would be important to ascertain whether lead levels were checked during the course of the applicant’s employment. Normal findings would clearly suggest that the elevated lead levels post-dated that employment.
A/Prof Herkes also indicated that on the history provided to him he could find no source of lead exposure other than employment with the respondent. A/Prof Herkes opinion was however, also based on a history of employment from 2003 for several years. A/Prof Herkes also did not engage with the evidence in Dr Rahman’s clinical records of possible exposure to lead in employment with an employer other than the respondent in 2013.
Dr Thomas’s report confirms that the applicant demonstrated neurocognitive impairment and reduced capacity to work. Dr Thomas indicated that she was aware that the applicant had demonstrated elevated blood levels of lead but noted that those levels had reduced rapidly over a period of some months to within borderline normal range. Dr Thomas did not express any opinion with regard to whether the neurocognitive symptoms demonstrated were causally related to past lead exposure.
Having carefully reviewed the evidence, I am not satisfied that the applicant has established on the balance of probabilities that he contracted “lead poisoning” during a period of employment with the respondent. I am not satisfied, therefore, that s 19 of the 1987 Act operates to deem a disease to have been contracted by the applicant in the course of employment with the respondent. Nor does s 19 operate to deem employment with the respondent to have been a substantial contributing factor to the disease.
For the same reasons, I am not satisfied that the requirements of s 4 in either its current or pre-2012 form are satisfied. I am not satisfied that the applicant contracted a disease in the course of employment with the respondent.
As a result, there will be an award for the respondent.
The determination above renders it unnecessary to consider the respondent’s other notified disputes with regard to the application of ss 254 and 261 of the 1998 Act and whether the applicant was incapacitated for work as a result of the work injury.
I would note, however, that if I were satisfied the applicant had sustained an injury for the purposes of s 4 I would not be satisfied on the evidence before me that any incapacity during the period of weekly compensation claimed resulted from that injury.
None of the medicolegal experts qualified by the applicant were prepared to express an opinion that the applicant’s reported symptoms were causally related to lead exposure.
Dr Lindeman, A/Prof Herkes and Dr Thomas all gave opinions that other causes for the cognitive decline had not been adequately investigated.
Given those opinions, whilst I would be prepared to accept on the evidence that the applicant was incapacitated for work during the period of weekly compensation claimed, I would not be satisfied on the single WorkCover certificate issued by Dr Rahman and the medicolegal evidence that such incapacity resulted from an injury in the course of employment with the respondent.

[2021] NSWPIC 231

7 July 2021