Port Stephens Shire Council v Cessnock City Council
[2010] NSWWCCPD 60
•31 May 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Port Stephens Shire Council v Cessnock City Council and Anor [2010] NSWWCCPD 60 | |||||
| APPELLANT: | Port Stephens Shire Council | |||||
| FIRST RESPONDENT: SECOND RESPONDENT: | Cessnock City Council John Leslie Evans | |||||
| APPELLANT’S INSURER: FIRST RESPONDENT’S INSURER: | StateCover Mutual Limited GIO General Limited | |||||
| FILE NUMBER: | A1-9485/09 | |||||
| ARBITRATOR: | Mr M Douglas | |||||
| DATE OF ARBITRATOR’S DECISION: | 8 February 2010 | |||||
| DATE OF APPEAL DECISION: | 31 May 2010 | |||||
| SUBJECT MATTER OF DECISION: | Skin cancer; disease, sections 4, 15 and 16 of the Workers Compensation Act 1987; dispute between insurers as to liability. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Hicksons Lawyers | ||||
| First Respondent: Second Respondent: | Sparke Helmore Lawyers White Barnes Solicitors | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 8 February 2010 is revoked and the following decision is made in its place: | |||||
| 1. That the Application to Resolve a Dispute be amended so as to include a claim for compensation under section 60 of the Workers Compensation Act 1987. 2. That there be an award for the Second Respondent with respect to the Applicant’s claim for weekly payments of compensation and the Applicant’s claim for compensation under section 60. 3. That the First Respondent make weekly payments of compensation to the Applicant under section 36 of the Workers Compensation Act 1987 at the following rates: (a) $1,475.00 a week for the period 19 September 2008 to 31 October 2008; (b) $1,534.20 a week for the period 1 November 2008 to 16 November 2008. 4. That the First Respondent pay the Applicant compensation under section 60 for the Applicant’s costs in obtaining reasonably necessary treatment for his malignant melanoma. 5. That the First Respondent pay the Applicant’s costs as agreed or assessed. 6. That the matter be certified as complex and the costs of each party be increased by 15%. | ||||||
| Each party to pay its own costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
The second respondent, Mr John Evans, commenced employment with the first respondent, Cessnock City Council (‘Cessnock’), as a surveyor in about August 1990. He said that his duties required him to work outdoors in the sun for at least two or three days per week. He was issued with a uniform which consisted of a short-sleeved shirt and short trousers. In about 2002 there was a transition to long trousers and long-sleeved shirts.
Mr Evans developed skin cancers on various parts of his body for which he was first treated in about 1998. He required further treatment for this condition between 2003 and 2006 at the hands of Dr Gillespie. Liability for his treatment and associated absences from work was accepted by Cessnock’s insurer, GIO General Limited (‘GIO’).
Mr Evans remained at work with Cessnock until he commenced employment again as a surveyor with the appellant, Port Stephens Shire Council (‘Port Stephens’), on 19 March 2007. He said that whilst employed by Port Stephens he was issued with long-sleeved shirts, long trousers, a hat and sunscreen.
In about June 2008 he noticed further lesions on his left leg. He consulted his general practitioner, Dr Mayers on 8 July 2008. Biopsies were undertaken on 30 July 2008. Mr Evans was referred to Dr Richard Levy at the Newcastle Melanoma Clinic. He underwent surgery in September and October 2008 and was off work from 19 September to 16 November 2008 when he resumed his usual duties with Port Stephens.
Mr Evans again made a claim with the GIO which was denied on the basis that his condition was a disease for which his later employer was responsible. His claim on Port Stephen’s insurer, StateCover Mutual Limited (‘StateCover’), was also denied, principally on the basis that his employment with Port Stephens was not a substantial contributing factor to his condition.
On 19 November 2009 Mr Evans lodged an ‘Application for Expedited Assessment’ (‘the Application’) in the Commission seeking weekly benefits from 19 September to 16 November 2008. Cessnock was named as first respondent, and Port Stephens was named as second respondent. Details of his injury were noted as follows:
“Injury 1.Date of Injury: 03/04/1998; nature and conditions of employment up to 19/03/2007.
Injury 2. Date of Injury: 19/03/2007-19/09/2008.”
His Application was refused, and the matter was listed for hearing before a Commission Arbitrator on 8 February 2010. At that hearing his claim was amended to include a claim for medical expenses.
In an ex tempore decision delivered on 8 February 2010, the Arbitrator found that Mr Evan’s employment with Port Stephens was a substantial contributing factor to his injury such that Port Stephens was liable for payment of the benefits claimed.
The ‘Certificate of Determination’ dated 8 February 2010 records the Arbitrator’s orders as follows:
“1. That the Application to resolve a dispute be amended so as to include a claim for compensation under s60 of the Workers Compensation Act 1987.
2.That there be an award for the First Respondent with respect to the Applicant’s claim for weekly payments of compensation and the Applicant’s claim for compensation under s60.
3.That the Second Respondent make weekly payments of compensation to the Applicant under s36 of the Workers Compensation Act 1987 at the following rates:
a.$1,475.00 a week for the period 19 September 2008 to 31 October 2008;
b.$1,534.20 a week for the period 1 November 2008 to 16 November 2008.
4.That the Second Respondent pay the Applicant compensation under s60 for the Applicant’s costs in obtaining reasonably necessary treatment for his malignant melanoma.
5.That the Second Respondent pay the Applicant’s costs as agreed or assessed.
6.That the matter be certified as complex and the costs of each party be increased by 15%.”
It is from this decision that the appellant seeks leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by all the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
THE ISSUES IN DISPUTE
The only real issue in dispute in this matter is which insurer is liable for the claim. At the hearing, the two respondents conceded that Mr Evans was totally incapacitated for the period claimed, and was entitled to the weekly benefits and section 60 expenses he claimed.
The appellant submits that the evidence did not support a finding either that Mr Evans sustained an injury with Port Stephens within the meaning of section 4 of the 1987 Act or that his employment there was a substantial contributing factor to his injury or disease such that Cessnock is liable for the claim.
THE EVIDENCE
The medical evidence
The medical evidence in this matter was scant indeed. There were no reports from either Dr Gillespie or Dr Levy, and the parties relied upon the medical opinions of Dr Mayers and Dr Sippe, dermatologists, qualified by the GIO on behalf of Cessnock. Some medical certificates from Dr Gillespie were in evidence, but these did not assist in the resolution of the issues in dispute.
In a medical certificate dated 8 July 2008, Dr Mayers identified the employer as “Port Stephens Council (since 19 March 2007).” His response to the question: “How did the injury occur?” was “Exposure to sun.” The date of injury he identified as “3/4/98”. He confirmed that “the worker’s employment is a substantial contributing factor to this injury”. Subsequent certificates were silent on these questions.
In a report dated 7 August 2008 addressed to the GIO, Dr Mayers said:
“John Evans, who is a surveyor for Port Stephens Council, has the following clinical and dermoscopic evidence of sun damaged skin.
1. SCC [squamous cell carcinoma] mid left leg laterally.
2. SCC distal left leg laterally.
3. BCC [basal cell carcinoma] right side of face.
4. SCC right ear.Biopsies of the left leg lesions, right side of the face lesions and excision of the right ear lesion have been arranged.”
In a report dated 20 October 2009 addressed to Mr Evans’ solicitor, Dr Mayers said:
“I note John’s history of sun exposure while employed as a surveyor, initially with the Cessnock City Council and currently Port Stephens Shire Council.
John was seen on 8 July 2008. He had noticed 2 lesions on his left leg develop about one month previously. Examination of his skin revealed a possible SCC (‘squamous cell carcinoma’) over the antihelix of his right ear and a possible SCC over the right side of his face. Both lesions over the lateral aspect of his left leg had suspicious features on dermoscopy. The distal lesions had features suggestive of an SCC. The proximal lesion was Amelanotic and was uniformly pink suggesting the possibility of an Amelanotic Malignant Melanoma.
Punch biopsies were performed on 30 July 2008. The proximal leg lesion was confirmed as a malignant melanoma. The lesion removed from the right ear was a [SCC]. The lesion on the right side of the face was an Actinic Keratosis. The lesion on the distal left leg had non-specific features.
John was referred to Dr Richard Levy, surgeon, at the Newcastle Melanoma Clinic…John also had a biopsy of a lesion on his back…In my opinion it is reasonable to attribute John’s melanoma, and evidence of sun damaged skin on his arms, legs and face, to the sun exposure he has encountered in his employment…”
On 14 January 2010, the solicitors for Port Stephens wrote to Dr Mayers with the leave of the Arbitrator to clarify “some questions.” Dr Mayers was asked:
“ a. Given the numerous skin cancers (approximately 20) removed prior to 2007, is it more likely than not that the development of the malignant melanoma in the left leg in 2008 in [sic] a simple progression of the disease in existence as at 2007?
b. Is it more likely than not that Mr Evans’ condition will progress even in the absence of further exposure to the sun?
c. In your report dated 20 October 2009 you have recommended that Mr Evans practise safe sun exposure techniques. If Mr Evans has been practising those techniques during his recent employment wih Port Stephens Council (since 2007), is it more likely than not that the melanoma removed in 2008 is as a result of the exposure to sun during his employment with Cessnock Council ie up to 19 March 2007?”
In reply, Dr Mayers wrote to Port Stephens’ solicitors on 2 February 2010 as follows:
“In my opinion, it is more likely than not that the development of the malignant melanoma in the left leg…was mainly due to sun exposure sustained while working with Cessnock City Council up to 19.3.2007. Sun exposure from March 2007 until the diagnosis of the melanoma in July 2008 would have played less of a role in the development of the melanoma than prolonged sun exposure prior to March 2007.
The progression or otherwise of John’s malignant melanoma diagnosed in July 2008 is not dependant on further exposure to the sun. However, his other skin cancers are. In particular, the numerous actinic keratoses will be dependant upon sun exposure. Complete avoidance of sun exposure can result in a dramatic reduction in both the number and severity of actinic keratoses. The other skin cancers, including [SCC] and [BCC] will also be dependant on continued sun exposure. As for John’s melanoma, his employment with Cessnock City Council prior to March 2007 has, on the balance of probability, played a more significant part in the development of these skin cancers than his employment with Port Stephens Council since March 2007.”
Mr Evans consulted Dr Sippe at the request of the GIO on 3 February 2009. In a report dated 11 February 2009, Dr Sippe said:
“Mr Evans has been visiting a dermatologist, Dr Rod Gillespie, for some years for removal of solar keratoses and skin cancers…Multiple skin cancers were excised by Dr Gillespie with the last being removed in 2006. Mr Evans estimates some 20 lesions were excised, with most of these being skin cancer…
In 1990 he commenced work at Cessnock Council and continued here until 2006, moving to Port Stephens Council for the last two years. He denies ever having had any severe sunburn. His clothing at work is generally wearing shorts, shirts and work boots…
Mr Evans suffers from:
1. Chronic solar damage.
2. Past history of melanoma excision from the left leg.
3. Dysplastic nevus on the right lateral calf, possibly early melanoma.”
Dr Sippe was then asked to respond to a number of questions. These and his replies are as follows:
“Do you consider his employment with Port Stephens Council as a surveyor could have caused, contributed to, aggravated or accelerated his cancer condition? If not, what has caused his condition?
All the sun exposure that Mr Evans has suffered is relevant to the causation of his skin cancers. Chronic long term solar damage is more important than short periods and earlier sun damage in his adult life is more relevant than later sun exposure. However it is not possible to exclude any type of sun exposure in regard to the development of skin cancers or melanoma. As such, I would regard his employment with Port Stephens Council as having contributed, aggravated and accelerated his skin cancer condition and the development of his melanoma.
Is GIO liable for current claim for skin cancers on legs and back, currently with a new employer doing the same job?
I would regard all sun exposure that Mr Evans suffers from as relevant to the development of his skin cancers. Particularly, more recent sunlight is probably associated with the solar keratoses but any type of sunlight cannot be excluded as being a causative factor in the development of his skin cancers.
Is the most recent onset of the lesion classified as a recurrence or a new claim? Please provide reasoning for your opinion.
The development of the melanoma in Mr Evans’ situation is a new lesion. He has not suffered from melanoma in the past. This is related to his chronic sunlight exposure. It is possible that he could develop further melanoma, as having suffered one melanoma he is at increased risk of developing further similar tumours.”
The other evidence
Mr Evans prepared a statement dated 14 September 2009 wherein he described his working conditions at Cessnock, which I have set out earlier. He added that:
“I have had a history of skin cancers for a significant period of time. I have had various skin cancers removed from my face and arms. I have previously consulted with a specialist Dr Gillespie in Lambton…Previously when I have had time off it has been accepted and paid for by the GIO. In recent times I noticed some skin lesions on my leg. I consulted with Dr Mayers…and then I had some biopsies…this was claimed through the GIO and was paid…At the present time I am very conscious of the sun and try and give myself as much protection as possible. I have been issued with long sleeve shirts and trousers and skin block by the Port Stephens Council. I am still experiencing some skin cancer problems with my hands and face…
There has been a denial of payment of compensation to me…Some of my medical expenses have been paid however others are outstanding.”
In his StateCover claim form for Port Stephens, Mr Evans described the injury occurring as a result of “the continued effect of sun to my body while working as a surveyor from 1971 till now”. In answer to the question: “What parts of the body were affected?” he said: “Whole of body except for this claim. Face, arms and hands (covered by GIO claim details attached.” He confirmed that he had previously suffered a similar condition of “sun damaged skin. Face, arms, and hands per GIO claim attached”. The date of this injury he described as “3/4/98 to 18/3/2007”. The GIO claim form or other documentation does not appear to have been attached.
A letter to Mr Evans from the GIO dated 11 March 2003 confirmed acceptance of liability for his claim at that time, the “date of injury” being noted as “03/04/98”.
A further letter to him from the GIO dated 22 September 2008 was in the following terms:
“We refer to your above workers compensation claim and advise that on this occasion we have reimbursed your treatment expenses and time lost as requested.
Please note that GIO is liable only for treatment of both arms, both hands and your face as per your claim form and original notification of injury with your previous employer.
If you require treatment for any other body parts you will need to lodge a new claim with your current employer…”
A letter from the GIO to Port Stephens dated 2 June 2009 sought medical certificates “to substantiate the worker’s time off work…to assist us in reviewing your claim for wage reimbursement”.
In a section 74 notice dated 17 August 2009, the GIO denied liability on the grounds that Mr Evans’ condition was a disease within the meaning of sections 15 and 16 of the 1987 Act, and that his employment with Port Stephens was a substantial contributing factor to that disease.
In a section 74 notice dated 13 October 2008, StateCover denied liability stating as follows:
“We have disputed your claim because during your employment with Port Stephens Council since March 2007, you have been provided with all appropriate sun protective equipment, and you have advised StateCover that you have always worn this whilst outdoors during your occupation. You have stated that you have always worn long legged trousers, long sleeved shirts, a hat and sunscreen, since commencing with Council. Mick Loomes, your supervisor at Port Stephens Council has also confirmed that you wear long sleeved shirts and long legged trousers. He also confirms that you have been provided with a broad brimmed hat plus sunscreen, and have acknowledged the Sun Protection Policy provided by Council.”
A detailed document titled “Port Stephens Council Management Directive – Sun Protection” was included. It detailed protective clothing and other equipment provided to employees, including: “A broad spectrum sunscreen with an SPF 30+ shall be provided for workers who are required to work outdoors.” The policy was adopted on 5 January 2000. It was signed by Mr Evans on 25 July 2008 and he added: “I am aware of this directive.”
In a letter addressed to StateCover dated 9 October 2008, Mr Loomes, Port Stephens’ engineering manager, said:
“John spends roughly 3 to 4 days a week predominantly in the office. Field work would average 1 or 2 days a week and it is likely he could be in the sun for up to 5 hours on those days…
He has been issued with a broad brimmed hat and knows how to apply sunscreen. He wears long sleeved shirts and long legged trousers, not shorts. I think his glasses are tinted but could not be sure of that. I have not observed him working in the field so I cannot personally confirm if he has been wearing the hat however, his colleagues have indicated that this is indeed the case.”
On 8 May 2009, StateCover wrote to Mr Evans advising that it was “closing your claim” since “all ongoing costs for both treatment and any loss of wages have been accepted by GIO”.
THE ARBITRATOR’S FINDINGS AND REASONS
The Arbitrator commenced his determination at [T32]. Relevant portions are as follows:
“[T32] The issue between the parties is really an issue between the two respondents, and that is whether this malignant melanoma is a separate disease of earlier squamous cell cancers and basal cell cancers, and actinic keratoses that Mr Evans suffered during his employment with the first respondent and, if I find it is, whether his employment with the second respondent was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of this separate disease of malignant melanoma.
If I find on that point it is not, then it follows that the first respondent is the party liable to meet Mr Evans' claim, and if I find it is, then the second respondent is the party liable. I should say, too, that if I find that it is just the one disease, that it would be the first respondent liable to meet the claim.
[T33] Whilst working with the first respondent, Mr Evans indicates in his statement of 14 September 2009 that, until 2002, he really took scant protection or did little to protect himself from the harmful effects of the sun. He then performed his tasks in short sleeves and short trousers. In 2002 the first respondent, Cessnock City Council, provided long trousers and long-sleeved shirts. It does not appear that he was provided with sunscreen or sun block and a hat.
[T34]-[T35] Now, Dr Sippy [sic] refers to skin cancers in the plural. He says that the sun exposure is relevant to the causation of Mr Evans' skin cancers. He also says, as I've indicated earlier, that he considers that Mr Evans' employment with the Port Stephens Council as having contributed and aggravated his skin cancer condition, and the development of his melanoma. To my mind, he is differentiating between the types of cancers that Mr Evans has suffered. That is, he is distinguishing the melanoma from the other forms of cancers and skin damage that Mr Evans has suffered in the form of squamous cell cancers and basal cell cancers and actinic keratosis. And, again, that's reinforced by his answer to the third question that was posed by GIO to him where, again, he refers to skin cancers in the plural, but, in answer to 4, the fourth question, he refers to the development of the melanoma; that is, he is treating the melanoma as a discrete pathological entity.
[T35] Now, again, Dr Mayers is treating, to my mind, the skin diseases in the form of cancer that Mr Evans has suffered as being different. That is, he is treating the malignant melanoma as being different from the other skin cancers in the form of squamous cell cancers and basal cell cancers and actinic keratoses - as being different. That is consistent with what I have found to be the opinion of Dr Sippy [sic] on that point, so with respect to that issue, I do find that Mr Evans' malignant melanoma, which was excised under the hand of Dr Levey [sic] in 2008, is a different disease from the squamous cell cancers and the basal cell cancers and the actinic keratoses that Mr Evans suffered, and for which he sought treatment during his employment, as a consequence of which he was also incapacitated for work whilst with the first respondent, the Cessnock City Council.
[T35] The issue, then, I now need to decide is whether Mr Evans' employment with the second respondent was such that it was a substantial contributing factor to the aggravation, acceleration, exacerbation and deterioration of the melanoma. In terms of that issue, I am not concerned whether the actual employment that Mr Evans did caused the aggravation of the disease, but whether the nature of the work that the second respondent required of him exposed him to a risk of substantially contributing to the aggravation of that disease.
[T36] …the risk with respect to the nature of the work Mr Evans was required to do, in terms of its contribution to the aggravation of the disease, must have been real and of substance. Now, on that issue, I note that both Dr Mayers and Dr Sippy [sic] are of the view that the exposure to sun, whilst with the second respondent, would have contributed to the melanoma, to the development of the melanoma. They certainly are of the view that the longer exposure he had to the sun whilst with the first respondent would have been a greater contributor. The evidence is somewhat silent in terms of Mr Evans of exactly how much exposure there was, that is, for how long he may or may not have had his hat off, those type of issues.
[T37] There is no evidence to contradict what Dr Mayers has said. It was said to me that I should rely upon Dr Sippy [sic] as being the only expert, however, Dr Sippy [sic] does not address specifically that point. What he says, really, is that the employment with the second respondent is a contributor, although not as great a contributor as what Mr Evans' employment with the first respondent was. Given that Mr Evans has continued to have problems with the other forms of skin cancer, and given that he is still exposed to the sun in his work with the second respondent, that accords with what Dr Mayers has indicated would happen, that is, further exposure, more skin cancers. It seems to me that, in all likelihood, the contribution of Mr Evans' employment with the second respondent was real and of substance, and therefore a substantial contributing factor to the aggravation, acceleration, exacerbation and deterioration of the malignant melanoma.
[T37] In other words, it seems to me that, in all likelihood, Mr Evans' continued exposure to the sun was in the employment of the second respondent and resulted or has contributed to ongoing problems with the other forms of skin cancer, and I infer from that that the contribution that his employment with the second respondent over the period March 2007 to June 2008 to the aggravation of the malignant melanoma was substantial.”
THE RELEVANT LEGISLATION
Because of the nature of the dispute between the parties, it is appropriate to set out the terms of the relevant legislation.
Section 4 of the 1987 Act defines ‘injury’ as follows:
“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…”
Section 15 of that Act is in the following terms:
“15 Diseases of gradual process—employer liable, date of injury etc
(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.
(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission…
(4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease…”
Section 16 provides as follows:
“ Aggravation etc of diseases-employer liable, date of injury etc
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease-
(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 that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration…”
THE SUBMISSIONS AND DISCUSSION
At the hearing, the parties agreed that Mr Evans’ injury fell within the definition of section 4(b)(ii) of the 1987 Act ([T1] and [T32]). There was no dispute that Mr Evans’ ‘injury’ was a ‘disease’ in line with decisions such as Darling Island Stevedoring & Lighterage Co Ltd v Hussey [1959] HCA 55; (1959) 102 CLR 482, Commissioner of Railways v Bain [1965] HCA 5; (1965) 112 CLR 246, Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 and Perry v Tanine Pty Ltd t/as Ermington Hotel & Others [1998] NSWCC 14; (1998) 16 NSWCCR 253. It is not necessary for the particular disease to be made worse (Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond & Pegrin Pty Ltd [2006] NSWWCCPD 132). I am also satisfied that the evidence supported the finding that the disease was aggravated leading to incapacity in 2008 in line with the principles established in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 and Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88.
Although no reliance was placed on the provisions of sections 4(b)(i) or 15 of the 1987 Act, some of the parties and the Arbitrator appear to have adopted the language of those sections during the hearing, somewhat confusing the issue. Regrettably much of the transcript is noted as “inaudible” and the various authorities referred to by the parties are not clear at all. At [T21] counsel for Cessnock submitted: “It’s the risk; is the employment of a type which could result in the disease?” At [T22] Counsel for Mr Evans, again referring to “the risk” cited the decision of “Lobley.” I infer (confirmed by the Appellant in its submissions) that that reference was to Blayney Shire Council v Lobley & Another (1995) 12 NSWCCR 52 (‘Lobley’). That case involved the interpretation of section 17 of the 1987 Act relating to loss of hearing whereby a worker is only required to establish that he/she was employed in employment to “to the nature of which the injury was due…” Similar language is used in section 15. Section 16 however does not adopt that language. Compensation is payable by the employer who last employed the worker “in employment that was a substantial contributing factor to the aggravation”.
In those circumstances, the Arbitrator’s task was to determine if the evidence supported a finding that Mr Evans’ employment with Port Stephens was a substantial contributing factor to his injury.
In submissions before the Arbitrator, Port Stephens argued that the evidence supported a finding of one injury, that is one disease, and that (at [T6]) the melanoma was “one variant” of the various cancers Mr Evans had developed over the years. Cessnock however (at [T19]) submitted that the melanoma was “a separate disease in its own right and with its own distinct period of incapacity leading to a separate and distinct deemed date of injury”.
As the Appellant points out, this claim really concerned the treatment costs for the removal of the melanoma and the consequent time off work. It seems clear to me from the GIO’s letter to Mr Evans of 22 September 2008 referred to at [29] above that the GIO accepted liability for the other skin cancers diagnosed and summarised by Dr Mayers in his report of 7 August 2008 addressed to the GIO, but not in respect of the melanoma in the left leg.
The Arbitrator accepted that the melanoma was in effect a separate condition. Port Stephens in its submissions states:
“Given the paucity of the medical evidence on the issue, the appellant accepts for the purposes of this Appeal that the melanoma was a distinct disease from the previous skin cancers which affected the worker.”
Notwithstanding this concession, having carefully considered the evidence, I am not persuaded that the Arbitrator’s findings on this issue were correct.
True, as the Arbitrator noted at [T15] sun exposure is a cause, not a disease. Dr Mayers’ description of Mr Evans’ ‘injury’ was “sun damaged skin” which manifested itself in various types of skin cancers. Dr Sippe also diagnosed “Chronic solar damage”. It is true that in his report of 11 February 2009, he added that Mr Evans also suffered from a melanoma in his left leg and “possibly early melanoma” on his right calf. But reading his report as a whole, he generally refers to “his skin cancers”. I accept that the evidence clearly suggests that the melanoma on the left leg was, as Dr Sippe described it, “a new lesion” from which he had not suffered in the past. However, as Dr Sippe added, this was related to “his chronic sunlight exposure”. Skin cancers take various forms, can have different features, and their progression or otherwise may not necessarily be dependent upon further exposure to the sun. But the diagnosed disease, referred to by both Dr Mayers and Dr Sippe, is “skin cancers”. In my view, the melanoma was simply a further manifestation of his chronically solar-damaged skin, and represented just one of the several types of skin cancers Mr Evans had, as described by Dr Mayers in his report of 7 August 2008. I am not satisfied that there was sufficient evidence for the Arbitrator to conclude that the melanoma represented a separate or distinct disease.
That being the case, then it is arguable that the incapacity in 2008 was as a result of a further aggravation, acceleration, exacerbation or deterioration of the initial disease. There is no doubt, as Dr Sippe noted, that Mr Evans sustained various forms of skin cancer during his employment with Cessnock. He was treated and on occasions had time off (Dr Gillespie’s certificates). Liability was accepted by the GIO. Section 16(1)(a)(i) of the 1987 Act provides that injury is deemed to have occurred when incapacity first arose. (See Stone v Stannard Brothers LaunchServices Pty Ltd [2004] NSWCA 277).
However, it is still necessary for me to determine, in accordance with section 16(1)(b), which employer last employed Mr Evans in employment that was a substantial contributing factor to the aggravation of his disease.
The evidence on this issue is similarly scant. Neither Dr Mayers nor Dr Sippe expressed an opinion as to whether employment with Port Stephens was a substantial contributing factor to Mr Evans’ condition. Dr Mayers thought that the development of the melanoma was “mainly due to sun exposure sustained while working with Cessnock City Council”. He added that sun exposure with Port Stephens “would have played less of a role”. He concluded that Mr Evans’ employment with Cessnock “played a more significant part”. Dr Sippe said that all the sun exposure that Mr Evans had was “relevant to the causation of his skin cancers”. He concluded that employment with Port Stephens had “contributed, aggravated and accelerated his skin cancer condition and the development of his melanoma”.
Port Stephens makes a number of further submissions as to why there was insufficient evidence to conclude that Mr Evans’ employment there was a substantial contributing factor to his injury summarised as follows:
·Mr Evans himself did not state that he sustained any sun damage during his employment with Port Stephens.
·The positive evidence of safe sun practices adopted by Port Stephens is not contradicted by Mr Evans.
·Mr Evans’ signing of that directive in July 2008 is not evidence that he was unaware of it prior to that time.
·There was no evidence that the practices adopted by Cessnock since 2002 were similar to those adopted by Port Stephens. There was no evidence that Mr Evans wore a wide-brimmed hat or sunscreen at Cessnock.
·Dr Sippe’s history does not distinguish between the different practices adopted by each Council.
·Dr Mayers does not record any history of the nature of any sun exposure while at Port Stephens.
·The opinions of Dr Sippe and Dr Mayers do not satisfy the test in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (‘Makita’) and Hevi Lift (PNG)Ltd v Etherington [2005] NSWCA 42 (‘Hevi Lift’).
·Neither Dr Sippe nor Dr Mayers said (as the Arbitrator appears to have found) that solar keratoses would cease in the absence of further sunlight. Dr Mayers said that sun avoidance dramatically reduces them. This occurred, since Mr Evans had none in 2007 and only one in 2008 compared with the 20 or so prior to 2006.
·It is impossible to exclude recreational sun exposure as a cause of the singular solar keratoses that occurred in 2008.
·The Arbitrator’s conclusion that sun exposure at Port Stephens was significant such that the employment must have been a substantial contributing factor to the development of the melanoma was not based on any medical evidence nor could it be said that it follows as a matter of common knowledge and experience (Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720).
·There was no basis upon which to find that “unspecified sun exposure” with Port Stephens was a substantial contributing factor to the aggravation or acceleration of the melanoma particularly where the doctors state that chronic as opposed to short-term exposure and earlier exposure rather than later is more relevant to the disease. These factors would suggest that the part played by Port Stephens was “minimal at best and not real or of substance”. (Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324) (‘Badawi’).
·Even if there was some basis for asserting that the decision of Lobley was somehow relevant, one must still examine the “tendency, incidence or characteristics” of the employment (Dawson and others trading as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35). There were substantial differences between the characteristics of employment with each Council.
Both Mr Evans and Cessnock dispute these assertions. Their submissions in response may be summarised as follows:
·There was ample evidence of sun exposure at Port Stephens. Mr Evans confirmed that he worked part of the time outdoors.
·In his StateCover claim form, Mr Evans said that the injury occurred because of “the continued affect of the sun to my body…from 1971 to date”.
·There is no evidence that protective measures were taken by Mr Evans from the outset of his employment at Port Stephens.
·There is no evidence that Mr Evans was appraised of Port Stephens’ policy before he signed the directive in July 2008. That evidence only points to those practices having been put in place after the claim was made.
·Mr Evans’ various statements and use of the present tense suggest that he has continued to be exposed to sunlight.
·Port Stephens’ policy document confirms that protective clothing alone is insufficient and sunscreen needs to be applied frequently. There is no evidence of other protective measures such as tinted windows on Mr Evans’ vehicle.
·Dr Mayers’ certificate of 8 July 2008 refers to the cause of injury as “exposure to the sun” and adds that employment with Port Stephens was a substantial contributing factor to the injury.
·Dr Mayers does not differentiate between the two employments.
·The development of keratoses in 2008 indicates that Mr Evans continued to be exposed to sufficient levels of UV rays to cause skin damage.
·There is no evidence that prior to the development of the melanoma, the attire worn by Mr Evans as described by Dr Sippe was not in fact what he wore.
·If the medical evidence does not satisfy the Makita test, then Mr Evans’ entire claim “must fail” but a commonsense approach should be adopted and the onus in section 9A satisfied.
·The exposure with Port Stephens “was not trivial or de minimus, and neither remote nor tenuous”.
·No regard should be had to any recreational pursuits as a contributing factor.
I am of the view that there is considerable merit in the submissions made by Port Stephens. For example, Dr Sippe’s opinion is flawed because of the absence of any history of the working conditions at Port Stephens. The evidence certainly supports a finding that the practices were not similar, particularly those at Cessnock prior to 2002. There is no adequate explanation by Dr Sippe as to why he came to the conclusion that employment with Port Stephens “contributed [to], aggravated and accelerated his skin cancer condition” other than his comment that any type of sun exposure could contribute to the development of skin cancer. This in my view does not satisfy the Makita test. Dr Mayers similarly does not record any history of particular work practices.
Many of the submissions made by Mr Evans and Cessnock ignore the totality of the evidence. For example, although Dr Mayers in his certificate of 8 July 2008 wrote that “the worker’s employment is a substantial contributing factor to this injury” he noted the date of injury as 3 April 1998. He simply recorded the name of the employer as Port Stephens Council adding “since 19 March 2007”. I do not think it can be inferred from that certificate that Dr Mayers necessarily considered that employment with Port Stephens was a substantial contributing factor to the injury, particularly when read in conjunction with his other reports. The same must be said of Cessnock’s assertion that Mr Evans’ use of the present tense in his statements meant that he continued to be exposed to sunlight “for approximately half of his normal working week”. This is inconsistent with the evidence of Mr Loomes, and also Mr Evans’ statements to StateCover recorded in the section 74 Notice that he had always worn various forms of sun protection whilst at work with Port Stephens. There was simply no evidence that he took his hat off as was put to the Arbitrator at the hearing, and which he noted at [T36]. There is also no evidence that tinted windows would have in some way provided further protection (see Symbion Health Limited v Thomas [2010] NSWWCCPD 16). Recreational or other circumstances involving exposure to sunlight cannot necessarily be ignored in the context of the requirements of section 16 of the 1987 Act.
I do accept that there was certainly some evidence of exposure to sunlight in the course of Mr Evans’ employment with Port Stephens, and that there was medical evidence to support the proposition that it contributed to Mr Evans’ condition. But for the reasons stated, that evidence was unsatisfactory to the extent that it failed to adequately address the relevant issues.
My task is to determine if there was sufficient evidence to establish that such exposure constituted a substantial contributing factor to the aggravation of the disease.
In my view, there was not. As the Court of Appeal said in Badawi at [82]:
“First, and perhaps most importantly, the word “substantial”, must be given effect. It is a word of ordinary English meaning. It is a word of evaluative concept. The word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Which of the various possible shades of meaning the word bears is determined by the context: IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; 83 ALJR 585 at [154] 617 per Gummow, Hayne and Heydon JJ. Here, the concept and purpose of the introduction of s 9A was to remove the possibility of compensation for injury with only a “remote or tenuous connection with work”. This was the purpose the amendment: see the Second Reading Speech at [34] above. We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, “substantial” as it appears in s 9A means “in a manner that is real and of substance” and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, “little substance”. We agree with his Honour that it is not useful to search for or use other terms, such as “large”, or “weighty”, or by way of further example, other concepts such as “predominant”. We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in Bulga, which did not refer to Dayton and to the views of Mason P in Mercer. The words of the statute should be adhered to: “a substantial contributing factor”. The “proper link” in the legislative context was a causal connection expressed by the words “a substantial contributing factor”, meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue.”
I do not consider that the evidence in this case is sufficient to conclude that any sun exposure during the course of Mr Evans’ employment with Port Stephens could be considered “real and of substance”, particularly in the absence of any expert medical opinion on this issue, and given the additional lay evidence.
The onus lay on Mr Evans to establish that he suffered an injury within the meaning of section 4(b)(ii) of the 1987 Act whilst in the employ of Port Stephens. The evidence fell short of that requirement.
There was ample evidence however that Mr Evans sustained his injury in the course of his employment with Cessnock. Liability has been accepted by the GIO in the past. The dispute arose over the cost of treatment and time off work for the melanoma. Having determined that the melanoma was simply a further manifestation of his skin cancer condition, I am satisfied that Cessnock was the employer who last employed Mr Evans in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of his disease. Accordingly, Cessnock is liable for this claim.
There being no dispute between the parties as to the quantum of the award, it is a matter where it is appropriate to enter my own award in accordance with the provisions of section 352 of the 1998 Act.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249) I have concluded that the evidence against Port Stephens was insufficient to satisfy the requirements of section 16 (1)(b) of the 1987 Act, and accordingly, Cessnock is liable for the award.
DECISION
The decision of the Arbitrator dated 8 February 2010 is revoked, and the following decision made in its place:
1.That the Application to Resolve a Dispute be amended so as to include a claim for compensation under section 60 of the Workers Compensation Act 1987.
2. That there be an award for the Second Respondent with respect to the Applicant’s claim for weekly payments of compensation and the Applicant’s claim for compensation under section 60.
3. That the First Respondent make weekly payments of compensation to the Applicant under section 36 of the Workers Compensation Act 1987 at the following rates:
(a)$1,475.00 a week for the period 19 September 2008 to 31 October 2008;
(b)$1,534.20 a week for the period 1 November 2008 to 16 November 2008.
4. That the First Respondent pay the Applicant compensation under section 60 for the Applicant’s costs in obtaining reasonably necessary treatment for his malignant melanoma.
5. That the First Respondent pay the Applicant’s costs as agreed or assessed.
6. That the matter be certified as complex and the costs of each party be increased by 15%.
COSTS
Each party to pay its own costs of the appeal.
Deborah Moore
Acting Deputy President 31 May 2010
I, RAMON LOYOLA, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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