Proud as Executrix of Proud (Eotl) v Secretary, Department of Planning, Industry and Environment

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Proud as Executrix of Proud (EOTL) v Secretary, Department of Planning, Industry and Environment [2023] NSWPIC 163
APPLICANT:	Frances Patricia Proud as executrix of the Estate of the late Philip Proud
RESPONDENT:	Secretary, Department of Planning, Industry and Environment
Member:	Jacqueline Snell
DATE OF DECISION:	14 April 2023
CATCHWORDS:	WORKERS COMPENSATION - The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 (1987 Act) resulting from injury sustained by her late husband, Mr Proud, to his respiratory system (being injury in the nature of asthma/chronic obstructive pulmonary disease) in the course of his employment with the respondent, with employment being the main contributing factor to injury; the respondent disputes the applicant’s claim in that the respondent disputes Mr Proud sustained injury in the course of his employment with the respondent with his employment being the main contributing factor to respiratory injury, as alleged; Held – the late Mr Proud sustained injury to his respiratory system (asthma and chronic obstructive pulmonary disease) in the course of his employment with the respondent, with his employment being the main contributing factor to injury; the deemed date of injury is 28 October 2019; the applicant’s claim for permanent impairment compensation payable under section 66 of the 1987 Act is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment “on the papers”.
determinations made:	1. The late Philip Proud sustained injury to his respiratory system (asthma and chronic obstructive pulmonary disease) in the course of his employment with the respondent. The late Mr Proud’s employment was the main contributing factor to injury. The deemed date of injury is 28 October 2019. 2. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 Act is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment on the papers as follows: (a) Date of injury: 28 October 2019 (deemed). (b) Body systems/parts: respiratory (asthma and chronic obstructive pulmonary disease). (c) Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor are as follows: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents dated 1 November 2022 lodged on behalf of the applicant; (d) supplementary report of Associate Professor McKenzie dated 23 November 2022, and (e) supplementary report of Professor Bryant dated 8 December 2022.

STATEMENT OF REASONS

BACKGROUND

On 28 October 2019, Frances Patricia Proud (Ms Proud), in her capacity as executrix of the Estate of the late Philip Proud made a claim on the Secretary, Department of Planning Industry and Environment (the Department) for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) for 40% whole person impairment in respect of injury sustained to her late husband (Mr Proud), such injury being in the nature of injury to his respiratory system (asthma and chronic obstructive pulmonary disease (COPD)) consequent on his exposure to welding fumes while working as a welder in the course of his employment with the former Electricity Commission of NSW (Elcom). The deemed date of injury is 28 October 2019, being the date of the claim for permanent impairment compensation.
Mr Proud was employed by Elcom between in or about 1969 and 1998, and sadly he passed away on 29 February 2020.
Ms Proud’s claim is declined, and she has been issued with notice dated 1 May 2020 in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues are in dispute:
(a) whether Mr Proud sustained injury to his respiratory system (asthma and COPD) in the course of his employment with the Department, with his employment being the main contributing factor to injury, and if so,
(b) the level of impairment sustained by Mr Proud resulting from injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

These proceedings came before me for preliminary conference on 26 October 2022 and with Ms Proud’s claim unresolved, these proceedings came before me for conciliation/arbitration hearing on 12 December 2022. Mr Perry of counsel appeared for Ms Proud, and
Ms Goodman of counsel appeared for the Department. Ms Proud was present.
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.
When it became apparent the arbitration hearing would not conclude on the day of
12 December 2022 I issued directions for the lodgement and service of written submissions on behalf of the Department and the lodgement and service of written submission in reply on behalf of Ms Proud. This has now occurred.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 1 November 2022 lodged on behalf of Ms Proud, and
(d)    supplementary report of Associate Professor McKenzie (A/Prof McKenzie) dated 23 November 2022 and supplementary report of Professor Bryant (Prof Bryant) dated 8 December 2022, which are admitted into evidence in accordance with my Direction dated 16 December 2022.

Oral Evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Brief review of evidence

A brief review of evidence follows.

Statements of Mr Proud

Mr Proud provided statements dated 8 May 2019 and 30 March 2020. Mr Proud commenced employment with Elcom in 1969, initially working at the Munmorah Power Station performing welding work. In 1980 Mr Proud became a welding inspector working on constructions sites, and between 1986 and 1989 he was a teacher of welding in the training school. Between 1989 and 1991, Mr Proud worked as a plant operator, and between 1991 and 1998 he worked in an office. Elcom was Mr Proud’s last employer.

Statement of Ian Turnbull

Mr Turnbull provided a statement dated 28 August 2021. Mr Turnbull is a former work colleague of Mr Proud. Mr Turnbull worked with Mr Proud at the Munmorah Power Station between about 1977 and about 1979. Mr Turnbull also worked with Mr Proud when they were both welding inspectors.
Mr Turnbull described in some detail the work which both he and Mr Proud performed.
Mr Turnbull said that not only were he and Mr Proud exposed to welding fumes, but they were also exposed to ammonia fumes, fumes emanating from passivation paste, and fumes and residue generated while grinding metal. Mr Turnbull explained:
“Most days, while working at Munmorah Power Station, we were exposed to dust or fumes or both.
…
Throughout his time at Munmorah Power Station and while working for the Electricity Commission, I could see Ian sometimes struggling at work. He was not one to complain, but I noticed him breathing very heavy after being exposed to a large volume of fumes and dust or carrying out visible tasks. This seemed to get worse throughout the years that I worked with him. When I say I think he got worse, I mean that I noticed him struggling more frequently as the years went on.”

Statement of David Carpenter

Mr Carpenter provided a statement dated 27 July 2021. Mr Carpenter is a former work colleague of Mr Proud. Mr Carpenter worked with Mr Proud at the Munmorah Power Station for a couple of years, working as Mr Proud’s tradesman’s assistant. Mr Carpenter said that during the time he worked with Mr Proud he noticed Mr Proud “struggling to breath on numerous occasions”. Mr Carpenter recalls two occasions on which Mr Proud required medical assistance for respiratory distress.

Treating medical evidence
Dr Moses

Mr Proud came under the general medical care of Dr Moses. Dr Moses was Mr Proud’s long term general practitioner. Although Dr Moses’ clinical records are not in evidence, Dr Moses provided a short report dated 21 February 2019 in which he wrote:
“Mr Proud suffers COPD (chronic pulmonary obstructive disease) getting worse. He has never smoked. So the cause of his COPD is almost certainly due to his employment as a boilermaker.”

Dr Saltos

Mr Proud came under the specialist care of Dr Saltos, staff physician at the Respiratory Medicine Unit, John Hunter Hospital. Dr Saltos provided a number of reports.
In his initial report dated 11 May 1989 Dr Saltos said of Mr Proud “… from the respiratory point of view he has had asthma since the age of 32…” which is consistent with Mr Proud having first experienced asthma like symptoms while undertaking welding work at the Munmorah Power Station. Dr Saltos noted exercise, preservatives and colouring agents were some of the aggravating factors of Mr Proud’s asthma. On examination, Dr Saltos noted Mr Proud’s spirometry was adequate and there were very few end expiratory wheezes on auscultation. Dr Saltos provided opinion Mr Proud suffered late onset asthma which at that time was under good control. Dr Saltos noted Mr Proud had previously been assessed by Dr Mills, who was a respiratory physician with a special interest in occupational lung disease.
In a report dated 9 July 1992 Dr Saltos noted Mr Proud had reported he had no respiratory problems as a child or as a teenager, and although Mr Proud could not recall what had caused his respiratory problems in the first place, Mr Proud thought it may have been an upper respiratory tract infection. Dr Saltos noted Mr Proud’s predominant symptoms included cough, wheeze and breathlessness mostly related to exertion. Dr Saltos described
Mr Proud’s asthma as having worsened over the last few years with upper respiratory tract infections seeming to be the main aggravating factor.
While Dr Saltos said of Mr Proud “… he works as an engineer with the Electricity Commission. There are no problems related to asthma at work…” such comment is consistent with Mr Proud having ceased undertaking welding work and being exposed to welding fumes in 1989.
While in a subsequent report dated 18 August 1992 Dr Saltos described Mr Proud’s asthma as being under “excellent control”, in a report dated 19 November 1992 Dr Saltos described Mr Proud’s asthma as being under “quite good control”. Dr Saltos said on this occasion:
“I would like to assess him in about 7 months’ time, if there are any problems I shall be only too happy to see sooner.”

Dr Salmon

Mr Proud came under the specialist care of Dr Salmon. Dr Salmon is an ear, nose, throat, head and neck surgeon. Dr Salmon provided a report dated 15 September 2011. Dr Salmon reported Mr Proud’s complaint of breathlessness on exercise together with a constant feeling of tiredness and exhaustion that had been present for two years. Dr Salmon noted
Mr Proud’s diagnosis of asthma and noted Mr Proud was using Symbicort twice daily.
Dr Salmon considered Mr Proud would benefit from a sleep study.
Dr Salmon made no note or any work-related respiratory complaint by Mr Proud.

Dr Williams

Dr Williams provided a report of a sleep study dated 21 September 2011. While the conclusion of the sleep study is difficult to read, doing the best that I can the conclusion appears to demonstrate that during the home diagnostic sleep study Mr Proud suffered minimal sleep disturbance.

Dr Myat

Mr Proud came under the specialist care of Dr Myat. Dr Myat is a respiratory and sleep physician. Dr Myat provide a number of reports.
In his initial report dated 28 February 2018 Dr Myat described Mr Proud as a retired boiler maker who had worked for 20 years and who had worked as a welding inspector. Dr Myat noted Mr Proud’s lung function testing on 13 December 2017 demonstrated Forced Expiry Volume in one second (FEV1) of 54%. Dr Myat provided opinion Mr Proud suffered asthma/COPD.
In his report dated 6 March 2018 Dr Myat noted Mr Proud’s lung functioning testing on
13 February 2018 again demonstrated FEV1 of 54%. However, Dr Myat considered there had been an improvement in Mr Proud’s condition since his earlier review.
In his report dated 7 September 2018 Dr Myat noted Mr Proud’s lung function testing on
13 August 2018 demonstrated FEV1 of 47%. Dr Myat noted there had been a decline in
Mr Proud’s condition. Dr Myat also noted Mr Proud had not been using Symbicort inhaler therapy and neither had he been using Spiriva.
In his report dated 4 March 2019 Dr Myat noted Mr Proud’s lung functioning testing on
4 March 2019 demonstrated FEV1 of 45%. Dr Myat provided opinion Mr Proud had suboptimal inhaler technique. Dr Myat also said he was unable to draw definitive conclusion whether Mr Proud’s respiratory condition was due to occupational, environmental or genetic factors and suggested Mr Proud consult with a respiratory physician with “occupational interest”. Dr Myat suggested Mr Proud consult with Dr Miles.

Dr Miles

Mr Proud came under the specialist care of Dr Miles. Dr Miles is a respiratory, sleep and general medicine physician. Dr Miles provided a number of reports. In her initial report dated 8 May 2019 Dr Miles recorded a detailed history of Mr Proud’s exposure to welding fumes and other fumes while undertaking welding work. Dr Miles described Mr Proud as becoming symptomatic at aged 35 “which he attributed to asthma”. As had Dr Saltos, Dr Miles noted
Mr Proud had previously consulted with Dr Mills, who she described as “a distinguished respiratory physician”.
Dr Miles noted Mr Proud’s symptoms started as a cough and wheeze with some exertional breathlessness worsening with acute exacerbation sometimes after welding work. Dr Miles described Mr Proud as retiring in 1998 in part due to his poor respiratory health.
Dr Miles described Mr Proud’s respiratory health as having declined since retirement.
Dr Miles confirmed diagnosis of asthma/COPD and at the time of review Dr Miles noted
Mr Proud had suffered an exacerbation of his asthma/COPD due to an infection he had acquired while travelling overseas. However, Dr Miles accepted there was a relationship between Mr Proud’s pulmonary condition and his exposure to welding fumes while undertaking welding work.
In a separate letter also dated 8 May 2019 Dr Miles wrote to the Asthma Management Service, John Hunter Hospital and said she was “looking into whether there was an occupational relationship” between Mr Proud’s condition and his welding work. In a subsequent report dated 15 May 2019 addressed to Dr McLeod, urologist, Dr Miles said
Mr Proud had come under her specialist care regarding his “multiple respiratory problems that have an occupational component to them”.

Independent medical evidence
Dust Disease Board

Mr Proud underwent lung function screening arranged by the Dust Diseases Board of NSW in 1981, which was the same year as Mr Proud commenced working as a welding inspector. The testing indicated an FEV1 of 68% of the predicted value, which I understand should be above 80%.
Mr Proud underwent further lung function screening arranged by the Dust Diseases Board of NSW in 1990. The testing on this occasion indicated an FEV1 of 63% of the predicted value.
These testing results demonstrated a deterioration of pulmonary function during the period Mr Proud worked as a welding inspector and welding teacher.

Professor Bryant

Mr Proud was assessed by Prof Bryant in his capacity as independent medical examiner. Prof Bryant specialises in disease of the lungs, their causes and treatment. Prof Bryant has held the position of Chair, Medical Authority, Dust Diseases Board of NSW since 1996.
Prof Bryant provided reports dated 6 September 2019, 6 September 2022 and
8 December 2022.
In his initial report dated 6 September 2019 Prof Bryant recorded the following history:
“He told me that his breathing problems began when he was in his early thirty’s. He had been working at the Munmorah Power Station for six or seven years when his symptoms first began. He noted the gradual onset of breathlessness on exertion associated with feelings of wheezing and chest tightness and a dry cough. He saw his GP who diagnosed asthma, but the symptoms were initially mild, and Mr Proud did not feel an inclination to take treatment for it.
…
Between 1969 and 1998 he worked at the Munmorah Power Station (and subsequently Eraring Power Station, Wangi Power Station and Pacific Power/Delta Electricity). In all of these positions he was in areas where he was either welding himself or welding was being carried out and where there was welding fumes clearing in the air that he was breathing.”
Prof Bryant noted:
“… a gradual worsening of your client’s airflow limitation since the first test available to me that were done at the Dust Diseases Board and were dated 12 June 1981 when your client was aged approximately 37 years … these results indicate a progressive decline in his lung function between the ages of 37 and 75.
..
Although Mr Proud’s lung function test results do disclose some bronchodilator responsiveness, I am in agreement with the opinion of Dr Susan Miles … and that he has an asthma/COPD overlap syndrome and this is consistent with the findings reported by Dodd and Mazurek. They found that there is a marked tendency for patients with work-related asthma to develop chronic airflow limitation and that workers with this combination tend to have a worse outcome than do those with asthma alone.”
Prof Bryant reported Mr Proud provided no history of respiratory symptoms until he commenced working in an environment where he was exposed to frequent and prolonged exposure to welding fumes. Prof Bryant noted Mr Proud had not been exposed to any other known cause of asthma/COPD.
In his report dated 6 September 2022, Prof Bryant canvassed opinion provided by
A/Prof McKenzie in his report dated 3 April 2022 (discussed below). Prof Bryant said:
“In my experience, contemporaneous records are of little assistance in diagnosing occupational asthma as the records are unlikely to contain helpful information unless the recording physician was aware of, and was making enquiries about, possible occupational asthma.
…
I do not agree with the statement that occupational asthma ‘usually ameliorates’ after exposure ceases. The prognosis of this disorder is related to the length of time that a person is exposed to the offending agent, and the severity of asthma that is recorded … and the length of time that the person has had asthma.
…
I do not agree with the proposition that welding is not generally regarded as a cause of occupational asthma. Not only are there numerous studies reporting an increased prevalence of asthma in welders … but exposure to welding fumes has been reported as the fifth leading cause of work-related asthma in Michigan … and in a recent editorial in the Scandinavian Journal of Work and Environmental Health, it was accepted that welding fumes are a cause of asthma and that occupational exposure limits should be imposed.”
In a report dated 8 December 2022 Prof Bryant compared the results of the lung function testing that Mr Proud had undertaken between 1981 and 2019 and essentially made the following observations:
(a)    Dr Saltos stated Mr Proud had asthma since the age of 32, which is about the time he commenced welding work. Dr Saltos stated Mr Proud’s asthma was made worse by exposure to a variety of known non-specific irritants;
(b)    Mr Carpenter and Mr Turnbull state Mr Proud experienced respiratory symptoms over the period he was undertaking welding work and exposed to welding fumes. The welding work described by Mr Carpenter and Mr Turnbull probably caused exposure by Mr Proud to acid used to clean metals prior to welding, dust from grinding metals, fine ash and coal dust from inside boilers and welding fumes, and
(c)    Mr Proud’s described symptoms to Prof Bryant were of gradual onset, came on at about the time Mr Proud commenced welding work and was exposed to welding fumes, became progressively severe over the years he continued with welding work and was exposed to welding fumes and continued to worsen after he ceased welding work and was no longer exposed to welding fumes.

Noting the demonstrated progressive worsening of Mr Proud’s lung functioning between 1981 and 2019, Prof Bryant concluded:
“It is therefore my opinion that the late Mr Proud had evidence of asthma, because of a positive bronchodilator response, and that his post-bronchodilator FEV1 progressively worsened between 1981 and 2019 with features indicative of the asthma/COPD overlap syndrome… This term is used to describe people who have asthma but, as time passes and despite treatment, their lung function worsens and their airflow limitation increases, resulting in progressively more severe airflow limitation which fails to return to near normal despite the use of asthma therapy.”
Prof Bryant disagreed with opinion provided by A/Prof McKenzie that those people who suffered asthma/COPD as a consequence of work invariably respond well to treatment and Prof Bryant noted there are many people whose lung function worsens despite what would be regarded as satisfactory treatment. Prof Bryant said:
“Individuals with asthma/COPD overlap syndrome tend to have worse outcomes than those with either asthma or COPD and they tend to have a higher percentage of a fast decline in lung function for reasons that remain unexplained.”

Associate Professor McKenzie

A/Prof McKenzie conducted a file review in his capacity as independent medical examiner as it was not possible for him to examine Mr Proud. A/Prof McKenzie is a respiratory and sleep physician. A/Prof McKenzie provided two reports. A/Prof McKenzie’s initial report is dated
3 April 2020 and his subsequent report is dated 23 November 2022.
In his initial report A/Prof McKenzie noted the earliest clinical record he could find was that from the Dust Diseases Board dated 12 June 1981. A/Prof McKenzie also noted the clinical record of the Dust Diseases Board dated 21 November 1990. A/Prof McKenzie said the records of the Dust Disease Board were against a finding of occupational asthma.
A/Prof McKenzie concluded on a review of the medical information made available to him at the time of initial reporting that Mr Proud developed adult onset asthma in the late 1970s when he would have been aged in his mid-30s. A/Prof McKenzie noted at that time that there was no record of Mr Proud’s airway being tested on a regular basis and no contemporaneous complaint of cough, chest tightness or wheeze occurring after welding work and exposure to welding fumes or complaint of cough, chest tightness or wheeze progressively developing over the working week with improvement over the weekend or absences from welding work and exposure to welding fumes. A/Prof McKenzie considered there was no documented support for a diagnosis of occupational asthma.
A/Prof McKenzie also considered the diagnosis of COPD and concluded that if Mr Proud’s welding work and exposure to welding fumes had caused an accelerated decline in
Mr Proud’s pulmonary function between 1981 and 1998, there should have been a decrease in rate of decline following Mr Proud’s retirement. A/Prof McKenzie considered the accelerated rate of decline of pulmonary function between 1981 and 2019 was due to
Mr Proud’s adult onset asthma and not his welding work and exposure to welding fumes.
A/Prof McKenzie provided a subsequent report following review of further medical information provided to him, including the reporting of Dr Saltos, Dr Myat and Dr Miles.
A/Prof McKenzie considered the contemporaneous reporting of Dr Saltos to be particularly useful. A/Prof McKenzie noted Dr Saltos had considered Mr Proud’s work history and found no suggestion Mr Proud’s work environment was affecting his asthma. A/Prof McKenzie was of the view that if Mr Proud suffered occupational asthma due to his welding work and exposure to welding fumes Dr Saltos would have been able to provide such diagnosis.
A/Prof McKenzie provided opinion that if Mr Proud had developed asthma as a result of welding work and exposure to welding fumes, Mr Proud’s asthma would have progressively deteriorated with such exposure, and this had not occurred. A/Prof McKenzie pointed out it was clear from Dr Saltos’ reporting that Mr Proud’s asthma was triggered by many other factors including exercise, artificial colourings and respiratory infections. In maintaining opinion Mr Proud’s COPD and asthma was not work related, A/Prof McKenzie drew on the fact that Mr Proud had been reviewed by Dr Saltos on several occasions between 1989 and 1992 with Mr Proud’s pulmonary function having remained normal in spite of having worked as a boilermaker, welder and engineer for 32 years and having had suffered asthma for at least 15 years. A/Prof McKenzie considered it evident there was no progressive decline in Mr Proud’s pulmonary function during most of the time Mr Proud worked with Elcom and the significant decline in his pulmonary function had occurred after Mr Proud’s welding work and exposure to welding fumes ceased.
A/Prof McKenzie canvassed opinion provided by Prof Bryant. He noted Prof Bryant had interviewed Mr Proud and recorded “he was not aware of any acute episodes of wheezing at work”. A/Prof McKenzie said such history would be against a diagnosis of occupational asthma.

Submissions

Ms Goodman of counsel and Mr McMahon, solicitor for Ms Proud, have provided written submissions, which are available to the parties. While I have not reproduced the parties’ submissions here I have carefully considered the submissions and I am grateful for the assistance afforded me in this particular matter which is not without complexity.

Determination
Injury

I am required to determine whether Mr Proud sustained injury to his respiratory system (asthma and COPD) in the course of his employment with the Department, with his employment being the main contributing factor to injury. Ms Proud has the onus of proving such allegation.
Whether Mr Proud sustained injury to his respiratory system in the course of his employment with the Department with his employment being the main contributing factor to injury is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[1] the court stated:
“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 actual existence of that fact.”
[1] [2008] NSWCA 246 (Nguyen).
I consider it is also helpful to note that in Malec v JC Hutton Pty Limited[2] the court stated:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain, if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”
[2] [1990] HCA 20.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment. In the circumstances of this particular matter it is important to note that s 4 also includes injury in the nature of a disease injury (which relevantly means the aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease). The law in relation to “main contributing factor” was considered by Snell DP in AV v AW[3] with comment that the test of “main contributing factor” is one of causation that involved consideration of the evidence overall.
[3] [2020] NSWWCCPD 9.
Relevant to this issue of causation of the injury Ms Proud alleges Mr Proud sustained to his respiratory system in the course of his employment with the Department, it must be remembered that in Kooragang v Cement Pty Ltd v Bates[4] the court said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the parties of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of a causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[4] (1994) 35 NSWLR 452; 10 NSWCCR 796.
Mr Proud has explained that he undertook welding work with Elcom between in or about 1969 and 1989 (some 20 years), initially working at the Monmorah Power Station, then working at various construction sites in his role as welding inspector and then working at the training school as a teacher of welding. Mr Turnbull has explained that he undertook welding work with Elcom and worked with Mr Proud between in or about 1977 and 1979 at Monmorah Power Station and again with Mr Proud at various construction sites in their roles as welding inspectors. Mr Turnbull confirmed Mr Proud was exposed to welding fumes while undertaking welding work. Mr Turnbull noticed Mr Proud “breathing very heavy” while working and said, “I noticed him struggling more frequently as the years went on.”
Mr Carpenter has explained that he worked with Mr Proud at the Munmorah Power Station for a couple of years. Mr Carpenter noticed Mr Proud “struggling to breath on numerous occasions”.
Dr Moses was Mr Proud’s long term general medical practitioner. In the context of Mr Prould having never smoked Dr Moses provided opinion the cause of the COPD that Mr Proud suffered was “almost certainly due to his employment as a boilermaker”.
While it is evident Mr Proud had undergone assessment at some point in time by Dr Mills, who is a distinguished respiratory physician with a specialist interest in occupational lung disease, unfortunately there is no reporting by Dr Mills in evidence. In this regard I accept
Mr McMahon’s submission that Ms Proud was unable to obtain any medical information from Dr Mills relevant to Mr Proud’ respiratory condition due to the effluxion of time.
Mr Proud underwent lung function testing with the Dust Diseases Board of NSW as early as 1981, at which time he had been undertaking welding work with exposure to welding fumes for some 12 years and was either working, or was to begin working, in his role as a welding inspector with ongoing exposure to welding fumes. At the time of this lung function testing
Mr Proud was approximately 37 years of age and had been symptomatic for some time.
Mr Proud again underwent lung function testing with the Dust Diseases Board of NSW in 1990, being the year after he ceased working in his role as a welding teacher with exposure to welding fumes. At the time of this subsequent lung function testing Mr Proud had undertaken welding work with exposure to welding fumes for some 20 years. The initial testing in 1981 demonstrated Mr Proud suffered an airflow limitation, with subsequent testing in 1990 demonstrating a quite marked deterioration during that period.
Mr Proud came under the specialist care of Dr Saltos. Dr Saltos is a specialist in respiratory medicine. Dr Saltos provided a history of Mr Proud having had asthma since the age of 32 years, which I accept is consistent with Mr Proud first experiencing asthma like symptoms while undertaking welding work with exposure to welding fumes at the Munmorah Power Station. Dr Saltos provided opinion Mr Proud suffered late onset asthma, which as of
11 May 1989 Dr Saltos described as being under good control. However, as of 9 July 1992, Dr Saltos described Mr Proud’s asthma as having deteriorated over the last few years, with upper respiratory tract infections seeming to be the main aggravating factor. Although Dr Saltos reported on 18 August 1992 that Mr Proud’s asthma was under “excellent control”, on 19 November 1992 he described Mr Proud’s asthma as only being under “quite good control” and made arrangement for review in about seven months’ time with comment he would review Mr Proud “sooner” should there be any problems. While Dr Saltos said of Mr Proud “there are no problems related to asthma at work” I accept such comment is consistent with Mr Proud having ceased welding work by 9 July 1992, which is when Dr Saltos provided such comment.
Mr Proud subsequently came under the specialist care of Dr Myat, Dr Myat is a specialist in respiratory and sleep medicine. In his initial report of 28 February 2018 Dr Myat provided diagnosis of asthma and COPD. While Dr Myat has usefully recorded Mr Proud’s lung functioning testing on 13 December 2017, 13 February 2018, 13 August 2018 and
4 March 2019, which demonstrated deterioration in recent times, he said he was unable to provide definitive conclusion as to the cause of Mr Proud’s respiratory condition and suggested Mr Proud consult with a respiratory physician with “occupational interest”.
Consistent with suggestion by Dr Myat, Mr Proud came under the specialist care of Dr Miles. Dr Miles is a specialist in respiratory, sleep and general medicine. In her initial report of
8 May 2019 Dr Miles recorded a detailed history of Mr Proud’s welding work and exposure to welding fumes. Dr Miles noted Mr Proud as having become symptomatic at aged 35, which is more or less consistent with Dr Saltos’ reporting and which is consistent with Mr Proud first experiencing asthma like symptoms while undertaking welding work and being exposed to welding fumes. Dr Miles noted Mr Proud’s respiratory condition had declined since his retirement from Elcom in 1998. Dr Miles provided diagnosis of asthma and COPD, which she described as having been exacerbated consequent on an infection he had acquired. Dr Miles accepted there was a relationship between Mr Proud’s welding work and exposure to welding fumes and his respiratory condition.
Mr Proud was assessed on 6 September 2019 by Prof Bryant in his capacity as independent medical examiner and I consider it of some significance that Prof Bryant has held the position of Chair, Medical Authority, Dust Diseases Board of NSW for some 27 years. Prof Bryant recorded a history of Mr Proud working between 1969 and 1998 in an environment where he was either undertaking welding work himself with exposure to welding fumes or where welding work was being carried out with exposure to welding fumes. While this history is not correct in that I understand Mr Proud’s exposure to welding fumes ceased some 10 years earlier in or about 1989 when he ceased working as a teacher of welding, there is no quibble with this history made in submission by Ms Goodman. Prof Bryant also relevantly noted Mr Proud reported no history of respiratory complaint until he commenced welding work with exposure to welding fumes and relevantly noted Mr Proud reported no other known exposure to asthma and COPD, being his diagnosis of Mr Proud’s pulmonary condition. In providing such diagnosis, Prof Bryant touched on the various lung function testing made available to him, the first being undertaken in 1981 when Mr Bryant was approximately 37 years of age, which he said demonstrated a progressive decline in his pulmonary function between the ages of 37 years and 75 years, and said he agreed with diagnosis provided by Mr Proud’s treating specialist, Dr Miles. Prof Bryant also went on to explain that patients with occupational asthma tend to develop COPD, with the combination of asthma and COPD tending to result in a “worse outcome” than asthma alone.
With Mr Proud’s passing on 20 February 2020, A/Prof McKenzie provided opinion in his capacity as independent medical examiner “on the papers”. Although A/Prof McKenzie provided opinion that the lung function testing with the Dust Disease Board of NSW in 1981 and 1990 were against a finding of occupational asthma, he provided no explanation for such opinion. Although A/Prof McKenzie accepted on the medical information made available to him that Mr Proud had developed late onset asthma while in mid-thirties, he considered there was no documented contemporaneous support for a diagnosis of occupational asthma. Although A/Prof McKenzie also appeared to have accepted on the medical information made available to him that Mr Proud had developed COPD he concluded that if Mr Proud’s welding work with exposure to welding fumes had caused an accelerated decline in his pulmonary function between 1981 and 1998, there should have been a decrease in the rate of accelerated decline following his retirement in 1998, which was not evidenced. A/Prof McKenzie said the accelerated decline in Mr Proud’s pulmonary function evidenced between 1981 and 2019 was due to Mr Proud’s late onset asthma rather than his welding work and exposure to welding fumes. Although A/Prof McKenzie said that Mr Proud’s specialist,
Dr Saltos, was well placed to provide opinion Mr Proud suffered occupational asthma in the event that was the case, I do not accept this in circumstances where it is not apparent to me such opinion was ever sought of Dr Saltos.
Following review of A/Prof McKenzie’s opinion, Prof Bryant is strident in opinion Mr Proud’s pulmonary condition is consequent on his welding work and exposure to welding fumes in the course of his employment with Elcom. Prof Bryant said with reasoned explanation that he disagreed with A/Prof McKenzie in that he said contemporaneous complaint was of little assistance in diagnosing occupational asthma, occupational asthma does not usually improve with the cessation of exposure, and welding work with exposure to welding fumes is an accepted cause of occupational asthma. Prof Bryant diagnosed Mr Proud with asthma/COCP overlap syndrome, being a term he said:
“to describe people who have asthma but, as time passes and despite treatment, their lung function worsens and their airflow limitation increases, resulting in progressively more severe airflow limitation which fails to return to near normal despite the use of asthma therapy.”
Following review of the evidence as a whole and careful consideration of counsels’ submissions I accept Ms Proud has discharged the onus required of her. For reasons discussed above I accept Mr Proud sustained injury to his respiratory system (asthma and chronic obstructive pulmonary disease) in the course of his employment with the Department, with his employment being the main contributing factor to injury.
I am of the view Mr Proud’s pulmonary condition has had an “occupational component” to it for many years. While performing welding work with exposure to welding fumes Mr Proud was diagnosed with late onset asthma in the late 1970s when he was in his mid-thirties. After performing welding work with exposure to welding fumes for some 12 years Mr Proud underwent lung function testing in 1981 which demonstrated reduced pulmonary function, with subsequent lung function testing even after he ceased welding work with exposure to welding fumes continuing to demonstrate reduced pulmonary function. Prof Bryant has explained prognosis for asthma/COPD is dependent on the length of time Mr Proud worked as a welder and was exposed to welding fumes, the severity of his asthma and the length of time he has suffered asthma. While it may be true that Prof Bryant has erroneously recorded that Mr Proud was exposed to welding fumes from 1969 up until he retired in 1998, I do not consider anything turns on this anomaly in circumstances where Ms Goodman has not addressed this in submission and Prof Bryant has provided diagnosis of asthma/COPD overlap syndrome, with notation there are many people whose lung function worsens despite satisfactory treatment, and explanation:
“Individuals with asthma/COCP overlap syndrome tend to have worse outcomes than those with either asthma or COPD and they tend to have a higher percentage of a fast decline in lung function for reasons that remain unexplained.”

Ms Proud enjoys the support afforded her of Mr Proud’s treating general practitioner,
Dr Moses, his treating specialist Dr Miles, and the independent medical examiner,
Prof Bryant. While I appreciate that it was only due to Mr Proud’s passing that
A/Prof McKenzie did not have the opportunity to assess Mr Proud as Prof Bryant had done, I am still inclined to afford Prof Bryant’s opinion more evidentiary weight than that I afford to opinion provided by A/Prof McKenzie. While I appreciate A/Prof McKenzie’s specialty and significant experience in respiratory disorders, including occupational lung disorders and COPD, I am mindful that Prof Bryant has for many years had an active interest in lung disorders that are either caused or aggravated by workplace exposure, with Prof Bryant being the Chairperson of the Medical Authority of the Dust Diseases Board of NSW which assesses applications brought by workers who allege injury as a consequence of dust exposure in the workplace. In such circumstances I am inclined to prefer the opinion provided by Prof Bryant to that of A/Prof McKenzie.

Permanent impairment

I have determined Mr Proud sustained injury to his respiratory system (asthma and COPD) in the course of his employment with the Department, with a deemed date of injury of 28 October 2019, and that Mr Proud’s employment was the main contributing factor to injury.

It is appropriate for Ms Proud’s claim for permanent impairment compensation resulting from the injury Mr Proud sustained to his respiratory system (asthma and CODP) be remitted to the President for referral to a Medical Assessor for assessment on the papers of permanent impairment resulting from the injury, with deemed date of injury of 28 October 2019.
The documents to be referred to the Medical Assessor are as follows:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 1 November 2022 lodged on behalf of Ms Proud;
(d)     supplementary report of A/Prof McKenzie dated 23 November 2022, and
(e)    supplementary report of Prof Bryant dated 8 December 2022.

SUMMARY

I have determined Mr Proud sustained injury to his respiratory system (asthma and COPD) in the course of his employment with the Department, with a deemed date of injury of 28 October 2019, and that Mr Proud’s employment was the main contributing factor to injury.
Ms Proud’s claim for permanent impairment compensation payable under s 66 of the1987 Act is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment on the papers as follows:
(a)    Date of injury:                    28 October 2019 (deemed).
(b)    Body systems/parts:          respiratory (asthma and chronic obstructive pulmonary disease).
(c)    Method of assessment:     whole person impairment.
The documents to be referred to the Medical Assessor are as follows:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 1 November 2022 lodged on behalf of Ms Proud;
(d)     supplementary report of A/Prof McKenzie dated 23 November 2022, and
(e)    supplementary report of Prof Bryant dated 8 December 2022.

[2023] NSWPIC 163

14 April 2023