Veolia Environmental Services Pty Ltd v Gwynne - [2014] NSWWCCPD 10

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Veolia Environmental Services Pty Ltd v Gwynne [2014] NSWWCCPD 10
APPELLANT:	Veolia Environmental Services Pty Ltd
FIRST RESPONDENT:	David Gwynne
SECOND RESPONDENT:	Beroa Australia Pty Ltd ATF Beroa Australia Unit Trust
INSURERS:	Veolia Environmental Service (Australia) Pty Ltd is Self Insured Beroa Australia Pty Ltd ATF Beroa Australia Unit Trust is insured by GIO General Limited
FILE NUMBER:	A1-12150/12
ARBITRATOR:	Ms J Peacock
DATE OF ARBITRATOR’S DECISION:	22 October 2013
DATE OF APPEAL HEARING:	12 February 2014
DATE OF APPEAL DECISION:	5 March 2014
SUBJECT MATTER OF DECISION:	Disease provisions; meaning of “employment to the nature of which the disease was due”; aggravation of disease; ss 4(b)(i) and (ii); ss 15 and 16 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr M Underwood, solicitor, Bartier Perry
First Respondent:	Mr T Edwards, instructed by Armstrong Solicitors Pty Ltd
Second Respondent:	Mr Odling, instructed by Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The orders made in the Certificate of Determination dated 22 October 2013 are confirmed. 2. The appellant is to pay the first and second respondents’ costs of the appeal.

BACKGROUND

Mr Gwynne, the first respondent, was employed as a refractory bricklayer which is an occupation that involves constructing brick-lined pots used in the smelting process of aluminium. In late 2004, whilst employed by Andreco Hurll Pty Limited (Andreco Hurll) at the Tomago aluminium smelter, Mr Gwynne came into contact with a substance known as "coal tar pitch” as a result of which he suffered dermatitis and contact folliculitis. Andreco Hurll is not a party to these proceedings.
After leaving Andreco Hurll in July/August 2005, Mr Gwynne was employed by the appellant, Veolia Environmental Services Pty Ltd (Veolia) (formerly known as Collex), from 8 August 2005 until 21 August 2005, however his employment was not formally terminated until early 2007. From September 2007 until August 2008 Mr Gwynne worked as a domestic bricklayer. From 27 August 2008 until 24 October 2008 Mr Gwynne was employed by the second respondent Beroa Australia Pty Ltd ATF Beroa Australia Unit Trust (Beroa). Both Veolia and Beroa were contractors at the Tomago aluminium smelter site.
During the course of his employment with Veolia, Mr Gwynne was exposed to various chemicals including pitch and tar. It is not disputed that exposure to these substances with Veolia caused him to suffer from a disease of gradual process, being an acute phototoxic reaction to pitch and irritant contact folliculitis due to exposure to chemicals. It is accepted that, in respect of the claim against Veolia, the injury is deemed to have occurred on 13 August 2005, when Mr Gwynne was first incapacitated due to his injury with Veolia. Veolia accepted liability for weekly compensation for various periods of incapacity until 9 November 2009.
An issue arose between the parties as to whether Mr Gwynne’s subsequent employment with Beroa was employment to the nature of which the disease was due, such that Beroa became liable for the weekly compensation claimed by Mr Gwynne pursuant to s 4(b)(i) and s 15(1)(b) of the Workers Compensation Act 1987 (the 1987 Act) or, in the alternative, whether the subsequent employment with Beroa aggravated his injury and gave rise to liability pursuant to s 4(b)(ii) and s 16(1)(b) of the 1987 Act.
Mr Gwynne filed an Application to Resolve a Dispute with the Commission on 10 October 2012 as against Veolia and Beroa. He pleaded the same injury against both respondents, namely, “injury to the skin” by reason of “constant and repetitive exposure to pitch, tar and petroleum products”. Mr Gwynne sought weekly compensation at various amounts from 9 November 2005 to 31 December 2012.
On 18 June 2012 the matter was listed for arbitration hearing before Arbitrator Peacock. All parties were represented by counsel. The issues for determination by the Arbitrator were those issues referred to at [4] of this decision.
No oral evidence was called at the arbitration. The decision was reserved.
On 22 October 2013 the Commission issued a Certificate of Determination and a Statement of Reasons by the Arbitrator. The Arbitrator found that Mr Gwynne suffered a disease injury under s 4(b)(i) namely, acute phototoxic reaction to pitch and irritant contact folliculitis due to exposure to chemicals arising out of his employment with Veolia and to which his employment with Veolia was a substantial contributing factor. She ordered Veolia to pay the weekly compensation in dispute.
The Arbitrator was not satisfied that Mr Gwynne suffered any s 4(b)(i) injury or an aggravation injury under s 4(b)(ii) by reason of his employment with Beroa. She held that Mr Gwynne’s employment with Beroa was not employment to the nature of which his disease was due. Accordingly the Arbitrator entered an award in favour of Beroa in respect of the disputed compensation payments.
The Certificate of Determination issued on 22 October 2013 is in the following terms:
“The Commission determines:
1.      That the applicant has leave to amend the Application to Resolve a Dispute to close off the claim for weekly compensation as at 31 December 2012.
2.      Award for the second respondent.
3. That the first respondent pay to the applicant weekly compensation under section 40 of the Workers Compensation Act 1987 as follows:
(a)     From 9 November 2009 to 31 March 2010 at the rate of $470.70 per week
(b)     From 1 April 2010 to 30 September 2010 at the rate of $479.70 per week
(c)     From 1 October 2010 to 31 March 2011 at the rate of $486.20 per week
(d)     From 1 April 2011 to 30 September 2011 at the rate of $496.00 per week
(e)     From 1 October 2011 to 31 March 2012 at the rate of $504.50 per week
(f)      From 1 April 2012 to 30 September 2012 at the rate of $514.00 per week
(g)     From 1 October 2012 to 31 December 2012 at the rate of $522.30 per week
4.      That the first respondent pay the applicant’s costs as agreed or assessed.
5.      That the matter is complex and the costs of all parties be increased by 15 per cent.”
Veolia appealed the Arbitrator’s decision.
A contribution agreement pursuant to s 151Z of the 1987 Act is in place between Veolia and Andreco Hurll.

THRESHOLD MATTERS

There is no dispute that the threshold requirement as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

LEGISLATION

The relevant provisions of the 1987 Act are as follows:
Workers Compensation Act 1987

“4 Definition of “injury” (as in force prior to 27 June 2012)

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, and

(c) does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

“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.”

“16 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.”

MR GWYNNE’S EVIDENCE

Mr Gwynne was employed by Veolia from 13 August 2005 as a refractory bricklayer at the Tomago aluminium smelter. He said that his job was to build brick lined “pots” used in the smelting process of aluminium.
Mr Gwynne said in his statement dated 29 March 2012:
“Part of my duties [with Veolia] was to assist in gluing carbon side-wall blocks used in the construction of the pots. A substance was used to glue the blocks together which contained pitch. The glue contained an expoy [sic] hardener known as AD20. I had been informed by my employer that this hardener can be dangerous to inhale and this is one of the reasons why we wore the helmets when laying the side-wall blocks.”
On 13 August 2005, as a result of working with a contaminated helmet, which had been exposed to pitch and tar, Mr Gwynne began to suffer from symptoms in both hands which he said were red, itchy and painful. Overnight, the symptoms progressed and he experienced redness and itchiness all over his right arm and left hand. The pain was burning and more intense. By the time Mr Gwynne saw his general practitioner, Dr Raja, on 17 August 2005, the redness and burning had spread to his face, head, neck, chest and thighs and was very painful.
In respect of his condition from August 2005 until 2008, Mr Gwynne said:
“The condition on my skin has waxed and waned. If I am even accidently exposed to pitch, my arms, thighs, chest, neck and head almost immediately come out in an painful burning pimply rash which can last up for [sic] a week before it starts to reduce.”
Mr Gwynne stated that he ceased performing duties for Veolia in late August 2005 but his employment was not terminated until two years later.
In about 2006, Mr Gwynne was involved in a motor vehicle accident which incapacitated him for work as a bricklayer until about September 2007. For much of that time he received Centrelink benefits.
For most of the time between 2007 and 17 February 2011, Mr Gwynne worked as a bricklayer, mainly doing domestic bricklaying.
However, between 27 August 2008 and 24 October 2008 Mr Gwynne was employed as a refractory bricklayer for Beroa, formerly known as York Forter, at the Tomago aluminium smelter. In respect of that work he said, in his statement of 29 March 2012:
“I was concerned about doing this work as I did not want to be exposed to pitch or tar ever again. I did not continue with that work as there is a very good chance in any refractory type of bricklaying which is only done in heavy industry of being exposed even accidently to pitch and/or tar. Those products are used constantly in heavy industry, particularly the industries which require the laying of refractory bricks. Those industries really take up almost all of the refractory work. As an example, Aluminium smelters, steel making plants, glass making plants and all of them use petroleum based products which contain pitch and tar. In the short time I did that work in 2008 I found my skin was not in a very good condition. Particularly around my face hands and arms my skin was itchy and red and scaly. It was not as bad as it was back in 2005. Although I cannot point to any particular product, I believe in that short time I was exposed to some sort of pitchy [sic] or tar accidentally. After I stopped work, this refractory [sic] my skin did improve and has remained much at the same level since. As it improved rapidly after stopping this work, I did not see the need at that time to seek any medical attention.”
Since 15 February 2011 Mr Gwynne has been employed by the Royal Australian Air Force as an Aircraftsman and has not been exposed to pitch or other sensitising chemicals.
In a further statement dated 24 May 2012, Mr Gwynne expanded on the nature of the work he was required to do whilst employed by Beroa. He stated:
“I was working solely in the Bake Ovens No 1. I was working on a re-build of the ovens. I [sic] was similar to a Greenfield construction site, except that we worked indoors. This was a totally different part of the [Tomago] plant to which I was working when exposed to pitch and tar in 2005. The old ovens had been demolished and the site had been cleaned up before I commenced work there.”
Before undertaking the position, Mr Gwynne disclosed to Beroa that he had a problem with his skin whilst working for Veolia. He stated that at the induction for new employees he was assured that he would not be working with coal tar pitch.
For the period that he worked for Beroa he wore protective clothing, including gloves, masks, glasses, hard hat, long sleeve shirts and steel capped boots. He only wore the mask from time to time as required when cutting bricks or cutting up insulation.
Mr Gwynne said in his statement of 24 May 2012:
“As far as I am aware I was not exposed to pitch or tar in that time. I was informed by Yorks [Beroa] that all such substances had been removed from the site prior to commencing work on the re-build. I did not see any such substances on the site when I was working there. I did not go to any other part of the plants [sic] whilst I was working there. In fact part of our induction was we could not enter other parts of the plant when on site. There were separate meal sheds away from the work site for us to use. Only contractors working on the re-build used the sheds when I was in them. I did not have contact with other contractors or employees on the site.”
With respect to the condition of his skin whilst working for Beroa, Mr Gwynne went on to say:
“I believe the skin problems I have set out in my earlier statement started to become evidence [sic] after about 4-5 weeks. I did not make a claim or any report of an injury to Yorks [Beroa] as I did not think it was severe enough to do so.
The condition at that time was uncomfortable for me and that is why I left. I confirm I did not seek any medical treatment at that time, and my skin returned to the condition it was in before I worked there about a week or two [sic] I left.”

MEDICAL AND OTHER EVIDENCE

Dr Relic is a dermatologist to whom Mr Gwynne had been referred by his general practitioner. In a report dated 3 November 2005, Dr Relic said he first examined Mr Gwynne on 17 February 2005. Mr Gwynne reported that he had developed a rash on the dorsal aspect of his hands on or about 23 December 2004. The rash was very itchy and flared with sun exposure. Mr Gwynne reported contact with coal tar pitch usually on three occasions per week, and he had been doing this over the previous twelve months. Mr Gwynne felt that the onset of his dermatitis was associated with contact with pitch paste to his right arm. Some of the material ran down the back of his glove. He also had some exposure to pitch dust which was present on power cord leads which came into contact with his arms.
Mr Gwynne also said in the course of his work he had contact with “resin adhesive and resin hardener containing resorcinol-phenol-formaldehyde” and “anthracite, rock wool and kao wool as well as mortar and KUB cement (aluminate, silicant)”.
Mr Gwynne stated that he worked in the pot room at the Tomago aluminium smelter. He worked in a hot environment, contacting heated pitch. He wore protective gloves, overalls and an “air stream helmet and balaclava”.
In December 2004 he was required to work with a helmet which had been used by a fellow employee who had been working on the “glue line”. He said that the helmet was contaminated by pitch and volatile tar contained in the glue resin, residues of which were within the helmet. After using the helmet, which had not been serviced between shifts, he felt nauseated.
Examination at the initial consultation revealed “papular erythematous dermatitis on dorsal aspect of his hands, together with pustular folliculitis involving the upper limbs”. A skin biopsy performed on 17 February 2005 revealed changes consistent with phototoxic dermatitis. A further skin biopsy performed on 29 June 2005 taken from the right arm revealed “changes of lichen, simplex chronicus, which are changes secondary to rubbing and scratching”. A further biopsy taken on 4 October 2005 from the left arm and left thigh suggested a primary dermatitis process secondary to scratching.
Based on his investigations and history, Dr Relic diagnosed that Mr Gwynne suffered from work related dermatitis consisting of acute episodes of phototoxic dermatitis induced by contact with pitch, together with chronic irritant contact folliculitis as a result of exposure to pitch and other chemicals. He recommended that Mr Gwynne was not fit to work in any situation that would involve contact with pitch/creosote or phenol-formaldehyde-resorcinol resin but was otherwise fit for alternative work.
Dr Relic reviewed Mr Gwynne on 21 October 2005 and confirmed the diagnosis of “chronic folliculitis, chemical induced, work related”.
Dr Relic reviewed Mr Gwynne again on 6 October 2005 due to continuing symptoms in his upper limbs and, to a less extent, his lower limbs and his hands and feet. He was complaining of feeling unwell, certainly when in contact with pitch fumes and complained of the lethargy, nausea and dizziness. Dr Relic again concluded that the symptoms were consistent with chemical toxicity to pitch and possibly other coal tar related chemicals. He recommended that Mr Gwynne see Dr Rosemary Watchorn, a dermatologist with a special interest in occupational dermatitis.
Mr Gwynne saw Dr Watchorn on 21 September 2005. Dr Watchorn recorded a history of symptoms that went back to December of 2004 when Mr Gwynne was working at the Tomago aluminium smelter. He described symptoms on his hands, particularly the right hand and arm, which had also been subject to sunburn over the Christmas period. He described that he felt it was a “pitch burn” which gave a blister over the back of the right hand.
Dr Watchorn recorded that in August 2005 (when Mr Gwynne was working for Veolia) he started to feel burning on the back of his right hand and suffered from shivering and itchiness. Dr Watchorn stated “his skin got red on the back of his hand and he came out in spots all over his body. He has red spots which he describes as coming up like black blisters. He says some of the blisters feel like something is pushing into them”. On examination Dr Watchorn found wide spread lesions on Mr Gwynne’s trunk and upper lateral thighs. He also had lesions on his face, especially on the left cheek and behind the right ear. She recorded a splitting lesion under the left ear. Dr Watchorn recommended skin biopsies and concluded that clinically the lesions “looked like acute toxic burns or Pityriasis Lichenoids Et Variolaformis Acuta”.
On 5 February 2007, Mr Gwynne was examined by Dr John Sippe, a specialist in diseases of the skin, at the request of his solicitor. At the time of the examination, there was no evidence of any dermatitis. Dr Sippe accepted that, from the previous history, Mr Gwynne should not be exposed to tar or pitch as it would be likely to cause a flare up in symptoms. Dr Sippe considered that Mr Gwynne had been fit to return to normal duties from early 2006. He said:
“There was no real evidence that he had a flare up of his dermatitis that was specifically related to sunlight or pitch, although he still continued to develop intermittent problems with his skin of a non-specific nature which I would not regard as being related to his workplace.”

In terms of prognosis, Dr Sippe said that although Mr Gwynne’s skin problem had fully resolved at the time he examined him, he said:
“It is probable that with his photosensitivity he would flare again if he returned to refractory work at Tomago aluminium and I understand he has been excluded from this area. He is fit to perform all other duties of bricklaying.”
Dr Gillam is a dermatologist who saw Mr Gwynne on 1 January 2012 for an independent medicolegal assessment at the request of Veolia’s solicitors, Bartier Perry. In her first report dated 30 January 2012, Dr Gillam obtained a history that in 2004 Mr Gwynne was exposed to pitch and developed a prickly rash on both arms, particularly bad on the webs between the fingers and thumbs. The rash was red, spotty and eventually lumpy. Dr Gillam noted that in June 2005, Mr Gwynne had gone back to work on the furnace and the rash became worse. However, he worked on until he suffered a pitch burn on his right hand on 13 August 2005, when the rash flared and he went off work. Dr Gillam reported the rash settled within two months.
In terms of Mr Gwynne’s employment with Beroa during the period 27 August to 24 October 2008, Dr Gillam recorded the following history:
“Mr Gwynne worked for York Linings [Beroa] for two months doing refractory brick work – no pitch – with no problem. When not working, the only thing that affects his skin is contact with grease and oils after the rash had settled.”
In terms of the diagnosis, Dr Gillam said:
“From the reports of Dr Relic, Dr Watchorn and Dr Sippe, I would conclude the diagnosis to be folliculitis due to chemical contacts (probably pitch) with photosensitivity. I think the condition was caused by contact with tar or pitch during his employment with Andreco Hurll in December 2004 and aggravated by his employment with Collex (Veolia) in August 2005.”
Dr Gillam expressed the opinion that “Mr Gwynne is incapacitated to work at his previous occupation as a refractory bricklayer if it is associated with pitch/tar”.
Dr Sippe reviewed Mr Gwynne on 14 February 2012. Regrettably the history he obtained on that occasion omitted reference to Mr Gwynne’s employment with Beroa during the period 27 August to 24 October 2008. He merely obtained a history that from 2005 to 2011 Mr Gwynne had worked as a casual labourer avoiding exposure to pitch. His prognosis remained essentially unchanged.
On 11 April 2012, Mr Gwynne participated in an Earning Capacity Assessment conducted by Ines Pasic of Compensation Assistance Services. Ms Pasic prepared a report on 13 August 2012. She obtained a comprehensive history of Mr Gwynne’s employment history. In terms of the employment with Beroa, Ms Pasic stated:
“Mr Gwynne indicated that in 2007 [sic] he commenced working with Forter Pty Ltd [Beroa]. He indicated that this work involved building a furnace on a full time basis. He was laying bricks in this role and it lasted for 2 to 3 months. He could not continue because he did not like the heat.”
In a further report dated 25 June 2012, Dr Gillam observed that the history contained in Mr Gwynne’s statements of 23 March 2012 and 24 May 2012, copies of which had been made available to her, were at odds with the history Mr Gwynne had given her on 18 January 2012 concerning the nature of the work he undertook when employed by Beroa. Dr Gillam said:
“The history in these reports is at variance with the history Mr Gwynne gave me when I examined him on 18 January 2012 when he stated that he worked for York Linings [Beroa] for two months doing refractory brick work – no pitch – and had no problem.” (emphasis in original)
Dr Gillam then made reference to various extracts from Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88 (Cant), which had been supplied to her by Bartier Perry, and gave the following opinion:
“Therefore if in fact he did have a flare-up of his skin condition during this time, then his employment at York Linings [Beroa] would have been a substantial contributing factor to the aggravation of his skin disease.
There was supposedly no pitch/tar at the work site at York Linings [Beroa] in the time he worked there from 27 August 2008 to 24 October 2008 but possibly some other petrochemical could have been a triggering factor.”
In the final report to Bartier Perry on 27 June 2012, Dr Gillam stated:
“On the balance of probabilities the flare up of Mr Gwynne’s skin disease of folliculitis during his employment at York Forter [Beroa] in 2008 resulted from either his exposure to pitch or tar or his exposure to some other irritating petrochemical in the course of that employment. The fact that the aggravation ceased shortly after he left that employment without him needing to seek medical treatment indicates that it was that employment which most likely caused the flare up or aggravation of his skin disease at that time.”

PROCEEDINGS BEFORE THE ARBITRATOR

It was either agreed or not disputed before the Arbitrator that Mr Gwynne:
(a)     suffers from a disease of gradual process being acute phototoxic reaction to pitch and irritant contact folliculitis due to exposure to chemicals (at [6] of the Reasons);
(b)     contracted this disease in the course of, or arising out of, his employment as a refractory bricklayer (at [7] of the Reasons);
(c)     suffered his injury in the employ of Veolia deemed to have occurred on 13 August 2005 after which he was paid weekly compensation by Veolia (at [8] of the Reasons), and
(d)     suffers a partial incapacity for employment as a result of his disease and that he is entitled to compensation during the period claimed (at [18] of the Reasons).
Although Mr Gwynne initially suffered skin problems while working for Andreco Hurll, Veolia accepted his claim and paid weekly compensation commencing on 13 August 2005. I infer that this was because, at that time, Veolia was the last employer to have employed Mr Gwynne in employment of the nature of which the disease was due. The issue before the Arbitrator was whether Beroa, which employed Mr Gwynne from 27 August 2008 until 24 October 2008 as a refractory bricklayer, was liable for the weekly compensation claimed.
Mr Gwynne’s counsel, Mr Edwards, submitted that if the deemed date of injury is 13 August 2005, the employer liable for the compensation claimed is the employer that last employed Mr Gwynne in employment of the nature to which his disease was due before the date of injury. That employer was Veolia and it was liable under s 4(b)(i) and s 15. Mr Edwards adopted Beroa’s submission that Mr Gwynne’s employment with Beroa was not employment to the nature of which the disease was due (T28.5–28.29) because there was no evidence that he was exposed to pitch or tar or any other substance or chemical which could have caused any disease or any aggravation of his disease injury. Mr Edwards submitted that if Beroa has any liability it could only be on an aggravation basis and, if so, it was a temporary aggravation and of no consequence.
Mr Stanton, Veolia’s counsel, submitted that Beroa was liable under s 15(1)(b) on the basis that Beroa was the last employer to employ Mr Gwynne in employment to the nature of which his disease was due (T11.23). Mr Stanton conceded (at T32.24) that if Beroa was to be found liable it would be under s 15. He stated (at T32.25) that it would be an error to make a finding under s 16 because there is only one disease condition and a s 16 aggravated disease cannot also be a s 15 disease of gradual process: Kelly v Glenroc Pastoral Co Pty Ltd (1994) 10 NSWCCR 178.

THE ARBITRATOR’S REASONS

The Arbitrator’s Reasons demonstrate that she carefully considered both the lay and medical evidence relevant to the issues before her. The Arbitrator concluded that Mr Gwynne’s employment with Beroa in 2008 was employment in a separate part of the Tomago aluminium smelter to that where he initially contracted his disease injury. She said that the area where he worked had been cleared and was free of any residue of pitch and tar.
The Arbitrator accepted Mr Gwynne’s evidence that, from 2005, his condition waxed and waned. The Arbitrator said [at 78]:
“When he worked for Beroa, although his skin became irritated, it was not on the same level of severity as in 2005, when the evidence shows his skin became red, scaly, and started to burn and eventually became lumpy. In fact in 2005 he came out in black blisters which he was able to quickly reproduce for biopsy samples by exposure to pitch. He was so concerned in 2005 by the state of his skin that he presented to the emergency department.”
In contrast, the Arbitrator noted that in 2008 Mr Gwynne did not seek medical treatment. She found (at [80] of the Reasons):
“There is no medical evidence that supports a finding that employment with Beroa was employment to the nature of which Mr Gwynne’s disease was due because Dr Gillam’s opinion address [sic] whether his employment with Beroa was a substantial contributing factor to the aggravation of Mr Gwynne’s skin disease, that is, it is an opinion which deals with a section 4(b)(ii) or section 16 case. Counsel for Veolia himself said it couldn’t be a section 15 and section 16 case. Indeed counsel for Veolia said it was more properly a section 15 case because it was the one condition that Mr Gwynne suffered from and there was no suggestion that the employment with Beroa had produced another condition.”
The Arbitrator concluded (at [81] of the Reasons):
“I am satisfied that Mr Gwynne’s case is more properly a section 4(b)(i) or section 15 case and that having weighed the totality of the evidence in the balance, on the balance of probabilities, he suffers from a disease of gradual process, namely acute phototoxic reaction to pitch and irritant contact folliculitis due to exposure to chemicals, contracted in the course of or arising out of his employment with Veolia in which he was exposed to pitch and to which his employment with Veolia was a substantial contributing factor, which such injury deemed to occur on 13 August 2005.”
Although the Arbitrator was satisfied that Mr Gwynne’s case was primarily under s 4(b)(i), she also considered, in the alternative, s 4(b)(ii) and s 16 of the 1987 Act (at [83]–[85] of the Reasons):
“83. For me to affix Beroa with liability I would have to be satisfied that Mr Gwynne’s employment with Beroa was a substantial contributing factor to the aggravation of Mr Gwynne’s skin disease.
84. Noting the evidence from Mr Gwynne about which he was not cross-examined, that he had a waxing and waning skin condition since the original injury in 2005, that he suffered some symptoms whilst working for Beroa but they were not as severe as those he had suffered from in 2005 and that he was working in a different part of the plant which had been cleaned and meant therefore to be free from pitch and tar, and that the symptoms were of a transient nature and were not severe enough to even warrant Mr Gwynne to seek medical treatment, I am not satisfied on the balance of probabilities that his employment with Beroa was a substantial contributing factor to the aggravation of his disease.
85. Accordingly there will be an award for Beroa and Veolia is the employer liable to pay Mr Gwynne weekly compensation as the employer who last employed Mr Gwynne in employment to the nature of which his disease was due.”

GROUNDS OF APPEAL

On appeal Veolia submit that the Arbitrator erred in:
(a) misdirecting herself as to the test of determining whether the employer is liable to pay compensation pursuant to s 15(1)(b) of the 1987 Act by:
(i)finding that medical evidence sufficient to establish that employment was an actual substantial contributing factor to the disease was not sufficient to discharge the less stringent test in s 15, of demonstrating that the worker’s employment with the second respondent was employment “to the nature to which the disease was due”, and
(ii)rejecting the only expert medical evidence addressing this issue, namely, the evidence from Dr Gillam.
(b) determining the issue of which employer last employed the worker in employment to the nature of which the disease was due (s 15) and, in the alternative whether there was an aggravation of the accepted disease injury (s 16) by rejecting or failing to accept the unchallenged opinion of Dr Gillam.

VEOLIA’S SUBMISSIONS

Ground 1

Veolia submits that Dr Gillam’s opinion that the worker’s employment with Beroa was a substantial contributing factor to the actual aggravation of the worker’s skin disease satisfied a more stringent and difficult test than the s 15 test of whether he was in employment to the nature of which the disease was due. Dr Gillam’s opinion was sufficiently strong to satisfy the higher test and, by necessary implication, should have been sufficient to prove that the worker’s employment with Beroa was employment to the nature of which the skin disease was due.
The Arbitrator misdirected herself as to the level of medical evidence required to satisfy the test in s 15 and erred by finding that the medical opinion was sufficient to satisfy the more stringent test of aggravation but insufficient to satisfy the less stringent test of whether the worker was employed with Beroa in employment to the nature of which the skin disease was due.
The Arbitrator erred by failing to exercise her discretion fairly and according to law because she acted upon an incorrect legal principle and allowed irrelevant considerations to influence her decision and failed to take into account relevant and material evidence. She did this by misconstruing the strength and nature of medical evidence required to establish whether the test in s 15, as against Beroa, was satisfied (Westpac Banking Corporation v Kilby and Bananacoast Credit Union [2005] NSWWCCPD 24 at 54 (Kilby) citing with approval South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18 (Edmonds No 1)).
The Arbitrator failed to consider the relevant principles derived from Cant where it was held that “irrespective of whether the pathology has accelerated the condition, there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased or become more serious to the injured worker”.
Whether the tests in s 15 or s 16 were satisfied as against Beroa was a question to be determined on the basis of expert medical evidence not the “gut feel” or instincts or lay conclusions of the Arbitrator (Conargo Shire Council v Quor [2007] NSWWCCPD 245 at [39] (Quor)).
The only medical evidence on these issues was the unchallenged evidence of Dr Gillam. It was probative and logical expert evidence. Beroa submits that the Arbitrator misdirected herself by defining the questions of the fact which she had to answer otherwise than in accordance with the tests in s 15 and s 16 of the 1987 Act.
The worker’s statement, in conjunction with the supplementary reports of Dr Gillam, demonstrate that the worker’s symptoms and restrictions arising from the work with Beroa increased and became more serious to him than they had been for the previous year or more, at least for a period of some weeks in October 2008. That evidence was sufficient to attach liability to Beroa as the last employer (Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond & Pegrin Pty Ltd [2006] NSWWCCPD 132 (Raymond), Cant and Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (Semlitch)).
In Raymond, Acting Deputy President Roche observed (at [71]) that, pursuant to s 15, it did not matter if the last relevant employer did not cause the incapacity. In that matter, the Acting Deputy President applied the dicta from Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White Constructions Pty Ltd & Ors (1995) 12 NSWCCR 365 (Grate Lace) by observing that the subsequent employment in that matter, also being the bricklaying industry, was not excused on the basis that it was irrelevant employment, or was “no florist shop”, as discussed in Grate Lace.
The employment with Beroa was employment at the Tomago aluminium smelter being the same smelter that Mr Gwynne had worked at for Veolia. Mr Gwynne said that he was concerned, in accepting the work with Beroa, that he would be exposed to pitch or tar, and although he stated that he could not point to any particular product, he (Mr Gwynne) believed that in the short time he worked for Beroa he was exposed to some sort of pitch or tar accidentally.
Further, Mr Gwynne’s evidence is that his condition improved rapidly after leaving the employ of Beroa and has remained at much the same level since. On the evidence, coupled with the fact that it may be inferred from the fact that Mr Gwynne was required to wear protective clothing, including gloves, mask, glasses, hard hat and long sleeve shirts and steel cap boots, there must have been some readily apparent risk of workers coming into contact with irritant petrochemicals at the smelter.
Whether or not the aggravation with Beroa was permanent or persisting is irrelevant because Mr Gwynne has given evidence that his condition had been stable and effectively dormant for several years before his employment with Beroa.
The evidence is that Mr Gwynne first suffered symptoms in relation to his skin disease whilst in the employ of Andreco Hurll. Therefore it is submitted that the aggravation of Mr Gwynne’s disease caused by both Veolia and Beroa were both temporary aggravations.

Ground 2

In arriving at the conclusion that Mr Gwynne’s condition had not been aggravated as a result of his employment with Beroa, the Arbitrator failed to refer to the only medical opinion which addressed the issue, namely, that of Dr Gillam. This involved the Arbitrator erring by failing to take into account or giving sufficient weight to the only relevant medical evidence on the point in issue. This was relevant to the application of the principles in Cant, namely, whether the aggravation or exacerbation of the disease occurs if the symptoms and restrictions emanating from it have increased or become more serious to the injured worker. Veolia relies on the submissions in support of ground one in support of its allegations of error in ground two.

BEROA’S SUBMISSIONS

Beroa submits that the decision of the Arbitrator should be affirmed and the appeal dismissed on the basis that the Arbitrator’s findings were open to her on the available evidence.
Counsel for Veolia conceded that the matter was an “either/or case” and submitted on that basis it was open to the Arbitrator to accept that the injury was either a disease injury within the meaning of s 15 or an aggravation of a disease within the meaning of s 16. Beroa submits that the Arbitrator properly addressed both alternative arguments.
The Arbitrator did not accept that Dr Gillam’s evidence established that Mr Gwynne’s employment with Beroa was a substantial contributing factor to the injury, in fact at [84] of the Reasons, the Arbitrator determined to the contrary stating:
“I am not satisfied on the balance of probabilities that his employment with Beroa was a substantial contributing factor to the aggravation of his disease.”
It is not correct to allege that the Arbitrator found that the evidence which satisfied “the substantial contributing factor test” was therefore sufficient to establish the “employment to the nature in which the disease was due” test.
It was within the Arbitrator’s discretion to reject Veolia’s medical evidence. Veolia has not established that the Arbitrator erred in failing to take into account or gave insufficient weight to some relevant matter as required by Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. The Arbitrator considered, in detail, Veolia’s medical evidence but chose not to accept it. Beroa submits that the Arbitrator was not bound to accept Dr Gillam’s opinion. It was formed some four years after the condition complained of became evident, and failed to deal with the evidence that the condition “waxed and waned” over time.

There was no contemporaneous evidence to support a connection between an increase in the worker’s symptoms and his employment with Beroa. It was therefore open to the Arbitrator to reject the evidence of Dr Gillam as it was based upon the misapprehension that there was evidence to support an increase in the workers symptoms relating to his employment with Beroa. Further, it did not specifically address the question of whether the worker’s employment with Beroa was employment to the nature of which his disease was due.
Beroa rejects the categorisation of the Arbitrator’s conclusions as being based on a “gut feel” as alleged by Veolia.

Ground 2

Beroa relies on its submissions in support of its opposition to ground one.

MR GWYNNE’S SUBMISSIONS

Mr Gwynne filed a submitting appearance noting the following matters:
“1. The appellant [Veolia] does not put in issue in its appeal, any of the following matters relevant to the first respondent the worker [Mr Gwynne] below:-
(a)That the worker suffered a disease of gradual onset being acute photo toxic reaction to pitch and irritant contact folliculitis due to exposure of chemicals;
(b)That the disease arose out of his employment as a refractory bricklayer;
(c)That the deemed date of injury pursuant to Section 15 was 15 August 2005 whilst in the employ of the appellant [Veolia];
(d)That the worker suffered an incapacity;
(e)That the worker was entitled to weekly compensation in accordance with the findings of the Arbitrator at Paragraph 113 of her judgment which thereafter formed the Award;
(f)That the worker is entitled to an award of weekly compensation in accordance with the determination and order 3 of the Commission.”
In view of the submitting appearance Mr Edwards who appeared for Mr Gwynne on the appeal, refrained from making submissions on the merits of the appeal, however he made the following submissions directed to the application of the correct legal principles.
Once the concessions referred to at [80] of this decision were made before the Arbitrator, which were not retracted on appeal, injury under s 4 (b)(i) was established. It was agreed the injury was deemed to have occurred on 13 August 2005. From that date the task is to look backwards, not forward, to determine the employer to have last employed the worker in employment to the nature of which the disease is due.
In so far as the employment with Beroa was concerned, it could only be susceptible to a finding under s 16, which requires proof of causation, unlike s 15 which is not dependent on proof of causation and an injurious event.
In the event that an aggravation injury is proven, it is necessary that the aggravation have continuing effect to warrant a continuing award of compensation. This is the effect of the findings of Deputy President Roche in Inman v NSW Police Force [2013] NSWWCCPD 11 at [331].

CONSIDERATION

Was the employment with Veolia employment to the nature of which the disease was due – s 15 of the 1987 Act?

General Principles

In Smith v Mann [1932] HCA 30; 47 CLR 426 (Smith) Dixon J, discussed at length the meaning of s 6(4) of the Workers Compensation Act 1926, which is in similar terms to s 15 of the 1987 Act. His Honour made it plain (at 449) that the section is not concerned with causation in fact, but is concerned with exposure to a risk which may be causative of the disease.
In Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269 (Tame), Jordan CJ held (at 272):
“I think that ‘employment to the nature of which the disease was due’ means employment of such a kind as to involve a risk to the employee of contracting the gradual process disease which is disabling him. In the present case, what is complained of is a disease contracted by a gradual process of the inhalation of silica dust. For the worker to succeed, it was necessary for him to satisfy the Commission that his employment by his last employer was of such a kind as to expose him to the risk of inhaling silica dust…I agree that if it had been established that, although his last employment was such as ordinarily involved a risk of inhaling silica dust, nevertheless work with his last employer was carried on under special conditions which made the inhalation of silica dust impossible, the worker would have failed: Lewis and Towers Ltd v Semblitz (1934) 27 B.W.C.C. 125 at 130.”
In Grate Lace Kirby P (as his Honour then was) held that the reference in s 15(2) to an employment “to the nature of which the disease was due” is designed to excuse a completely irrelevant employer, for example a bricklayer temporarily working in a florist shop where there is no exposure to an allergen found in cement.
In GIO General Limited v ABB Installation & Service Pty Ltd and Ors [2000] 19 NSWCCR 720; NSWCA 118 (GIO v ABB), in a joint judgment of the NSW Court of Appeal (Mason P, Beazley JA and Heydon JA), the extent and meaning of the expression “employment to the nature of which the disease was due” was considered at length in the context of proceedings under s 151AB of the 1987 Act, which deals with special insurance provisions relating to occupational diseases. The Court observed that in CIC Workers Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169 (Alcan) Gleeson CJ said (at 176):
“The problem being addressed [by s 151AB(1)(a)] is that of the disease contracted by gradual process. The idea of the disease being due to employment of a certain nature directs attention not to the contract of employment but to the work being performed and the exposure to risk involved in that work.” (emphasis added)
His Honour reiterated the point (at 177) stating:
“The employment is not a contractual relationship with [the employer] but the engagement in a form of activity which exposed him to a risk of a disease of such a nature as to be contracted by a gradual process.”
In GIO v ABB Court of Appeal also noted that in Alcan, Gleeson CJ adopted the statement in principle in Tame (referred to at [86] above). His Honour noted that the construction made good sense and postulated (at 176):
“Why should the legislature have intended to render liable under s 151AB an insurer who came on risk only after (for example) a program of asbestos removal had been undertaken (and, perhaps, had negotiated a premium accordingly)?”
Further, in GIO v ABB their Honours referred with approval to the decision of the Court of Appeal in CIC Workers Compensation (NSW) Ltd v Kellogg (Australia) Pty Ltd (1996) 40 NSWLR 422 (Kellogg). That case involved a claim for damages for mesothelioma. The Court found that there was ample evidence of direct exposure to asbestos until 1984. That was sufficient to find in favour of the plaintiff. However, from about 1984 the plaintiff’s work tasks no longer brought him into direct contact with asbestos, despite asbestos still remaining on the premises which the plaintiff was required to walk through during the course of his employment. The asbestos was gradually being removed from the workplace as part of an upgrade of the Kellogg’s factory. CIC contended that s 151AB was directed to the actual circumstances of the employment, that is, the employment tasks of the worker and not the general conditions of the workplace. Priestly JA rejected that contention holding (at [427]) that:
“[A]n employee was within the requirements of [s 151AB] if in the course of carrying out the employment the employee was in fact exposed to risk because of the employment, employment for this purpose embracing not only the actual work tasks performed by the employee, but also those of the employee's movements through the employer's premises in the course of employment which exposed the employee to risk of inhalation of asbestos particles.”
In GIO v ABB their Honours noted that the decision of Kellogg must be read in the context of its own facts and found at [26]:
“CIC may have been able to make good its submission that it was not liable indemnify Kelloggs had it been able to establish that, because of protective measures it had taken, the plaintiff's movements around the workplace did not expose him to the risk of inhalation of asbestos. However, the trial judge's findings of fact did not support that conclusion.”
From the cases to which I have referred, the following principles emerge:
(a)     sections 4(b)(i) and 15(1)(b) are not concerned with proof of actual causation of injury (Smith);
(b)     the employment must be of such a kind as to expose the worker to the risk of contracting a disease of gradual process (Tame);
(c)     the employment embraces not only the actual work task performed by the worker but also their movements through the employer’s premises in the course of their employment, which expose them to the risk of injury (Kellogg), and
(d)     each case must be considered on its own facts in order to determine the work tasks and/or whether a worker is exposed to the risk of injury by reason of his/her movements in and around the workplace, taking into account any protective measures available (GIO v ABB).

The factual background and findings of fact

Mr Gwynne disclosed to Beroa before he commenced working there, that he had experienced a problem with his skin whilst working for Veolia due to exposure to pitch and tar. He was assured at the induction for new employees that he would not be exposed to coal pitch tar in the course of the work for Beroa.
During the course of his employment with Veolia and Beroa, Mr Gwynne worked as a refractory bricklayer at the Tomago aluminium smelter. However, for the reasons identified by the Arbitrator, his duties with Beroa were quite different to the duties he performed with Veolia.
The work performed by Mr Gwynne for Beroa was undertaken in an entirely different part of the smelter to that where he formerly worked for Veolia in 2005. The old ovens he had worked on had been demolished and the site had been cleared before the re-building work commenced. The evidence does not elucidate precisely what had been cleared and neither counsel at the hearing of the appeal were able to clarify what was meant by that statement, however it was submitted by Mr Underwood, who appeared for Veolia, that the site was akin to a “greenfields site”, namely, a fresh or new site.
Unlike his employment with Veolia, there is no evidence that Mr Gwynne was exposed to coal pitch or tar or any other sensitising agent during his employment with Beroa. The evidence is to the contrary. As the Arbitrator found, Mr Gwynne clearly stated that he was not exposed to pitch or tar during the course of his employment with Beroa. He said that there was no evidence of those substances being present at the work site. In addition Beroa had gone to considerable lengths, by the use of protective equipment to ensure that he could not be exposed to such substances.
Moreover, unlike the facts in Kellogg, during the period of his employment with Beroa, Mr Gwynne was not permitted to access sites within the smelter complex where he could be exposed to such substances, and he did not do so. The area he worked in was quarantined from the rest of the smelter to the extent that special sheds were provided for meals away from the other employees and contractors on the site.
These facts formed the basis of the Arbitrator’s conclusion that Mr Gwynne’s employment with Beroa was not employment to the nature of which the disease was due. The Arbitrator articulated her Reasons at [76]–[80] which may be summarised as follows:
(a)     the work with Beroa was undertaken in a separate part of the smelter that had been cleaned (sic, cleared) and was therefore free of pitch and tar [76];
(b)     from 2005 Mr Gwynne’s condition waxed and waned [77];
(c)     when working with Beroa his skin became irritated but not to the same level of severity as in 2005, when he suffered a burning sensation, his skin was red, scaly, eventually lumpy, and the skin formed black blisters which could be reproduced for biopsy samples by exposure to pitch [78];
(d)     Mr Gwynne was so concerned by the condition of his skin in 2005 that he presented to the a hospital emergency department [78];
(e)     in contrast, in 2008 Mr Gwynne did not seek medical treatment [79], and
(f) Dr Gillam’s opinion was addressed to the issue of aggravation, not the issue of whether the employment with Beroa was employment to the nature of which his disease was due [80].
The Arbitrator’s factual findings are consistent with the evidence.

Allegations of error

Veolia’s attack on the Arbitrator’s conclusion focuses primarily on the Arbitrator’s rejection of Dr Gillam’s evidence as providing any support for a finding that Mr Gwynne’s employment with Beroa was employment to the nature of which his disease was due.
Dr Gillam initially formed the opinion, based on the history she obtained directly from Mr Gwynne, that he experienced no problems at all whilst working for Beroa. Her revised opinion is based solely on an examination of Mr Gwynne’s statements which were made several years after the relevant events. Dr Gillam merely concluded that if it is accepted that Mr Gwynne’s condition flared up during the course of his employment with Beroa, and that the condition settled soon after leaving that employment, then on the balance of probabilities it was the employment which “most likely” caused the flare up or aggravation of his disease at that time.
The Arbitrator was correct to observe that Dr Gillam’s opinion was directed to the question of aggravation, not to the issue of whether Mr Gwynne’s employment with Beroa was employment to the nature of which his disease was due. The concepts are quite different and depend on the application of different legal principles.
Sections 4(b)(i) and 15 are not concerned with causation in fact, but are concerned with exposure to a risk which may be causative of the disease (Smith), whereas, ss 4(b)(ii) and 16 are dependent on actual proof of an aggravation injury to which the employment is a substantial contributing factor (s 9A).
At the oral hearing of the appeal, Mr Underwood conceded (contrary to his written submissions) that it does not follow that in all cases where an aggravation occurs during certain employment that, by reason of that fact alone, that employment must also be employment to the nature of which the disease was due. He accepted, for example, Mr Gwynne’s condition is photosensitive and could therefore be aggravated by exposure to direct sunlight such as employment outdoors in a manual capacity, yet such employment would not be employment to the nature of which his condition is due, because it does not involve exposure to substances, such as pitch and tar (Appeal T18.26–19.2).
Dr Gillam’s evidence merely speculates that Mr Gwynne’s condition resulted from either exposure to pitch or tar or some other irritating petrochemical in the course of his employment. The unchallenged evidence clearly establishes that Mr Gwynne was not exposed to pitch or tar during the course of his employment, nor is there any evidence of exposure to any other irritating petrochemical. For this reason, Dr Gillam’s revised opinion is of limited, if any, evidentiary value. Consequently, the Arbitrator’s treatment of Dr Gillam’s evidence, including the conclusion that it did not assist in determining whether Mr Gwynne’s employment with Beroa was employment to the nature of which his employment was due, was correct.
Mr Underwood submitted that the weight and relevance to be given to evidence before an Arbitrator is a matter that falls within the Arbitrator’s discretion. He cited Kilby (at [54]) and Emonds No 1 in support. That submission is not correct. In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (Edmonds No 2) McColl JA (Giles and Tobias JJA agreeing) held that the Deputy President in Edmonds No 1 erred in law in concluding that the weight to be given to expert evidence was a discretionary matter. Her Honour said at [133]:
“The Deputy President rejected the appellant’s challenge to the Arbitrator’s acceptance of Dr Rivett’s opinion on the basis that the relative weight and relevance of the expert evidence was a discretionary decision which could only be disturbed on House v The King principles. This was, in my view, an over-generalisation. There are certainly aspects of the laws of evidence which involve discretionary decisions. The application of ss 135 and 136 of the Evidence Act 1995 are ready examples. However the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.”
The Arbitrator did not misconstrue the strength and nature of the medical evidence as alleged, she carefully weighed Dr Gillam’s evidence with all of the available evidence. The Arbitrator was not persuaded by Dr Gillam’s evidence for the reasons given at [95] of this decision. The evaluative process undertaken by the Arbitrator did not involve any exercise of discretion.
Mr Underwood’s submission that the test in s 15 or s 16 is to be determined on the basis of medical evidence and not a “gut feel” is misplaced. The Arbitrator did not determine the issues before her by “gut feel”. The evaluative process of the issues before the Arbitrator involved a consideration by her, not only of the medical evidence, but also the facts as she found them. Cases such as Tame, GIO v ABB and Kellogg highlight the need to evaluate the circumstances in which the work is performed in order to make a determination under s 15. Such a determination cannot be made on the basis of the medical evidence alone. For these reasons I reject that submission.
The passage cited by Mr Underwood in Quor does not support his argument concerning the significance of the medical evidence. The issue in Quor was essentially concerned with the Commission’s powers with respect to making its own conclusions about the medical condition of a worker in the absence of medical evidence. That was not in issue in the proceedings before the Arbitrator. It was accepted that Mr Gwynne contracted a disease of gradual process, namely, phototoxic reaction to pitch and irritant contact folliculitis, due to exposure to chemicals in the course of, or arising out of, his employment as a refractory bricklayer.
Mr Underwood submitted that it may be inferred from the skin irritation suffered by Mr Gwynne while working with Beroa, coupled with the fact that he was required to wear protective clothing, that there must have been some readily apparent risk of contact with irritant petrochemicals. This submission is contrary to the unchallenged evidence that Mr Gwynne was not exposed to pitch, tar or any other irritating petrochemical during the course of his employment with Beroa.
Mr Gwynne said that when he worked for Beroa he wore protective clothing, including gloves, masks, glasses, hard hat, long sleeve shirts and steel capped boots. This is not inconsistent with the form of protective clothing and equipment used in the construction industry generally. He said he only wore a mask from time to time as required when cutting bricks or cutting up insulation.
In contrast, Mr Gwynne stated that when he worked for Veolia he wore protective gloves, overalls and an “air stream helmet and balaclava”. He said that the helmet was used to protect workers from contamination by pitch and volatile tar contained in glue resin. That was not a feature of his employment with Beroa, where he wore a hard hat not an “air stream helmet”. Contrary to Mr Underwood’s submission, the fact that Mr Gwynne wore some protective clothing with Beroa does not give rise to an inference that the protective clothing was worn because of a risk of exposure to irritant substances.
For the foregoing reasons, on the evidence presented the Arbitrator’s finding that Mr Gwynne’s employment with Beroa was not employment to the nature of which his condition is due was correct and does not reveal any error.

Was there an aggravation injury with Beroa under s 4(b)(ii) and s 16 of the 1987 Act?

The grounds of appeal filed by Mr Underwood only challenge the Arbitrator’s finding under s 16 by reason of her rejection or failure to accept the opinion of Dr Gillam.
It is true that the Arbitrator’s Reasons dealing with the aggravation issue did not make an express reference to Dr Gillam’s evidence. That is not surprising because, after having taken the Arbitrator at length to extracts from Dr Gillam’s reports, counsel for Veolia, Mr Stanton, submitted that Dr Gillam’s evidence established that whilst Mr Gwynne was employed by Beroa he was working in employment of the nature to which his disease condition was due (T10.31). The same submission was repeated at T11.14 and again at T11.24, at which point the Arbitrator was invited to make a finding under s 15(1)(b) against Beroa. In other words, there was no submission by Veolia before the Arbitrator that Dr Gillam’s evidence formed the basis of a finding under s 16.
The Arbitrator only dealt with the claim under s 16 because it was part of Mr Gwynne’s alternative case (not Veolia’s) and even then it was only faintly pressed. Mr Edwards did not rely on Dr Gillam’s evidence in support of the claim under s 16 and did not refer the Arbitrator to it.
Mr Stanton expressly disavowed any reliance on s 16. He submitted at [T11.20]:
“It is not as if we are dealing with a situation where there claiming for weekly benefits for something before he worked for the second respondent, so we submit that in accordance with s 15(1)(b) that the compensation is payable by the second respondent…”
In submissions in reply, Mr Stanton added at [T32.26]:
“…Kelly v Glenrock Pastoral Company, it is a Court of Appeal decision is the authority for the proposition that a s 16 aggravation disease can’t also be a disease of gradual process for the purpose of s 15. My friend’s submission, as I understand it, is that for the purposes of the first respondent he’d be using s 15 and for the purposes of the second respondent he’d be using s 16. I would submit that it would be form and [sic fall into] error to do that because if it’s a disease contracted by gradual process that s 15 is objectionable [sic applicable]. We are only talking about one condition. There is no suggestion that the work with the second respondent somehow produced another condition.”
At the appeal hearing Mr Edwards, quite properly, objected to Mr Underwood’s submissions under s 16, by reason of the fact that Veolia’s submission before the Arbitrator was limited to establishing liability against Beroa under s 15 not under s 16.
It is plain from the exchanges referred to above and from Mr Edwards’s submissions that Mr Underwood’s submissions on appeal were not argued before the Arbitrator and therefore she cannot have erred in failing to deal with them: Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111.
To the extent that s 16 was argued (by Mr Gwynne) the Arbitrator dealt with it and concluded that Mr Gwynne’s condition had not been aggravated by his employment with Beroa. Her reasons were:
(a)     whilst working with Beroa he worked in a different part of the smelter, one that had been cleared and was free from pitch and tar;
(b)     Mr Gwynne challenged evidence that his condition waxed and waned since 2005 [84];
(c)     whilst working for Beroa his symptoms were “not on the same level of severity” as those suffered in 2005 [78];
(d)     the conditions under which he worked with Beroa were free from exposure to pitch and tar [84];
(e)     the symptoms were “transient in nature” [84], and
(f)      the symptoms were not sufficiently severe to warrant seeking medical treatment.
The factual findings were open on the evidence and they disclose no error.
As I have indicated the Arbitrator did not make express reference to Dr Gillam’s evidence when dealing with the aggravation issue, however, it is clear from a reading of the Arbitrator’s Reasons as a whole that she considered Dr Gillam’s evidence at length as demonstrated by her Reasons at [63]–[70].
As counsel for Beroa submitted at the appeal hearing, the Arbitrator’s decision must be read as a whole when considering the adequacy of the Reasons. The Arbitrator’s decision must be read fairly (Sarian v Elton [2011] NSWCA 123 at [19]). It is not an error of the law to omit to state expressly a finding that is clear on a fair reading of the decision maker’s decision (Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [46], [55], [56] applied in Vitaz v Westform (NSW) Pty Ltd [2010] NSWSC 667). I am satisfied that, on a fair reading of the Arbitrator’s decision, she had full regard to Dr Gillam’s evidence and clearly did not accept it. The omission to make further express reference to Dr Gillam’s evidence in giving her Reasons concerning the aggravation issue does not amount to an error.
If I am wrong, and the Arbitrator erred by not finding a s 16 aggravation, it is not an operative error in the sense discussed by Basten JA in Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 (at [17] and [20]). That is, it is not an error that has affected the outcome.
Mr Underwood submitted that Mr Gwynne’s evidence read in conjunction with Dr Gillam’s evidence established that Mr Gwynne’s symptoms and restrictions arising from the work with Beroa increased and became more serious than they had been for the previous year or more.
Mr Underwood further submitted that, as a consequence of both aggravations, Mr Gwynne suffered a partial incapacity for work and was unable to return to refractory bricklaying work. He submitted that the incapacity worsened in degree or altered after the period of employment with Beroa because as Mr Underwood put it (Appeal T 7.10):
“…because that was his last shot at it, to see if his skin could tolerate it and it couldn't, on his own evidence…”
Mr Underwood submitted that Mr Gwynne went from the position of being able to do refractory bricklaying work for some weeks in August to October 2008 to never being able to do it again. I do not accept that submission.
Where a claim is based on an aggravation of a disease, it must be shown that the incapacity resulted from the aggravation of the disease rather than from the original disease and that has not been established on the evidence (Semlitch at [368]).
In McLaughlin & Co Pty Ltd v Brinnand [1965] WCR NSW 112 at 118 Windeyer J (Kitto, Menzies & Owen JJ agreeing) held:
“if without any aggravation or acceleration contributed to by his employment, a worker would have become incapacitated to the extent he was and when he was by a disease from which he was suffering then, whether or not there was in fact any aggravation, acceleration or exacerbation of the disease his incapacity cannot be said to result from the aggravation, acceleration or exacerbation.”
In Semlitch, Windeyer J (at [9]) held that an aggravation occurs when “the disease has been made worse in the sense of more grave, more serious, or more serious in its effects upon the patient”. As I have indicated, the evidence established that Mr Gwynne gave inconsistent reasons for leaving Beroa. He initially told Dr Gilliam that he experienced no problems whilst working for Beroa. Subsequently he told Ms Pasic that he left Beroa because he did not like the heat. Neither reason suggests that he left because of his dermatitis.
However, the evidence Mr Underwood urges me to prefer is Mr Gwynne’s evidence in his statement of 24 May 2012, where he said that his condition at that time was “uncomfortable”. Accepting that to be the case, there is no evidence that Mr Gwynne left Beroa’s employ because of the condition of his skin in October 2008.
Mr Gwynne’s evidence established that he had a demonstrated incapacity for refractory bricklaying work that exposed him to pitch and tar before the work with Beroa. He had the same restriction after he left Beroa.
Dr Relic said in early 2005, that is, long before the alleged aggravation that Mr Gwynne was unfit for work in any situation that involved contact with pitch, creosote or phenol-formaldehyde-resorcinol resin but was otherwise fit for alternative work.
Dr Sippe said in 2007, again well before the alleged aggravation with Beroa, that Mr Gwynne was unfit for refractory bricklaying work at Tomago aluminium smelter, if it exposed him to pitch and tar, but was otherwise fit to perform other bricklaying duties.
Dr Gillam stated in her report of 30 January 2012, that is, well after the alleged aggravation in 2008, that Mr Gwynne was incapacitated from his previous occupation as a refractory bricklayer “if it is associated with pitch/tar”. No other medical evidence concerning Mr Gwynne’s capacity for work following the alleged aggravation was called.
It follows that the medical evidence establishes that the incapacity suffered by Mr Gwynne both before and after the alleged aggravation is the same, namely, an incapacity for refractory bricklaying work where he is exposed to a risk of coming into contact with pitch or tar.
A further reason why any error by the Arbitrator in relation to the aggravation issue is of no consequence, is because Veolia also failed to establish that, if Mr Gwynne suffered an aggravation of the disease during the course of the employment with Beroa, such aggravation resulted in any economic incapacity.
In Commonwealth v Muratore (1978) 141 CLR 296 (at 300) Jacobs J held “it has always been recognised that ‘incapacity for work’ those words being taken to refer to the physical incapacity, is only relevant when it produces an economic incapacity”.
Therefore, if there had been an aggravation for which Beroa was liable, it did not sound in any economic incapacity because, for the reasons given, the limitations on Mr Gwynne’s capacity for work, namely, refractory bricklaying did not alter as a result of the alleged aggravation.

OTHER MATTERS

On appeal Mr Underwood sought to put an alternative argument. He submitted that, in substance, what occurred in Mr Gwynne’s case is that he sustained the disease injury whilst an employee of Andreco Hurll and subsequently suffered aggravations of the disease whilst employed by both Veolia and Beroa. He further submitted that, as Beroa was the last employer to have employed Mr Gwynne in employment that was a substantial contributing factor to the aggravation, exacerbation or deterioration of his disease, Beroa would be liable for the compensation claimed under s 16.
It is trite law that parties are normally bound by the conduct of their case at first instance (University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68, at 71), and as the submission put on the appeal was not argued before the Arbitrator I am reluctant to deal with it at all. In any event, I reject the submission, for the following reasons.
The submission is based on a false premise that Mr Gwynne suffered an aggravation injury with Veolia. It was conceded before the Arbitrator that Veolia’s liability arose under s 4(b)(i) not s 4(b)(ii). Mr Stanton disavowed any claim under s 4(b)(ii). It is therefore untenable to suggest on appeal that Beroa’s liability arose under s 4(b)(ii) and s 16.
Moreover, for the reasons explained above, even if Mr Gwynne did suffer a s 4(b)(ii) injury with Beroa, that injury has not resulted in any incapacity and, as Mr Edwards submitted, it is of no consequence.
For these reasons the second ground of appeal also fails and Mr Underwood’s additional submissions on appeal are also rejected.

CONCLUSION

The Arbitrator was correct to conclude that Mr Gwynne suffers from a disease of gradual process, namely acute phototoxic reaction to pitch and irritant contact folliculitis due to exposure to chemicals contracted in the course of or arising out of the course of his employment with Veolia. The injury is deemed to have occurred on 13 August 2005.
Neither Mr Gwynne nor Veolia established that there was any aggravation, acceleration, exacerbation or deterioration of the disease in the course of Mr Gwynne’s employment with Beroa to which his employment was a substantial contributing factor.

ORDERS

The orders made in the Certificate of Determination dated 22 October 2013 are confirmed.
The appellant is to pay the first and second respondents’ costs of the appeal.

Judge Keating
President

5 March 2014

I, CYNTHIA BENITEZ, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE