Veolia Environmental Services Pty Ltd v Gwynne

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

1. 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.

2. 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.

3. 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.

4. An issue arose between the parties as to whether Mr Gwynne’s subsequent employment with Beroa was employment to the…