DOC78 1 V3.0711

WORKERS COMPENSATION COMMISSION

CERTIFICATE OF DETERMINATION

(Issued in accordance with section 294 of the Workplace Injury Management and Workers Compensation Act 1998)

MATTER NO: 007821/13

APPLICANT: Daniel Attard

FIRST RESPONDENT: United Group Rail Services Pty Limited

SECOND RESPONDENT: Power Projects International

THIRD RESPONDENT: Performance Engineering Group Pty Limited

DATE OF DETERMINATION: 4 September 2014

CITATION: [2014] NSWWCC 311

The Commission determines:

1. Pursuant to the former version of section 4(b)(i) of the Workers Compensation Act 1987 the

applicant sustained injury to his skin in the form of dermatitis in the course of his

employment with the first respondent to which his employment was a contributing factor.

2. Pursuant to the former version of section 9A of the Workers Compensation Act 1987 the

applicant’s employment with the first respondent was a substantial contributing factor to his

injury.

3. Pursuant to section 15(1)(b) of the Workers Compensation Act 1987 compensation is payable

by the first respondent, being the last employment to the nature of which the disease was

due.

4. Award for the second and third respondents.

5. The lump sum claim against the first respondent is remitted to the Registrar for referral to an

Approved Medical Specialist to assess the whole person impairment in relation to injury to

the skin with date of injury of 19 March 2012. The documents to be referred to the Approved

Medical Specialist are to include those in evidence before me and a copy of this Certificate

of Determination and Statement of Reasons.

6. The first respondent is to pay the applicant’s section 60 expenses on production of accounts

and or receipts or Medicare charge.

A brief statement is attached to this determination setting out the Commission’s reasons for the

determination.

I CERTIFY THAT THIS PAGE AND THE FOLLOWING PAGES IS A TRUE AND

ACCURATE RECORD OF THE CERTIFICATE OF DETERMINATION AND REASONS FOR

DECISION OF JOSEPHINE SNELL, ARBITRATOR, WORKERS COMPENSATION

COMMISSION.

Darren Moore

Senior Dispute Services Officer

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By Delegation of the Registrar

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STATEMENT OF REASONS

BACKGROUND

1. Daniel Attard, the applicant, is now aged 42. He was employed as a boilermaker and welder

with the first respondent, United Group Rail Services Pty Limited who took over A Goninan

& Co Ltd. He alleges in around 1999 he worked for the first respondent carrying out duties

as a spray painter and after a few months he began to develop a rash on the back of his

hands. He attributes this to exposure to a solvent known as gun wash which was used to

clean the paint equipment. He says this became progressively worse as he performed this

work. He resigned from the first respondent effective from 4 May 2001. He ran his own

business, Danga Innovations, from about 2000 to 2011. Through this business he contracted

to do work for Guttershield Systems Australia from about 2000 to 2009 and he states he was

not exposed to any chemicals in this job, as it involved administrative work and sales. From

2009 to 2011 he was involved in his business selling home improvement products. From

April 2011 to June 2011 he was employed by All States Trailer Spares as a

boilermaker/welder. From August to November 2011 he was employed by the second

respondent, Power Projects International Pty Ltd, as a boilermaker and from February to

March 2012 he was employed by the Third Respondent, Performance Engineering Group

Pty Ltd, as a boilermaker/welder. After his employment with the third respondent he has

worked in Queensland for J Smiths & Sons and Scott & Ensoll as a boilermaker/welder.

2. Mr Attard claims that since the onset of his dermatitis due to his employment with the first

respondent he has suffered ongoing symptoms of dermatitis. He states despite his work

before the first respondent also involving boilermaking and welding he did not suffer from

any prior skin condition affecting his hands. He says after his employment with the first

respondent no other job he has performed required him to come into contact with gun wash

or any other chemical substances. He has not been employed again as a spray painter.

3. Mt Attard seeks lump sum compensation and a general order for incurred section 60

expenses, which total about $262.25.

4. After some discussion between counsel, Mr Attard’s counsel sought to amend the date of

injury relied upon against the first respondent to 19 March 2012 in relation to the lump sums

claimed. The first respondent did not object to this amendment. (T16) The Application to

Resolve a Dispute (the Application) is amended accordingly.

5. In relation to the lump sum claims against the second and third respondents the date of injury

was amended to 3 May 2013 (T18).

ISSUES IN DISPUTE

6. The first respondent, a self-insurer, served an Amended Notice under section 74 of the

Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated

29 August 2012 in which it denied injury under section 4 and in the alternative asserted that

any injury was a disease under section 4(b)(i) or (ii) and the first respondent was not the last

relevant employer. It also disputed that the employment with it was a substantial

contributing factor to any injury suffered by Mr Attard. Reliance on sections 281 and 282 of

the 1998 Act was not maintained. (T19.15)

7. The second respondent’s workers compensation insurer, Gallagher Bassett Services, served a

section 74 Notice dated 7 August 2013 in which it disputed whether Mr Attard’s

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employment with it was a substantial contributing factor to the injury and it was not the last

relevant employer.

8. The third respondent’s workers compensation insurer, QBE Workers Compensation (NSW)

Limited, served section 74 Notices dated 21 May 2013 and 1 August 2013 in which it

disputed whether Mr Attard’s employment with it was a main contributing factor to the

injury or to any aggravation of the condition.

9. Counsel for the second and third respondents, acting under a lead scheme agent agreement,

clarified the issues in dispute as involving sections 4 and 9A of the Workers Compensation

Act 1987 (the 1987 Act), that the employment was not employment to the nature of which

the injury was due, there was no demonstrable incapacity flowing from any allegation of

aggravation with either of the second and third respondents and the respondents were not the

last relevant employer.

PROCEDURE BEFORE THE COMMISSION

10. The parties attended a conciliation/arbitration hearing on 27 May 2014. Mr Attard attended

and was represented by Mr G Young, counsel, the first respondent was represented by

Ms L Goodman, counsel, and the second and third respondents by Ms Wood, counsel. I am

satisfied that the parties to the dispute understand the nature of the application and the legal

implications of any assertion made in the information supplied. I have used my best

endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all

of them. I am satisfied that the parties have had sufficient opportunity to explore settlement

and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

11. The following documents are in evidence before the Commission and have been taken into

account in making this determination:

(a) Application to Admit Late Documents dated 25 March 2014 attaching

Application to Resolve a Dispute (the Application) and annexures ;

(b) The Reply dated 21 October 2013 filed by the first respondent and attached

documents;

(c) The Reply filed by the second respondent and attached documents;

(d) The Reply filed by the third respondent and attached documents, and

(e) Application to Admit Late Documents dated 11 October 2013 filed upon behalf

of the second and third respondents.

12. The first respondent also sought to tender a surveillance DVD. This had not been served in

these proceedings and was alleged to have been served in prior proceedings. The applicant

objected to its tender on the basis of its non-service in these proceedings and also on the

basis of relevance. It was submitted that what it depicts would not go to the issues to be

determined by the Commission and under the Workers Compensation Rules 2011 (the Rules)

the DVD cannot be referred to an Approved Medical Specialist (AMS). (T8)

13. The second and third respondents also objected to its tender on the basis that it had not been

served on them and that they had not had an opportunity to see it, and that Rule 14.1 requires

the DVD to be served with the investigation report. The second and third respondents also

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objected to the surveillance report dated 17 September 2012 at page 70 of the first

respondent’s Reply. (T9)

14. The first respondent submitted the DVD had been served on the applicant in prior

proceedings and in its Reply in these proceedings the index lists the DVD as an item that the

first respondent sought to rely upon. It was also submitted that the first respondent’s

solicitors only recently found out that Sparke Helmore was acting for second and third

respondents. However this cannot be correct as in the Reply the first respondent’s solicitors’

state that they served their Reply on Sparke Helmore, furthermore Sparke Helmore

participated in the telephone conference on 11 March 2014.

15. The first respondent submitted that the relevance of the surveillance is that it goes to the

applicant’s credit, which has been put in issue. It was stated that the Commission will be

asked to make a determination whether or not the applicant’s condition was aggravated by

his subsequent periods of employment and to make such a determination the Commission

will have to decide if what the applicant says in his statement and other evidence before the

Commission can be accepted, and that there are “things that you might see in the DVD might

have a certain effect.” (T11)

16. Having considered these submissions I gave brief reasons as to why I ruled that the DVD

could not be admitted into evidence. I was concerned that if I was to accede to this

application it would delay the matter proceeding. Counsel for the Mr Attard had not seen the

DVD and it had never been served on the second and third respondents. Their counsel has

not seen it nor have I. I considered the matters discussed in Mateus v Zodune Pty Ltd t/as

Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 (Mateus) by Deputy

President Roche. Issues of case management, costs and an insurer complying with the

obligations imposed on it under the legislation and rules are relevant to consider in the

balancing exercise referred to in Mateus; and in this case there was the added issue regarding

relevance because the DVD was taken outside of the jurisdiction relating to employment

which cannot be the subject of my determination.

Oral Evidence

17. There was no oral evidence. The parties made oral submissions which were sound recorded

and a copy is available to the parties as is a written transcript (T).

Supplementary Submissions

18. On 28 May 2014 the counsel for the second and third respondents caused to be sent to the

Commission further brief submissions. Leave was sought to rely on further submissions as

follows:

(a) that if the Commission determines that there is aggravation of the disease

pursuant to section 16, the Commission has jurisdiction to determine that the

aggravation has ceased. The claim before the Commission is not limited to

section 66, but includes a claim for treatment expenses.

(b) In the event that the Commission determines the “flare ups” of the applicant’s

condition constitute an aggravation for the purposes of section 16 (which is not

conceded) then the whole of the evidence but particularly the opinion of

Dr Gillam points to any aggravation having ceased as soon as the applicant’s

ceases that employment.

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(c) The history to all of the doctors and the applicant’s statement that the level of

symptoms reverts to the same level that he had prior to employment with the

second and third respondents.

19. On 29 May 2014 the Commission received a letter from the first respondent’s solicitors

objecting to the further submissions noted above.

20. On 2 June 2014 I caused a Direction for Submissions to be issued to the parties requiring the

applicant to file and serve submissions in response those referred to above by 13 June 2014

and for the first respondent by 20 June 2014.

21. Not having heard further from the parties I requested that the Commission’s staff ascertain if

the parties were intending to file submissions in response. On 11 July 2014 the Commission

was advised by the applicant’s solicitor that he would not be making further submissions.

REASONS AND FINDINGS

Relevant legislative provisions

22. The Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) has

amended the 1987 Act. Section 4 in relation to the definition of “injury” was amended to add

to section 4(b) (i) and (ii) the requirement that the employment must be the “main

contributing factor” to the contraction of a disease or aggravation of a disease. The

amendments only apply to injuries received after 19 June 2012 (Schedule 6 Part 19H (20) of

the 1987 Act). So this amendment does not apply to the claim against the first respondent, as

date of alleged injury is 19 March 2012.

23. Therefore the definition of injury in section 4 relevant to the claim against the first

respondent is:

“In this Act:

“injury”

(a) means personal injury arising out of or in the course of employment,

(b) includes:

(i) a disease which is contracted by a worker in the course of employment and

to which the employment was a contributing factor, and

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease,

where the employment was a contributing factor to the aggravation,

acceleration, exacerbation or deterioration…”

24. The applicable version of Section 9A is:

“(1) No compensation is payable under this Act in respect of an injury unless the

employment concerned was a substantial contributing factor to the injury.

(2) The following are examples of matters to be taken into account for the purposes

of determining whether a worker’s employment was a substantial contributing

factor to an injury (but this subsection does not limit the kinds of matters that can

be taken into account for the purposes of such a determination):

(a) the time and place of the injury,

(b) the nature of the work performed and the particular tasks of that work,

(c) the duration of the employment,

(d) the probability that the injury or a similar injury would have happened

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anyway, at about the same time or at the same stage of the worker’s life, if he or

she had not been at work or had not worked in that employment,

(e) the worker’s state of health before the injury and the existence of any

hereditary risks,

(f) the worker’s lifestyle and his or her activities outside the workplace.

(3) A worker’s employment is not to be regarded as a substantial contributing factor

to a worker’s injury merely because of either or both of the following:

(a) the injury arose out of or in the course of, or arose both out of and in the

course of, the worker’s employment,

(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3,

need for medical or related treatment, hospital treatment, ambulance service or

workplace rehabilitation service as referred to in Division 3 of Part 3, or the

worker’s death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12

applies.”

25. Mr Attard’s claims against the second and third respondents because the date of injury,

3 May 2013, (based upon the date of the claim for lump sum compensation) postdates the

commencement of the relevant amendments. Therefore the relevant version of section 4 is as

follows:

“In this Act:

“injury”

(a) means personal injury arising out of or in the course of employment,

(b) includes a

"disease injury" , which means:

(i) a disease that is contracted by a worker in the course of employment but

only if the employment was the main contributing factor to contracting the

disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course

of employment of any disease, but only if the employment was the main

contributing factor to the aggravation, acceleration, exacerbation or

deterioration of the disease…”

26. The only amendment to section 9A is in sub-paragraph (1) and is as follows:

“No compensation is payable under this Act in respect of an injury (other than a

disease injury) unless the employment concerned was a substantial contributing factor

to the injury. Note: In the case of a disease injury, the worker’s employment must be the main contributing factor. See

section 4.

…”

27. Sections 15 and 16 are relevant to ascertain which employer is liable to pay compensation.

Those sections were not amended in 2012. Section 15 states:

“Diseases of gradual process-employer liable, date of injury etc

15 Diseases of gradual process-employer liable, date of injury etc

(cf former ss 7 (4), (4C), (5), 16 (1A))

(1) If an injury is a disease which is of such a nature as to be contracted by a gradual

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process:

(a) the injury shall, for the purposes of this Act, be deemed to have happened:

(i) at the time of the worker’s death or incapacity, or

(ii) if death or incapacity has not resulted from the injury-at the time the

worker makes a claim for compensation with respect to the injury, and

(b) compensation is payable by the employer who last employed the worker in

employment to the nature of which the disease was due.

(2) Any employers who, during the 12 months preceding a worker’s death or

incapacity or the date of the claim (as the case requires), employed the worker in any

employment to the nature of which the disease was due shall be liable to make to the

employer by whom compensation is payable such contributions as, in default of

agreement, may be determined by the Commission.

(2A) The Commission is to determine the contributions that a particular employer is

liable to make on the basis of the following formula, or on such other basis as the

Commission considers just and equitable in the special circumstances of the case:

"C" is the contribution to be calculated for the particular employer concerned.

"T" is the amount of compensation to which the employer is required to

contribute.

"A" is the total period of employment of the worker with the employer during

the 12 month period concerned, in employment to the nature of which the

injury was due.

"B" is the total period of employment of the worker with all employers during

the 12 month period concerned, in employment to the nature of which the

injury was due.

(3) Total or partial loss of sight which is of gradual onset shall for the purposes of

subsection (1) be deemed to be a disease and to be of such nature as to be contracted

by gradual process.

(4) In this section, a reference to an injury includes a reference to a permanent

impairment for which compensation is payable under Division 4 of Part 3.

(4A) In this section, a reference to employment to the nature of which a disease was

due includes a reference to employment the nature of which was a contributing factor

to the disease.

(5) This section does not apply to an injury to which section 17 applies.”

28. Section 16 states:

“Aggravation etc of diseases-employer liable, date of injury etc

(cf former ss 7 (4A), (5), 16 (1A))

(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration

of a disease:

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(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.

…”

29. The 2012 amendments also could affect the amount of compensation to which Mr Attard

may be entitled. If the second and third respondents have liability to pay lump sum

compensation the threshold under the amended version of section 66 is “greater than 10 per

cent” whole person impairment and because of the repeal of section 67 there would be no

entitlement for pain and suffering. However these amendments to sections 66 and 67 do not

apply to the claim against the first respondent as the claim for lump sum compensation was

made before 19 June 2012. This was conceded by the first respondent’s counsel.

Employment records from first respondent

30. Records in the first respondent’s Reply contain an Occupational Health Assessment on the

letterhead of “A Goninan & Co Limited”. At page 14 of the Reply the skin was noted to be

“N” which I infer means normal. At page 16 in answer to the question “any evidence of

previous occupational health problems?” “Skin rashes” is written. Under “recommendations”

“fit for placement. To avoid contact with chemicals”. This is dated 6 August 1997 and bears

the stamp from the Dellwood Medical Centre. On page 17 it was noted that Mr Attard was

suitable for all occupations likely to be available at Goninan but it again is noted “To avoid

contact (Skin) with chemicals.” I infer that this assessment was part of pre-employment

medical testing.

31. In the Medical Centre Attendance records it is noted on 16 July 1998 that Mr Attard had a

chemical spill to his neck when the gun wash splashed onto his neck. He was referred to a

Dr Overmeire at the Workers Health Centre and given a WorkCover certificate in relation to

skin irritation and was to avoid spray painting and solvent exposure. On 6 October 1999 he

had a rash on his back and shoulders and the cause of the same was unknown (page 21 of the

Reply).

32. Records in the first respondent’s Reply confirm that Mr Attard did complain, giving an

injury date of 28 January 2000, of dermatitis due to contact with gun wash, thinners and

other solvents when he worked in Team 10 Paint shop occurring “over a period of time”

(page 42 of Reply) and the corresponding Register of Injuries refers to the dermatitis being

on his right hand index finger (page 44 of the Reply). These documents are dated

15 March 2000.

33. In the Medical Centre Attendance records it is noted that Mr Attard attended on

14 March 2000 and advised them he had seen two doctors in the past; one diagnosing

eczema and the other dermatitis and he had been prescribed cortisone cream. Mr Attard

advised of his use of solvents. The Centre arranged for him to see Dr Kenny and it is noted

on 15 March 2000 he was issued with a WorkCover certificate for dermatitis to the right

index finger. His worksite was inspected and different gloves were ordered for him. On 16

August 2000 it is noted he still had dermatitis on is right hand and an appointment was made

for him at the Dellwood Medical Centre. On 1 December 2000 an appointment was made for

Mr Attard to see a skin specialist, Dr Alan Cooper.

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34. On 4 December 2000 the employer referred Mr Attard to Dr Alan Cooper, dermatologist,

because despite a change in his work environment the dermatitis had not improved (Reply

page 30). In report dated 22 December 2000 Dr Cooper advised that the problem was irritant

dermatitis as he was tested to standard allergens and in relation to his gloves and those tests

were negative (Reply page 31). In report dated 28 February 2001 Dr Cooper advised the

employer that Mr Attard needed to work where he was not exposed to contact with

chemicals and cleaning products (Reply page 34).

35. In the Medical Centre Attendance records it is recorded on 23 March 2001 that a discussion

was held about the transfer of Mr Attard to the team responsible for the assembly of bogies

because there he would have no contact with solvents or chemicals. On 3 April 2001 it is

noted he was supplied with QV wash and silica barrier cream and that although he had a

small area of dermatitis on his right hand he had had no further flare ups since being

transferred (Reply page 28). At page 46 of the reply is a copy of Mr Attard’s resignation and

a handwritten notation says it is effective from 4 May 2001.

Statement from Guy Lawrence

36. Mr Guy Lawrence works as the Safety Manager with the second respondent and in statement

dated 13 June 2013 confirms that Mr Attard worked for that respondent from 20 July 2011 to

27 November 2011 as a casual boilermaker. He notes in a pre-employment medical it was

recorded that Mr Attard suffered from dermatitis from soda ash 17 years earlier and that he

suffers from dermatitis intermittently. Mr Attard also declared he was allergic to some harsh

soap. Mr Lawrence describes Mr Attard’s duties and confirms he was not exposed to any

chemicals and he worked on steel works. It was noted that the furnace would have been

washed out one to two weeks before Mr Attard started and that workers wear long sleeve

shirts and gloves and so would not be exposed to any dust that settled.

37. Mr Lawrence noted that while Mr Attard worked there he did not report any health issues

and they have no record of any time off, skin irritation or any injury.

Statement from Stephen Craig

38. Mr Craig was Mr Attard’s supervisor at the second respondent. He confirms that Mr Attard

did not work with chemicals and his duties involved a dry process. He says Mr Attard was

always wearing gloves. He was told by Mr Attard that he had dermatitis but gained the

impression he had developed it elsewhere. He confirmed that Mr Attard did not seek any

special provisions or make complaints about his dermatitis.

Statements from Daniel Attard

39. Mr Attard has provided two statements dated 13 October 2012 and 3 December 2012. I have

recited his employment history under the background noted above. In his first statement

Mr Attard describes being employed by the respondent as a boilermaker /welder but

describes his duties in the paint shop of the respondent as that of a spray painter.

40. He says he was prescribed steroid cream for his hands and this enabled him to get 20 tubes

of cream and so he said he then did not need to seek treatment regularly as he would use this

cream if he suffered a particularly bad flare up of dermatitis.

41. He also states that he worked from 1987 to 1993 at Dacus Engineering Pty Ltd, and while

there he experienced a rash on his back after wearing overalls that had traces of a toxic

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chemical on them. He said when he stopped wearing the overalls the rash cleared up. He said

he never suffered from dermatitis prior to working in the paint shop for the first respondent.

42. In his second statement he confirms that since he left the first respondent he has not worked

in any form of employment that has required him to come into contact with gun wash or any

other chemical substances.

43. He states since his employment with the first respondent he continues to suffer from

dermatitis that temporarily flares up if he wears welding gloves or does household tasks.

Medical evidence

Dr Lobel

44. Mr Attard relies upon a medico-legal report from Dr Lobel dated 6 December 2011. The

doctor took a history from Mr Attard that he attributed his dermatitis to the gun wash, which

was used to clean the spray painting equipment. It is noted that Mr Attard said he wore

chemical-proof gloves while in contact with the gun wash but that it rapidly dissolved the

gloves so that the skin on his hands came in prolonged contact with the gun wash solution.

The dermatitis has at all times been confined to the dorsal surface of his hands. The doctor

also took the history that since this time Mr Attard’s dermatitis has been constantly present,

although fluctuating in intensity; and that it can be aggravated when in contact with raw

food, after hand washing and in heat and cold conditions.

45. Dr Lobel noted the further history that before the exposure to the gun wash Mr Attard did

not experience dermatitis and there was no family history of the same or of other skin

disease.

46. On examination the doctor found clinical features of chronic dermatitis affecting the dorsal

surfaces of all five fingers on both hands with extension into most of the interdigital

surfaces, and a patch on the right wrist. Dr Lobel examined the rest of his skin and found it

to be normal.

47. Dr Lobel diagnosed chronic dermatitis of the hands and stated that the history of contact

with the gun wash was consistent with the evident distribution on his hands and fingers. He

concluded that the initial trigger was the gun wash. Dr Lobel states that it is uncommon but a

well documented phenomenon whereby a contact dermatitis can continue even after the

withdrawal of the offending contactant.

48. Dr Lobel noted the treatment given to Mr Attard by his general practitioner, Dr Janet Druitt-

Smith, of Diprosone OV ointment. Dr Lobel expresses the opinion that Mr Attard’s exposure

to the gun wash, while working as a spray painter for the first respondent, was “a substantial

contributing factor, if not the entire cause of the current dermatitis of his hands.”

49. Dr Lobel assessed Mr Attard’s permanent impairment at 16 per cent whole person

impairment in report dated 6 March 2012. In supplementary report dated 5 December 2012

he states he has read Mr Attard’s statement and assuming his history is accurate then he

expresses the view that none of the employment post the year 2000 would have aggravated

his dermatitis and he maintains the diagnosis of post contact chronic dermatitis (persistent

post occupational dermatitis).

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Dr Drewitt-Smith

50. Some clinical notes from Dr Drewitt-Smith’s practice are contained in the Application. On

19 September 2011 (in the time Mr Attard worked for the second respondent) Mr Attard

attended on the doctor and gave a history of the exposure to gun wash and then for 12 years

he was in sales and marketing and it is noted that he was “now back into boiler maker

welding- gloves are aggravating him again- contact with – fly ash?- gloves on for 12 hrs.”

On examination she diagnosed infected eczema. On the same date the doctor wrote a referral

to a Dr Elizabeth Willsteed, with the same history.

Dr Freeman

51. Dr Freeman examined Mr Attard for the first respondent and has provided reports dated

3 August 2012 and 10 August 2012. Dr Freeman noted she was referred the A Goninan &

Co pre- employment medical assessment dated 2 September 1993 “noting, at page 6, skin

irritation, dermatitis, eczema.” However on page 3 of Dr Freeman’s report she states, “this

does not specify the site of the involvement. In particular there is no evidence of

involvement of the hands in the past.” It is also noted that Dr Allan Cooper, dermatologist,

carried out patch testing in the year 2000 but the tests were negative, ruling out an allergic

contact dermatitis.

52. Dr Freeman found that Mr Attard that he developed an irritant form of contact dermatitis in

the year 2000 when he was exposed in the paint shop to contact with solvents and thinners,

which she says are known skin irritants. She had the history that since then exposure to heat

and substances such as food cause his hands to flare. Dr Freeman says after the development

of irritant contact dermatitis a “self-perpetuating problem can occur and the dermatitis flares

with minor skin irritants.” Dr Freeman gives the opinion that his condition is a “disease

contacted by a worker in the course of his employment where the employment was a

contributing factor to the disease.” In the second report the doctor said that although the

employment with the first respondent was a substantial contributing factor each of the

subsequent employments including the last one with Scott & Ensoll would have contributed

substantially to his continually relapsing hand dermatitis.

53. Dr Freeman expresses the view that under section 16 Scott & Ensoll is probably liable.

However I note this employment is out of the jurisdiction, in Queensland.

54. Dr Freeman concludes her second report by answering a question apparently posed to her as

to whether Mr Attard’s dermatitis was significant on his exit from the first respondent’s

employ. She answered “even though there was only 1 small area of dermatitis on the right

hand, this was significant in terms of the known pattern of this disease which is known to

flare easily even when small amounts of dermatitis remain.”

Dr Delores Gillam

55. Dr Gillam, dermatologist, provided a report for the second respondent’s insurer dated

20 June 2013. Dr Gillam has a similar history to the other doctors but states that when

Mr Attard left the second respondent’s employ his dermatitis “settled back to its usual

chronic state.” The doctor considered that the exposure in 2000 was the substantial

contributing factor to the commencement and recurring episodes of dermatitis in both hands.

She said work with the second respondent was only a temporary aggravation.

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Applicant’s submissions

56. Mr Attard submitted that there is no evidence that he suffered a pre-existing dermatological

condition affecting his hands before his employment with the first respondent. It was

submitted that there is clear evidence that he was exposed to gun wash when working in the

spray painting work for the first respondent, this was over a period of time and led to

notification of symptoms to the first respondent and treatment by a specialist, Dr Cooper.

57. It was further submitted that Mr Attard’s own evidence in his statements have been

consistent with the available records and that he has been frank in advised that sometimes his

symptoms flare up. An example of such a flare up was the attendance on Dr Drewitt-Smith

on 19 September 2011. It was stated this is the only evidence of treatment subsequent to the

employment with the first respondent. Counsel stated that it was significant that Mr Attard

stated that such flare-ups were only temporary and that there is no evidence that such flare

ups resulted in incapacity.

58. Against this background Mr Attard submits that the opinion of Dr Lobel should be accepted

as well as that of Dr Gillam. Counsel submitted that such flare-ups have not materially

increased or changed Mr Attard’s condition. It was submitted there should be a finding

against the first respondent only.

59. Counsel submits that Dr Freeman’s history is wrong in that she bases her opinion on an

understanding that Mr Attard’s condition in his hands “immediately worsened” in 2010/

2011 when he returned to boilermaking. Counsel submits this is not correct factually.

First respondent’s submission

60. The first respondent does not agree that Dr Freeman has an incorrect history. It relies upon

the notes of Dr Drewitt-Smith and her referral dated 19 September 2011:

“He is back in his welding industry, in gloves for 12 hours a day and now has

exacerbation of dermatitis. Initially gun wash worried him. Now not around this.”

61. It was submitted that it is very significant that in the period from 2001 to 2011 that

Mr Attard sought no treatment for his hands and it was further submitted that it is significant

that after he started with the second respondent he did seek treatment for his hands. It was

submitted that it was evident from the clinical notes that Mr Attard had attended this doctor

on 11 and 17 August 2009, at a time when he was not working as a boilermaker, and made

no mention of his hands. It was also noted in visits in 2011 before he started with the second

respondent there was also no mention of his hands. It was submitted that as he started with

the second respondent in August 2011 something must have happened there for him to

attend Dr Drewitt-Smith on 19 September 2011 complaining about his hands and needing to

be referred to a specialist.

62. It was further submitted that Mr Attard’s statements do not make any mention of him having

to go and see his doctor, or seeing a specialist and he makes very light of any flare up of his

condition, particularly in his subsequent employment.

63. Therefore it was submitted that the Commission should accept Dr Freeman's opinion, as it

was based on contemporaneous material and a correct history.

64. The first respondent also drew attention to the pre-employment medical assessment to

submit that Mr Attard “clearly had some problem with his skin before he had started with the

14

respondent.” I do not accept that the evidence extends to a level to make this conclusion

“clear”. I find it is plausible that Mr Attard’s explanation that he had a rash on his back

previously could account for this history and, indeed, this point was made by the first

respondent’s Dr Freeman.

65. The first respondent relies upon Dr Freeman’s opinion that, "Each of the subsequent

employments, including the last one with Scott & Ensoll, would have contributed

substantially to his continually relapsing hand dermatitis."

66. The first respondent submitted that this satisfies the test both for section 15 as well as for

section 16. It was submitted that Mr Attard suffers a disease of gradual onset due to

boilermaker work so all of the employment that the applicant has had with the various

boilermaking concerns are contributory employment and compensation is payable by the

employer who last employed Mr Attard in employment to the nature of which the disease

was due. It was submitted that as the second and third respondents also employed the

applicant in boilermaking/welding type work, then that is employment to the nature of which

the injury was due and it just has to be employment of the same nature, but it also is

causative of a flare up.

67. It was submitted that it was causative of a sufficient flare up for the applicant not only to see

his doctor, but also then to be referred to a specialist and so falling within section 16

aggravation of a disease. It was further submitted that Dr Freeman and Dr Drewitt-Smith

supports the proposition that, the applicant has suffered an aggravation of his condition, once

he goes back and starts doing the same sort of boilermaking/welding work that he had done

with the first respondent.

68. Therefore it was put that the first respondent is not the last relevant employer.

69. It was submitted that Dr Lobel does not have an appropriate history because he does not

have the history of a flare up in September 2011, being a sufficient flare up having recently

commenced employment in similar employment of a similar nature to what he was doing

previously and a significant enough flare up to go and see his doctor and to be referred to a

specialist. So it was argued that Dr Lobel's report and his opinion should be given far less

weight than Dr Freeman's. It was acknowledged that Dr Lobel was provided with

Mr Attard’s statement and expressed the opinion:

"Assuming Mr Attard's statement is accurate, none of the work he carried out for

various employers since the year 2000, would have aggravated his dermatitis."

70. However it was submitted that the applicant's statement is not accurate it does not refer to

the flare up in September 2011, necessitating him to go and see his doctor.

71. Reference was made to Dr Gillam's report and it was submitted that she accepts that there

was an aggravation of the applicant's condition in the period that he was employed by the

second respondent. It was also submitted that Dr Gillam’s conclusion that Mr Attard’s

dermatitis had not improved over 12 years is not consistent with the fact as there are no

medical records demonstrating any complaints over the preceding 11 or 12 years, until the

applicant commences employment in the boilermaking trade again. So the first respondent

submits that Dr Freeman’s opinion should also be preferred to that of Dr Gillam.

15

Second and third respondents’ submissions

72. Counsel referred to the first respondent’s submission that Mr Attard returned to work with

the second and third respondents and that the work was the same as in the employment with

the first respondent. It was stated that in fact the evidence is to the contrary, that the work

was significantly different because only in the employ of the first respondent was Mr Attard

exposed to a chemical colloquially called gun wash. Passages from Mr Attard’s statements

were quoted from extensively and it was asserted that the medical evidence supports that it

was the gun wash that that was the contact irritant that initiated this disease process in the

applicant's hands.

73. Furthermore it was noted that Mr Attard gave evidence in paragraph 28, "I feel my

dermatitis has stabilised and regardless of my subsequent employment, my dermatitis

remains the same."

74. It was submitted that the first respondent’s submission should not be accepted about the

interpretation regarding the absence of medical evidence in the period from 2001 to 2011

dealing with complaints about his hands, and the coinciding of complaint on 19 September

2011 with work at the second respondent as a boilermaker. The reason for this assertion was

that on 19 September 2011 Mr Attard was found to have “infected dermatitis.” It was argued

that he had given a history that he scratches at night which causes there to be blood on his

sheets. It was submitted that it is more likely to be why the dermatitis has become infected,

rather than anything in the employ of either the second of third respondents.

75. Furthermore it was noted that Mr Attard’s evidence is consistent with his history to all of the

doctors that since leaving the first respondent, he has continued to have problems with

dermatitis in both hands, which has flared up with various day to day activities, but

essentially he has the same problem with his hands as he had in 2000.

76. Counsel relied upon the opinions of Dr Lobel as follows:

" a) In my opinion, the nature and conditions of Mr Attard's employment in the spray

paint department of Maintrain Pty Ltd is a substantial contributing factor to his

current medical condition, chronic contact dermatitis and consequent incapacity.

b) “I have been asked to advise whether, in my opinion, the employment

subsequent to ceasing work with United Rail has contributed to the permanent

impairment. Assuming Mr Attard's statement is accurate, none of the work he

carried out for various employers since the year 2000 would have aggravated his

dermatitis and therefore the diagnosis continues to be post contact chronic

dermatitis, persistent post occupational dermatitis. This post contact chronic

dermatitis was triggered by repeated contact with solvent substances known as

Gunwash, during the course of his employment between 1993 and 2000."

77. In relation to Dr Freeman counsel made a similar submission to that of Mr Attard’s counsel

that she did not have the correct history. It was stated that she expressed that Dr Freeman

said “In 2010-2011, he returned to the trade of boilermaking, but his hands immediately

worsened." However counsel submitted that there is nothing in the medical evidence to say

that it immediately worsened. Counsel drew attention to Dr Freeman’s finding that:

“I believe that his condition has been medically stable for the past three months,

however, it is likely to change and worsen considerably with flare ups. However, this

16

has been recurrent pattern over the 12 years and so I believe this pattern is a medical

stable one."

78. Counsel submitted in other words, there has been no advancement of the pathology in the

applicant's hands that would inculpate either the second or the third respondent on that basis.

Further that there are everyday things that flare up the dermatitis in Mr Attard’s hands and

there is nothing in anything that the applicant did with the second or third respondents that

contributes to the pathology or to make the condition worse.

79. So it was submitted that the Commission would not be satisfied that even pursuant to section

16 the second and third respondents are liable to pay compensation.

80. It was noted that Dr Gillam had the same history that the condition never settled and flared

with contact of many things, for example, touching raw foods, heat, cold, and rubber gloves.

Dr Gillam diagnoses chronic contact dermatitis and that his condition has not improved over

12 years.

81. It was submitted that Mr Attard’s evidence about the lack of use of chemicals after he left

the first respondent is borne out by the witness statements of Guy Lawrence and Stephen

Craig.

82. Counsel submitted the most recent case that is relevant in respect of this matter is

McDonald v MW & JM Riddiford [2014] NSWWCCPD 27 (McDonald) which refers to the

authority of Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White

(Constructions) Pty Ltd (1995) 12 NSWCCR 365 (Grate Lace).

83. It was argued that Grate Lace can be distinguished from the Mr Attard’s case because Grate

Lace is authority to say where there is incapacity flowing then the last employer is liable.

But in Grate Lace, the applicant had returned to exactly the same sort of work that he had

been doing with a later employer and so the later employer, in the circumstances, was liable.

Counsel submitted it was significant and a point of difference that Mr Attard did not return

to work with gun wash, chemicals or solvents.

84. Counsel submitted that Veolia Environmental Services Pty Ltd v Gwynne [2014]

NSWWCCPD 10 (Gwynne) is of most assistance and referred to [86] and then [86] where

His Honour Judge Keating, President, refers to the following decisions:

(a) Tame v Commonwealth Collieries Pty Ltd [1947] NSWStRp 9; (1947) 47 SR

(NSW) 269 where 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."

(b) Gleeson CJ in CIC Workers Compensation (NSW) Ltd v Alcan Australia Ltd

(1994) 35 NSWLR 169:

"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 by Keating P)

17

85. Counsel submitted that is crucially important in this case, because even though Mr Attard

was employed under a similar job title, he was certainly not doing any work that involved

contact with gun wash. It was noted that in Gwynne the President states at [105]:

"Mr Underwood conceded… 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."

86. And in Gwynne it was found at [114] that the applicant’s work with the subsequent employer

was not employment to the nature of which the condition is due. At [129] in that case the

President stated referring to Semlitch [363]:

"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."

87. Counsel therefore submitted that the history provided to the doctors such as in Dr Gillam's

report about the applicant's incapacity, is that while he was employed with the first

respondent he contracted the dermatitis and he was put on suitable duties because he was

unable to work in that environment any longer. It was submitted that is from where the

incapacity flows and that there is no evidence or satisfactory evidence that any aggravation

has occurred with the second and third respondents that has caused any incapacity.

88. It was further submitted that the President in Gwynne goes on to say at [130]:

"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."

89. Counsel said the incapacity from which Mr Attard suffers is that he cannot work with

contact irritants and ever since 2000 and that is what is preventing him from working as a

welder, with gloves on. He has a problem with the heat affecting his hands due to the

dermatitis, which has been a problem since 2000 and is not an aggravation causing any

incapacity with the second or third respondents.

90. Counsel also drew attention to the President’s reference at [131] in Gwynne to Federal

Broom Co Pty Ltd v Semlitch [1964] HCA 34;(1964) 110 CLR 626 (Semlitch), "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.’" It was submitted that in Mr Attard’s

case there is a flare up in symptoms, the condition itself has not, on any of the evidence,

worsened since employment with the second and third respondent, on an ongoing basis.

91. It was argued that this is analogous to the facts in Gwynne where the President found at

[133]:

"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."

18

92. Counsel also referred to [139] of Gwynne where the President referred Commonwealth v

Muratore [1978] HCA 47; (1978) 141 CLR 296, where 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". So the President

found in Gwynne that if there had been an aggravation for which Beroa was liable, it did not

sound in any economic incapacity because the limitations on Mr Gwynne’s capacity for

work as a refractory bricklayer did not alter as a result of the alleged aggravation. Counsel

drew a parallel with Mr Attard’s situation.

93. Finally the second and third respondents’ counsel submitted if her clients were found liable

because of the 2012 amendments it would be necessary to consider whether under section

4(b)(ii) of the 1987 Act the employment with them has been the main contributing factor to

the aggravation, acceleration or deterioration or exacerbation of the disease. It was submitted

that no such finding should be made by the Commission on the evidence. In the alternative it

was submitted that if the second and third respondents were liable then as the claims against

them were made after 19 June 2012 there would be no entitlement to compensation for pain

and suffering due to the repeal of section 67 of the 1987 Act. It was also submitted that the

appropriate assessment would be the for whole person impairment assessment, rather than

the Table of Disabilities, relying on Saad Bros Motor Pty Ltd v Simon [2014] NSWWCCPD

22 (Saad Bros)

First respondent’s submissions in reply

94. The first respondent made further submissions in reply that incapacity in respect of section

15 was discussed by Roche DP in a matter of Inghams Enterprises Pty Ltd v Thoroughgood

[2013] NSWWCCPD 29 where he held that:

"Incapacity means that giving rise to an entitlement to weekly compensation. As no

claim for weekly compensation was made, the deemed date of incapacity would be the

date of the claim."

95. It was submitted that is the situation in Mr Attard’s case as there is no weekly compensation

claim and this was consistent with Stone v Stannard Brothers Launch Services Pty Ltd

[2004] NSWCA 277; 1 DDCR 701 (Stone) and in Alto Ford Pty Ltd v Antaw [1999]

NSWCA 234; 18 NSWCCR 246 (Antaw), that it has to be relevant incapacity. Relevant

incapacity is where a claim for incapacity is being made at the time. There is no claim for

incapacity here. The date of injury must be the date when the claim is made.

96. It was also submitted that employment does not have to be the exact employment for the

purposes of section 15 and counsel referred to Gwynne where the President stated:

"In Grate Lace, Kirby P (as his Honour then was) held that the reference in s15(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."

97. Counsel submitted that the point is that Mr Attard clearly talks about returning to his trade

and Dr Freeman clearly talks about him returning to his trade. His trade was

boilermaking/welding and it was submitted that it is not the various incidents of that

employment that you must go to, it is the job as a whole that you look at and the risk of the

injury perpetuating itself or aggravating itself. And that is precisely the same risk where as

soon as he goes and starts working for the second respondent, his dermatitis flares up to such

an extent that he sees his doctor whereas for the preceding 10 or 12 years, he did not need to.

19

98. Therefore it was submitted that the employment with the second, third and his current

employment, is employment to the nature of which the injury is due. But then counsel

acknowledged that the current employment could not be taken into account because it took

place outside of NSW. Counsel concluded her submissions by stating that it is “not only the

contact with the gun wash, it is also the wearing of the gloves and the exposure to the heat,

which is precisely what is happening in the employment with Power Project and thereafter.”

Applicant’s submission in reply

99. Counsel said it was important that Dr Freeman concluded that there was no evidence that

Mr Attard had any pre-existing condition affecting his hands and his disclosure in the

pre-employment medical assessment conducted by the first respondent is consistent with

Mr Attard’s history of having a rash on his back due to an irritant in his overalls. His counsel

says that therefore a finding against the first respondent should be made under section 15

because there was no prior condition that was aggravated with the first respondent.

Supplementary submissions

100. As noted above after the arbitration hearing the second and third respondents sought to make

supplementary submissions. The first respondent argued that leave should not be given for

them to do so and neither the first respondent nor Mr Attard made any submissions in reply

despite being given the opportunity to do so. Given my findings below it is not necessary

that I deal further with these submissions.

Determination

Factual findings

101. The following factual findings are appropriate in this matter on the available evidence and

I so find:

(a) That prior to Mr Attard’s employment with the first respondent he did not suffer

from dermatitis to his hands. The reason for me so concluding is that there is no

evidence that the skin rash to which he refers on his pre-employment medical

assessment involved his hands. Mr Attard has explained that he had a rash on his

back and I find his evidence should be accepted in this regard. Furthermore the

first respondent’s medial expert, Dr Freeman, has examined the records from the

first respondent and also concludes that there is no evidence of a pre-existing

condition.

(b) That it was the repeated exposure to gun wash, solvents and thinners when

Mr Attard was employed by the first respondent that caused him to develop the

dermatitis to his hands. This finding is consistent with all of the medical

evidence. Dr Lobel, in particular, describes the gun wash as a potent solvent and

potent skin irritant. Dr Lobel takes a detailed history of the work in the paint

shop and that the spray guns needed to be thoroughly cleaned once or twice per

week by placing them in a bin of gun wash for one to two days and that six

months after this work the rash on Mr Attard’s hands appeared and became

chronic.

(c) That the exposure to the gun wash, solvents and thinners did not occur when

Mr Attard was working as a boilermaker/welder for the first respondent but

20

when he was assigned to work in the Team 10 Paint Shop for the first

respondent. The records of the first respondent at pages 42 and 45 of its Reply

confirm this was the location of his work duties and Mr Attard in his statement

dated 13 October 2012, paragraph 4, gives evidence that his duties at the time

were as a spray painter. The first respondent has not called any evidence to

dispute that this was the nature of his duties and in the referral to Dr Cooper

dated 4 December 2000 (page 30 of its Reply) the first respondent informed the

doctor “at the onset of dermatitis Mr Attard was working with various types of

paints.”

(d) That after Mr Attard left the employment of the first respondent he was not

exposed to gun wash or other chemical substances. Mr Lawrence and Mr Craig

have given evidence for the second respondent that the work there did not

involve exposure to chemicals. Mr Attard has also given evidence that none of

his subsequent employment after that of the first respondent has involved

chemicals; paragraph 4 of his statement dated 3 December 2012. I find this

evidence is compelling and it has not been contradicted by the first respondent.

(e) That his work duties as a boilermaker/welder with the first respondent did not

cause the dermatitis. Dr Cooper in report dated 4 December 2000 noted that

Mr Attard “has been a boilermaker for eleven years and for the past two years

has been working in the paint shop. For the past twelve months he has been

having problems with dermatitis on his hands.”

(f) That, having contracted dermatitis while working for the first respondent, the

condition persisted. This finding is supported by Mr Attard’s statement in

paragraph 23 of his statement dated 3 December 2012, which I accept as it is

consistent with the histories he has given to all of the doctors. It is also consistent

with the medical opinions that his dermatitis is a chronic condition and Dr Lobel

says it has persisted despite no further contact with the irritant, gun wash.

(g) That the persisting dermatitis condition was subject to flare ups when he was

involved in various activities such as handling raw meat and when exposed to

heat when boilermaking and wearing boilermaker gloves. Mr Attard gives this

evidence in his statements and to the doctors and I accept that this was the

situation despite him not seeking medical treatment for his hands in the period

from 2001 to 2011. I accept his evidence that he used the ointment he had

obtained when working for the first respondent in this time.

102. The first respondent argued that the attendance on 19 September 2011 on Dr Drewitt-Smith

demonstrates that it was the boilermaking work that caused or aggravated Mr Attard’s

dermatitis because this onset coincided with his return to work in boilermaker duties. I do

not accept this submission for several reasons:

(a) Firstly as I have found above the overwhelming and indeed only evidence is that

the dermatitis was caused by the exposure to gun wash. Mr Attard had worked as

a boilermaker beforehand and had not developed dermatitis. When Mr Attard

was exposed to gun wash he was not working as a boilermaker/welder but as a

spray-painter.

(b) Secondly he had worked as a boilermaker/welder from April 2011 according to

his statement and it was not until 19 September 2011 that he attended

Dr Drewitt-Smith so I find it cannot be concluded that it was the work of a

21

boilermaker/welder per se that caused or aggravated his dermatitis because it did

not start up or flare up immediately upon the resumption of such duties.

(c) Thirdly in the intervening period from when he left the first respondent to

19 September 2011 I have accepted Mr Attard’s evidence that his dermatitis was

constantly present.

(d) Finally I note the submission of the second and third respondents that another

explanation for the attendance on 19 September 2011 was that the doctor found

he had “infected eczema” and it was argued that the necessity for the attendance

was due to the “infected” state and that this could be attributable to him

scratching. This is a possible scenario, although I have not based my decision on

this argument because Mr Attard does not deal with this attendance in his

statements and so such a submission really is no more than a hypothesis.

Section 4(b)(i)

103. Obviously every case is decided upon its own particular facts. The recent Presidential

decisions of the Commission of McDonald and State Cover Mutual Ltd v Cameron [2014]

NSWWCCPD 49 deal with “disease” injuries and confirm that the principles in Grate Lace

are still appropriate, those cases also illustrate the importance of precisely identifying the

relevant facts. It follows from my findings above that Mr Attard has established that he

sustained an injury under section 4 (b)(i) of the 1987 Act, that his dermatitis condition is a

disease which he contracted in the course of employment with the first respondent and to

which his employment there as a spray painter was a contributing factor.

Application of sections 15 and /or 16

104. The first respondent has submitted that because of the operation of sections 15 and/ or 16 the

second and third respondents are liable to pay compensation to Mr Attard because they are

the last employers. It was submitted that Mr Attard suffers a disease of gradual onset due to

boilermaker work so all of the employment that the applicant has had with the various

boilermaking concerns are contributory employment and compensation is payable by the

employer who last employed Mr Attard in employment to the nature of which the disease

was due. However I have found that Mr Attard did not suffer dermatitis due to his

“boilermaker work” but due to his work as a spray painter.

105. All of the respondents’ counsel referred to the case of Grate Lace. In Grate Lace the worker,

a Mr Hollier, was employed as a bricklayer when he contracted dermatitis from exposure to

Dycromate which is found in cement. Kirby P (as he then was) stated that section 15 of the

1987 Act was introduced by Parliament to avoid litigation regarding issues of causation. So

as he said “a semi-arbitrary formula” was enacted to affix the liability to pay compensation

in the cases of diseases caused by a gradual process. Kirby P makes reference to the phrase

in section 15 “to the nature to which the disease was due” and said “it is simply designed to

excuse a completely irrelevant employment, e.g. a bricklayer temporarily working in a florist

shop where there is no exposure to an allergen such as Dycromate…” In the matter of Grate

Lace the worker sustained his injury while working as a bricklayer and it was held that the

other employers, including the last being Theiss, also involved him working as in the

“bricklaying industry in whose employ the worker was exposed to the allergen which, once

again, triggered off his dermatitis.”

106. The submissions of second and third respondents do not dispute these principles but assert

that the factual scenario in Grate Lace is different to that in Mr Attard’s case precisely

22

because in Mr Attard’s case he developed dermatitis when working as a spray painter and his

subsequent employment was not as a spray painter. Furthermore in his subsequent

employment as a boilermaker he was not exposed to gun wash or any chemicals such as he

was when he was a spray painter. So by way of analogy the subsequent employment is

equivalent to Justice Kirby’s florist shop; that it was not employment to the nature of which

the disease is due. I accept this submission because it accords with the factual findings I have

made.

107. Section 15 of the 1987 Act operates in a disease injury case to identify which employer is

liable to pay the compensation. It follows from my reasons expressed above that I find the

last employer who employed Mr Attard in employment to the nature of which the disease is

due is the first respondent.

Application of Section 9A

108. The medical evidence is overwhelming that Mr Attard’s employment with the first

respondent as a spray painter was a substantial contributing factor to his injury. Dr Lobel

expresses the opinion that contact on his fingers of the potent skin irritant for a prolonged

period once or twice a week over a six month period was “a substantial contributing factor, if

not the entire cause of the current dermatitis of his hands.”

109. Section 9A sets out a list of matter to consider, which is not exhaustive. I find the facts in

this matter obviously lead to the conclusion reached by Dr Lobel. The time and place of the

injury, the nature of the work performed and the particular tasks of that work and the

duration of the employment are referred to above. I find it is not probable that the injury or a

similar injury would have happened anyway, at about the same time or at the same stage of

Mr Attard’s life, if he had not been at work or had not worked in that employment because

there is no evidence that he would have been exposed to gun wash or other solvents

elsewhere. I have considered his prior state of health and found there is no evidence that he

suffered from dermatitis previously. He had no family history of such a condition.

110. I therefore find pursuant to section 9A of the 1987 Act the applicant’s employment with the

first respondent was a substantial contributing factor to his injury.

Injury under section 4(b)(ii)

111. The first respondent also seemed to argue that the employment with the second and third

respondents caused an aggravation of his dermatitis because on 19 September 2011 his flare

up was associated with him wearing boilermaker’s gloves and being exposed to the heat of

that job.

112. However I accept the submissions of the second and third respondents that any flare ups

suffered by Mr Attard when he was working for them did not cause the dermatitis and did

not aggravate his condition such as to come within the definition of injury in section 4 (b)(ii)

of the 1987 Act, as amended. Mr Attard says in his statement dated 3 December 2012 that he

suffers from flare ups when wearing welding gloves. But he says such flare ups are only

temporary.

113. Section 4(b)(ii) of the 1987 Act, as amended, requires in relation to a "disease injury" two

factors; that there be the aggravation, acceleration, exacerbation or deterioration in the

course of employment of any disease and now for the employment to be the “main

contributing factor” to the aggravation, acceleration, exacerbation or deterioration of the

disease.

23

114. The question as to what constitutes “aggravation, acceleration, exacerbation or deterioration”

is dealt with in Semlitch. In Austin v Director General of Education (1994) 10 NSWCCR

373 (Austin) Clarke JA, applying Semlitch, said a judge, faced with the potential application

of the ‘disease’ provisions, should ask the following questions:

“ (a) Was the applicant suffering from a disease?

(b) If so, was there an aggravation, acceleration, exacerbation or deterioration of it?

(c) If so, was her (his) employment a contributing factor?

(d) If so, did a total or partial incapacity for work result from such aggravation,

acceleration, exacerbation or deterioration?”

115. Deputy President Roche in Duncan v Roads & Traffic Authority of NSW and Anor [2007]

NSWWCCPD 113 (Duncan) applied this test as an “appropriate starting point” [93].

116. Since the 2012 amendments the above references to “a contributing factor” would be

replaced with a consideration of “main contributing factor”.

117. If these questions are determined in the affirmative, then an injury exists under section

4(b)(ii) of the 1987 Act.

118. I have found that Mr Attard suffered from an injury in the course of employment with the

first respondent that was a disease. So the question is: was there an aggravation, acceleration,

exacerbation or deterioration of that disease? As Roche DP found in Duncan:

“Assistance is to be gained from the judgment of Burke J in Cant, in particular a

passage where his Honour applied the judgment of Windeyer J in Federal Broom:

“Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964)

110 CLR 626 at 639 posed the essential question of whether there has been a

relevant aggravation, acceleration, exacerbation or deterioration of a disease as:

‘The question that each poses is, it seems to me, whether the disease has been

made worse in the sense of more grave, more grievous or more serious in its

effects upon the patient.’

His Honour had previously commented (at 637):

‘I therefore find it impossible to conceive of the malady as distinct from its

manifestations.’

The thrust of these comments is that irrespective of whether the pathology has been

accelerated there is a relevant aggravation or exacerbation of the disease if the

symptoms and restrictions emanating from it have increased and become more serious

to the injured worker.” (at [17])”

119. In Mr Attard’s case I am not satisfied that that he has suffered an aggravation of his disease,

and therefore a second injury, because it has not been established that the symptoms and

restrictions emanating from his dermatitis have increased or become more severe. I accept

the submission of the second and third respondents that as a result of contracting dermatitis

Mr Attard is prone to flare ups with day to day activities such as handling meat and if he

wears boilermaker’s gloves and is exposed to heat from such work; but I find that this does

not equate to his condition becoming more severe. This has been his situation from the

outset of contracting his disease.

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120. I reject the submission of the first respondent that because Mr Attard talks about returning to

his trade and Dr Freeman clearly talks about him returning to his trade, and his trade was

boilermaking/ welding, this is determinative. I find that Dr Freeman has overlooked when

referring to the same that Mr Attard’s dermatitis was contracted when he was working as a

spray painter. I also do not accept Dr Freeman’s opinion regarding liability of the subsequent

employers because she says that his dermatitis relapses with the slightest form of irritant

contact such as the wearing of leather gloves for welding and that dermatitis is known to

flare easily even when small amounts of dermatitis remains yet she does not find that the

subsequent work made the condition “worse”.

121. I do not accept the submission by the first respondent that Dr Lobel’s opinion should be

rejected on the basis of an inadequate history because he did not have a history of the flare

up in September 2011. Dr Lobel does seem aware of this flare up because in his report dated

6 December 2011 he says there was a flare up when Mr Attard attempted to return to work as

a boilermaker at the Eraring Power Station. Both statements of Mr Attard refer to his work

with the second respondent as involving “work on site at a large power plant.” It is a

reasonable inference that this is the same power plant as referred to by Dr Lobel as there is

no evidence that Mr Attard worked at another power plant. While it is the case that Dr Lobel

does not refer to the attendance at Dr Drewitt-Smith on 19 September 2011, Dr Lobel was

aware that Mr Attard was being treated by that doctor for his dermatitis. Furthermore Dr

Lobel was referred Mr Attard’s supplementary statement where he has set out the relevant

facts about his employment, such as that he worked in 2011 as a boilermaker and had flare

ups with the heat and gloves. But Dr Lobel expresses the opinion that none of this

subsequent employment would have aggravated Mr Attard’s dermatitis.

122. In Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (Makita)

Heydon JA said at 731-32:

“The basal principle is that what an expert gives is an opinion based on facts. Because

of that, the expert must either prove by admissible means the facts on which the

opinion is based, or state explicitly the assumptions as to fact on which the opinion is

based. If other admissible evidence establishes that the matters assumed are

‘sufficiently like’ the matters established ‘to render the opinion of the expert of any

value’, even though they may not correspond ‘with complete precision’, the opinion

will be admissible and material: see generally Paric v John Holland Constructions Pty

Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd

[1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved

must correlate to some degree with those assumed is that the expert’s conclusion must

have some rational relationship with the facts proved.”

123. I am satisfied that Dr Lobel has based his opinion upon assumed facts which are

“sufficiently like” to the facts I have found in Mr Attard’s matter. Therefore I prefer Dr

Lobel’s opinion, that there has been no aggravation by the subsequent employment, to the

opinion expressed by Dr Freeman.

124. Therefore I am not satisfied that there has been injury established under section 4(b)(ii) of

the 1987 Act, as amended, against the second and third respondents.

125. So on either basis argued by the first respondent, I find no liability for the second and third

respondents to pay compensation to Mr Attard.

126. Accordingly I make an award for the second and third respondents.

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SUMMARY

The Commission determines:

1. Pursuant to the former version of section 4(b)(i) of the 1987 Act the applicant sustained

injury to his skin in the form of dermatitis in the course of his employment with the first

respondent to which his employment was a contributing factor.

2. Pursuant to section 9A of the 1987 Act the applicant’s employment with the first respondent

was a substantial contributing factor to his injury.

3. Pursuant to section 15 of the 1987 Act compensation is payable by the first respondent,

being the last employment to the nature of which the disease was due.

4. Award for the second and third respondents.

5. The lump sum claim against the first respondent is remitted to the Registrar for referral to an

AMS to assess the whole person impairment in relation to injury to the skin with date of

injury of 19 March 2012. The documents to be referred to the AMS are to include those in

evidence before me and a copy of this Certificate of Determination and Statement of

Reasons.

6. The first respondent is to pay the applicant’s section 60 expenses on production of accounts

and or receipts or Medicare charge.