September 2014

NSW WCC (NSW Workers Compensation Commission) Presidential Update ? August 2014

4 August 2014
StateCover Mutual Ltd v Cameron [2014] NSWWCCPD 49
Deputy President Roche

This case deals with a claim for lump sum death benefit; disease contracted by a gradual process; melanoma; whether employment is a substantial contributing factor to the contraction of the disease; interpretation of special insurance provisions relating to occupational diseases; ss 4(b)(i), 15(1)(b) and 18(1) of the Workers Compensation Act 1987; It was held:

  1. The worker was employed by a council from 1974 to 2008. The worker’s employment from 1974 to 1986 exposed him to sunlight. The worker died from a metastasised melanoma on 19 July 2011. 
  2. The assessment of whether the worker’s employment was a substantial contributing factor to their injury is not purely a medical question. It is to be determined on the basis of the lay and medical evidence. A finding that employment was a substantial contributing factor to an injury is a finding of fact.
  3. For the purposes of s15(1)(b), compensation is payable by the last employer in whose employment the worker was employed to the nature of which the disease was due.
  4. Where the deemed date of injury is after the worker ceased to be employed “in employment to the nature of which the disease was due”, liability is taken to have arisen immediately before the worker ceased to be employed in that employment (section 18 of the Workers Compensation Act 1987). The reference to “employment” is not limited to the period of employment, with a particular employer, which was causally related to the worker’s injury.  

6 August 2014
McGowan v Secretary, Department of Education and Communities [2014] NSWWCCPD 51
Deputy President Roche

This case deals with a claim for boilermaker’s deafness; claim for lump sum compensation for binaural hearing loss; dispute as to the nature and extent of the hearing loss; role of the Commission and Approved Medical Specialists in such a dispute; consequence of finding that employment was employment to the nature of which the injury of boilermaker’s deafness was due; It was held:

  1. An award for the respondent in respect of injury is a final order because, unless rescinded, altered or amended it determines the worker’s entitlement in respect of that body part.
  2. For the purposes of section 17, the worker must establish their hearing loss was caused by a gradual process and they were employed in employment to which the nature of the injury was due.
  3. Compensation is payable by last employer who employed the worker in employment whose tendencies, incidents and characteristics could give rise to a risk of industrial deafness, subject to meeting the relevant thresholds.
  4. In the normal situation it is for the Commission to determine the nature and extent of the injury sustained. That is, whether the worker sustained an injury, is a liability dispute to be determined before the matter is referred to an AMS. Where the claim relates to hearing loss, the situation is reversed because the nature and extent of the injury is determined by the AMS. By making an award for the respondent, the Arbitrator had determined the nature and extent of the worker’s hearing loss to be nil, when he had no power to do so. The issue to be determined by the Arbitrator was whether the worker’s employment was employment to the nature of which the injury was due.

21 August 2014
Maclean and District Bowling Club Co-operative Ltd v Green [2014] NSWWCCPD 53
Deputy President Roche

This case deals with disease; lung cancer; passive smoking; whether employment in the club and hotel industry was employment to the nature of which the disease of lung cancer was due; whether employment was a substantial contributing factor to the injury; whether lung cancer is a disease which is of such a nature as to be contracted by a gradual process; It was held:

  1. In terms of the phrase “employment to the nature of which the disease was due” in section 15(1)(b), quoting from Smith v Mann (1932) 47 CLR 426 at 441 “it was enough if his work with his last employer was of the same nature and character as the work to which the disease was due, and that it was not necessary to prove that it was the employment with his last employer that caused the ‘disablement’.”
  2. In obiter, DP Roche said lung cancer was a disease that comes within section 15(1). Whether the worker’s prolonged exposure to environmental tobacco smoke in the club and hotel industry was a substantial contributing factor to the contraction of the disease of lung cancer is a different issue as to whether the lung cancer was a disease within section 15(1).

(Note: The issue of whether smoke may be “dust” for the purposes of dust disease claims has not been resolved – see East West Airlines Limited v Turner [2010] NSWCA 53).

 

Author: Stephen Marsh