Zecevic v Blackwood[2015] QSC 232

SUPREME COURT OF QUEENSLAND

[1] The applicant, Mr Zecevic, suffers from an autoimmune disorder called diffuse scleroderma.  It is a rare condition occurring, according to some studies, in about 10 cases per million of population.  It commonly results, as it has for the applicant, in abnormalities in the lungs, heart and gastrointestinal tract.  There is no known cure for the condition. 

[2] The applicant claims that his scleroderma was the result of his work as a tiler and a tiler’s labourer from 1995 until 2008 and he wishes to claim damages against his former employer.  To that end, on 22 October 2012 he lodged a Notice of Claim for Damages with WorkCover Queensland.  In April 2013, WorkCover rejected his claim on the basis that his scleroderma was not caused or materially contributed to by his work. 

[3] The applicant sought a review of that decision by Q-Comp, pursuant to the then terms of s 258(9) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) by which, as a person aggrieved by the decision, he might have the decision reviewed under Chapter 13 of the Act.

[4] By s 545 of the Act, Q-Comp as “the Authority” was required to review the decision and to decide that the decision should be confirmed, varied, set aside with another decision substituted for it or set aside with the matter being returned to WorkCover with the directions which Q-Comp considered appropriate.[1]  Q-Comp set aside the decision and returned the matter to WorkCover with directions which relevantly included the following:

“-refer this matter to the appropriate Medical Assessment Tribunal to determine if Mr Zecevic’s scleroderma constitutes an ‘injury’, in accordance with section 32 of the Act …

-WorkCover is to consider all new evidence and make a fresh decision within 10 business days of receiving same.”

[5] The matter was referred to the General Medical Assessment Tribunal, which determined that the applicant’s scleroderma was not a consequence of his employment.  By this proceeding, he seeks judicial review of that decision.

The evidence before the Tribunal

[6] Before going to the Tribunal’s reasons for its decision and the applicant’s arguments, it is necessary to discuss the evidence which was before the Tribunal.  The work history of the applicant was not disputed.  He migrated to Australia in his early 20s in 1995 and soon began work with a tiling company.  He worked for that employer until 2008.  For the first few years, he worked primarily as a labourer in circumstances where he was exposed to floor dust and cement dust.  From 1998, he was employed as a tiler spending most of his time tiling and the rest in mixing cement and sand.  He cut tiles with an angle grinder which exposed him to dust.  Larger tiles were cut with a wet saw cutter which produced little dust but most of the tiles were cut with a dry cutter.  From 2003 until he stopped work in 2008, he was employed as a foreman but still did some tiling.  At no time did he wear a mask or protective clothing. 

[7] His symptoms began in 2003 with the development of facial palsy, weakness and swelling of his hands and the appearance of what is called Raynaud’s phenomenon which is a condition in his fingers.  His general health deteriorated with the onset of other problems such as stiffness in his limbs and effects on his oesophagus, lungs and heart as well as other complications.  He was referred to the Gold Coast Hospital in 2005 where rheumatologists diagnosed his scleroderma.  As his disabilities increased, he was forced to stop work in April 2008. 

[8] Three professional opinions were provided to the Tribunal.  The first, which was adverse to the applicant, was written by Dr William Douglas.  He wrote that the applicant suffered from the “classical physical signs” of the condition and that there was no factor against the diagnosis of scleroderma or any alternative to that diagnosis.  His instructions asked for his opinion on whether the development and aetiology of this condition could be “definitively identified” or whether those matters were “to some extent inherently speculative”.  He answered as follows:

“The aetiology of this condition is unknown.  Because it is rare, it is challenging to discover aetiological factors.  Gender is clearly a factor and whether that is based on genetics or hormones is unclear.  Professor Roberts-Thomson (2011) reports familial clustering which suggests a genetic contribution and current research is examining gene and genome-wide associations.

In the late 1950’s there was a report from South Africa of 17 cases of scleroderma in underground gold miners in the Witwatersrand.  This paper is frequently quoted but I have been unable to locate a copy of the journal.  From my reading of Rodman’s summary of the findings, in the reported 17 cases there was a predominance of pulmonary manifestations i.e. cough and pleuritic pain.  6/17 had radiographic evidence of silicosis.  More than half showed pulmonary fibrosis characteristics.

Rodman et al (1967) reported on a series of sixty men diagnosed with PSS and found that 26/60 had worked as coal miners or in other occupations associated with heavy and prolonged exposure to silica dust.  8/26 had radiographic changes of silicosis; 3/26 had anthracosis (coal miners’ lung).  It should be noted that Rodman worked in Pittsburgh where the main employment was in coal mining and heavy industry.

In 1992 the UK Arthritis and Rheumatology Council Epidemiology Research Unit performed an occupational analysis of 56 men diagnosed with scleroderma.  They could find no evidence that silica exposure was implicated in the onset of the disease.  Also there was no significant increase in past exposure to organic solvents.

Thus the cause of the condition is unknown and the aetiology is speculative.”

[9] In answer to the question of whether the applicant’s scleroderma was caused by his work, Dr Douglas wrote as follows:

“I am not persuaded that work was a significant contributing factor to the onset of Mr Zecevic’s illness.  The most reliable case reports of scleroderma in men with occupational exposure to silica dust have come from gold and coal mining where they had heavy and prolonged exposure.  I am not aware of any reports that the incidence of scleroderma is higher in tilers than in the general population.  Given the large numbers of people who work as tilers and in the construction industry, if there was a link to scleroderma, I would expect it to have manifest[ed].

This man had, at the most, seven years employment as a tiler before the onset of scleroderma.  He did not present with respiratory symptoms and has no evidence of silicosis or other occupation-related lung damage.  He has presented with the classic picture of [scleroderma].”

Dr Douglas added that he did not know what had caused the applicant’s scleroderma.

[10] Secondly, there were reports from Dr Helen Englert, a consultant physician in rheumatology.  Her evidence favoured the applicant’s case.  In answer to the question of whether the applicant’s employment as a tiler was a significant contributing factor to the development of his condition, in her report of 20 August 2013 she wrote:

“Most probably yes.  The history of intensity to inhaled silica exposure when Mr Zecevic worked as a bricklayer’s labourer [an earlier occupation] appears to be low relative to the intensity of dust to which he was exposed as a tiler.”

In her view, it was his “exposure to inhaled crystalline silica dust” which caused his condition.

[11] In answer to a question of when did the condition develop, Dr Englert wrote:

“Assuming [the applicant’s] initial high intensity inhaled silica exposure was in 1995 when he became a labourer, and his clinical disease onset was in 2004, the lag period or latency interval - the period of time over which the condition developed - approximates 9 years.  This latency interval accords with those of other studies though a little short - more often latency approximates 2 decades (1-5)

She also referred to studies in South Africa and Canada which compared the incidence of the condition in mine workers with those in the general community.

[12] The third professional opinion was from Dr Michael Robertson, a forensic toxicologist, which also supported the applicant’s case.  In his report dated 24 August 2012, Dr Robertson wrote:

“Whilst the mechanism or causation of scleroderma remains somewhat unclear, it is generally accepted that risk factors or causal factors for scleroderma exist.  That is, it appears that respirable silica dust and/or some inhaled solvents including trichloroethylene, chlorinated and aromatic solvents, epoxy resins may act as a trigger in those individuals genetically susceptible or predisposed to scleroderma.  Smoking does not appear to be one of the documented triggers for scleroderma.

…

Silicon is an abundant natural element found typically in the form of sand and stone however is also important in bone formation and mineralisation.  Silica or silicon dioxide (Si02) is formed when silicon is exposed to oxygen.  Thus silica is also ubiquitous and is also used widely as a raw material in the production of ceramics including tiles, porcelain, stoneware and Portland Cement.

Exposure to silica generally occurs as a result of inhaled particles of silica that may be caused by the grinding or blasting of stone, cement, tiles etc or following the creation of dust when exposed to powders containing silica.  When fine silica dust particles are inhaled, it is proposed that they stimulate or cause immune-responses leading to auto-immune diseases such as scleroderma.  As such it is widely documented that the inhalation of silica dust is linked to auto-immune conditions in general and scleroderma specifically.

Whilst it remains unclear what dose, over what period of time is required to induce or cause scleroderma, studies suggest it may be the dose and not necessarily the length of time of exposure that triggers the immune response that ultimately leads to scleroderma however typical lengths of exposure are beyond 10 years.  It has also been suggested that silica may penetrate the skin, leading to an immune-response within the skin and therefore triggering scleroderma, however this is yet to be demonstrated or confirmed in clinical trials or by epidemiological studies.

…

A range of occupational studies have identified a relationship between occupational silica exposure and an increase[d] risk of scleroderma.  In these and many other studies relating to causes or risk factors associated with scleroderma, silica has been implicated as a causal agent.  Further, it appears inhaled silica causes or creates a biological mechanism that could cause or induce scleroderma in susceptible individuals.  Whilst it is difficult to determine the magnitude of exposure in many of these studies i.e. how much exposure, over what period of time, the United States Department of Labor’s National Institute for Occupation Health and Safety (NIOSH) have stated that occupational exposure to respirable crystalline silica is a serious but preventable health hazard and list among industries that pose the greatest potential risk for worker exposure; ceramics, tile setting, masonry work and stone cutting.  It therefore appears reasonable to conclude that if you work in an industry identified by NIOSH as having the greatest potential risk to exposure, and that this exposure is associated with ‘normal’ work practices, it follows that any individual doing ‘normal’ work functions may also have an elevated risk of being exposed.”

[13] Dr Robertson noted that the applicant had worked with products contained Portland Cement and that a publication associated with the supply of that material, which was before the Tribunal, listed a warning of an increased risk of irreversible and serious disorders including scleroderma.  Dr Robertson also noted that the Tribunal had a publication by Workplace Health and Safety Queensland which specified scleroderma as a disease which could be caused by crystalline silica exposure. 

[14] Dr Robertson said that it could not be determined “if or how much silica Mr Zecevic was exposed to”.  He then expressed his conclusion as follows:

“Whilst, the possibility of a purely idiopathic cause for the scleroderma in the case of Mr Zecevic cannot be ruled out or excluded, [from] the history of chronic exposure to respirable silica dust and the absence of other risk factors such as gender and age, it is reasonable to conclude that his occupational exposure to silica dust is likely to have caused or contributed to his scleroderma for the following reasons:

• Respirable silica has been well documented and accepted as a causative factor of scleroderma in susceptible people
• Scleroderma has been generally accepted as an occupational injury when exposed to respirable silica
• The industry within which Mr Zecevic works is regarded as one with greatest potential risk for worker exposure to respirable silica
• Mr Zecevic was exposed daily to a respirable dust that is likely to have contained silica

…

• In the absence of his exposure to respirable silica, Mr Zecevic is not representative of the high risk population to develop scleroderma.  That is:
• Scleroderma affects approximately 2 to 10 people per million
• Of those affected, women are three to four times more likely to be affected
• When diagnosed before 40, females are seven times more likely to be diagnosed.”

The Tribunal’s decision

[15] The Tribunal’s written decision set out the applicant’s employment history in a way which is not criticised in the submissions here.  The Tribunal said that on its examination the applicant had obvious signs of scleroderma and that he suffered from it. 

[16] The Tribunal found that the applicant’s employment had not significantly contributed to his condition.  The Tribunal’s conclusion was expressed as follows:

“[T]he matters alleged for the purpose of seeking damages did not constitute an injury to the worker …”

[17] The stated reasons of the Tribunal were as follows:

“The reports from Dr Michael Robertson, Dr William Douglas and Dr Helen Englert were noted.

There have been reports in the literature of an association between a high cumulative exposure to respirable silica and scleroderma, but these have involved very large cumulative exposures in underground miners, associated with inadequate workplace dust control measures.  Although Mr Zecevic was exposed to silica, the Tribunal considered that his overall exposure was low and at a level unlikely to cause end organ damage.

The latent period between his exposure to silica and the diagnosis of scleroderma was shorter than the median reported in the literature, and studies have indicated that it is the cumulative life time exposure to silica which is associated with scleroderma.

The aetiology of scleroderma remains unknown.  It has been associated with silica exposure but this is associated with a large cumulative exposure as described in underground miners.  The Tribunal considers that Mr Zecevic’s exposure to respirable silica was at the lower end of the range to cause end organ damage.  The latent period between his exposure to respirable silica and his diagnosis of scleroderma was significantly shorter than the median described in the literature.  The combination of a low exposure to respirable silica and a shorter latent period between exposure and disease development makes it unlikely that Mr Zecevic’s employment with M & M Tiling (QLD) Pty Ltd over a period of time from 1995 until 2004 contributed to his development of scleroderma.

The Tribunal considers that Mr Zecevic’s employment with M & M Tiling (QLD) Pty Ltd was not a significant contributing factor to the development of his scleroderma.”

The statutory context

[18] Section 32 of the Act relevantly provides as follows:

“32Meaning of injury

(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

…

(3)Injury includes the following -

(a)a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease …”

[19] Section 237 of the Act then relevantly provided as follows:

“237General limitation on persons entitled to seek damages

(1)The following are the only persons entitled to seek damages for an injury sustained by a worker -

…

(d)the worker, if the worker has not lodged an application for compensation for the injury.”

[20] Section 258 relevantly provided as follows:

“258Access to damages if claimant has not lodged application for compensation

(1)The claimant may seek damages for the injury only if the insurer -

(a)decides that the claimant -

…

(ii)has sustained an injury; and

…

(7)If, for any injury, the insurer decides that the claimant -

…

(b)has not sustained an injury;

the notification must include written reasons for the decision.

…

(9)A person aggrieved by a decision made by the insurer for the purpose of subsection (1) may have the decision reviewed under chapter 13. …”

[21] This matter was referred to the Tribunal under the power conferred by s 500(1)(c) of the Act, which provided that an insurer might refer, amongst other matters in relation to an injury, “a worker’s injury under section … 258(1)(a)(ii) … [to] the appropriate tribunal for decision on the medical matters involved …”.  The referral engaged s 503 of the Act which relevantly provided as follows:

“(2)If the insurer has not admitted that an injury was sustained by a worker, and the nature of the injury, the tribunal must decide whether the matters alleged for the purpose of seeking damages constitute an injury to the worker and, if so, the nature of the injury.”

[22] The Tribunal’s power was limited to a consideration of so-called medical matters, according to s 500.  By s 514, if the Tribunal considered that the terms of a reference to it involved both medical and non-medical matters, the Tribunal was able to refer the non-medical matters back to the insurer for a decision.  A Tribunal’s decision is final in so far as it is a decision on a medical matter referred to it and subject to the operation of the Judicial Review Act 1991 (Qld).[2]  The term “medical matter” was and is undefined in the Act. 

[23] A decision of a Medical Assessment Tribunal is one of an administrative character made under an enactment for the purpose of s 4 and s 5 of the Judicial Review Act[3] and a claimant worker is an aggrieved person within the meaning of s 7 of that Act.[4] 

The alleged grounds for review

[24] The originating application set out grounds which did not correspond entirely with the written or oral submissions for the applicant.  I will address these submissions. 

[25] The written submissions first criticised the decision as lacking an evidentiary basis, thus providing a ground for review under s 20(2)(f) of the Judicial Review Act.  This submission identified the following bases for the Tribunal’s decision:[5]

(a)the applicant’s level of exposure was low and at a level unlikely to cause end organ damage;

(b)the applicant’s latent period was below the median latency period reported in the relevant literature;

(c)the aetiology of scleroderma remains unknown; and

(d)the combination of (a) and (b) made it unlikely that his silica exposure during his employment contributed to the development of his scleroderma.

[26] It was argued that there was no “evidentiary or medical basis” for the finding in (a).  The Tribunal’s finding that “the overall exposure was low” was made by reference to what the Tribunal described as “reports in the literature of an association between a high cumulative exposure to respirable silica and scleroderma [involving] very large cumulative exposures in underground miners …”.  Dr Douglas referred to these cases as involving “heavy and prolonged exposure” to silica dust.  In my view, there was an evidentiary basis for the Tribunal’s finding that the applicant’s exposure, in comparison with these cases of miners, was low. 

[27] There was not such a clear evidentiary basis for the Tribunal’s finding that the applicant’s level of exposure was unlikely to cause end organ damage.  If, as the Tribunal found, the aetiology of the disease is unknown, then in the absence of any published studies of the incidence of the disease amongst tilers or others working in relevantly similar conditions, the only indication in the evidence of this unlikelihood was from the comment by Dr Douglas that he was unaware of any reports that the incidence of the disease was higher in tilers than in the general population.

[28] The finding in (b) that the applicant’s latent period was below the median reported in the literature, is said to have lacked an evidentiary basis.  However, there was a basis within the evidence of Dr Englert which I have set out above at [11].

[29] The finding in (c), that the aetiology of scleroderma remains unknown, is criticised in the applicant’s argument.  It is conceded that Dr Douglas provided evidence to this effect:  see the passage which I have set out above at [8].  But it is said that this was evidence simply of a lack of awareness on the part of Dr Douglas, because a link between exposure to silica and the disease was proved by the evidence of Dr Englert and Dr Robertson.  This criticism of the finding in (c) misunderstood the Tribunal’s reasoning.  The Tribunal accepted that there was an apparent risk that the disease could result from a sufficient level of exposure to respirable silica.  In saying that the aetiology of the disease remained unknown, the Tribunal was saying that there was no known scientific explanation for the origin of the disease.  That was not inconsistent with the evidence of Dr Englert and Dr Robertson. 

[30] The finding in (d) is said to have lacked an evidentiary foundation upon the basis of the applicant’s arguments of the lack of evidence to the findings in (a), (b) and (c).  As I have held, those submissions should be rejected save for the finding that the applicant’s level of exposure was at a level which was unlikely to cause end organ damage.

[31] There are more fundamental difficulties in the applicant’s argument for a ground of review under s 20(2)(f).  Upon this ground, an applicant must establish the absence of evidence or other material to justify the making of the decision.  In essence, the decision of the Tribunal here was that the applicant’s case was not proved.  There was evidence which supported the applicant’s case.  But the Tribunal was not obliged to accept the opinions of Dr Englert and Dr Robertson that, more probably than not, the applicant’s disease was caused by his work.  It was open to the Tribunal to accept the contrary opinion of Dr Douglas.  It was also open to the Tribunal, applying its own professional expertise and experience, to reach the same conclusion.  If the Tribunal went too far in concluding that the level of exposure to silica dust was unlikely to have caused scleroderma in his case, it does not follow that the Tribunal should have held that the level of exposure was likely to have had that effect.  The ultimate conclusion of the Tribunal, that his employment was not a significant contributing factor to the development of his scleroderma, was the consequence of the Tribunal not being persuaded to accept the contrary proposition.  For these reasons, the argument based upon s 20(2)(f) must be rejected.

[32] The applicant’s argument also failed to meet the requirements of s 24 of the Judicial Review Act which provides:

“24Decisions without justification - establishing ground (ss 20(2)(h) and 21(2)(h))

The ground mentioned in sections 20(2)(h) and 21(2)(h) is not to be taken to be made out -

(a)unless -

(i)the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and

(ii)there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or

(b)unless -

(i)the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and

(ii)the fact did not or does not exist.”

The present case could not be within paragraph (a) of s 24.  As to paragraph (b), if the decision was based on the existence of the fact that the applicant’s relatively low level of exposure was unlikely to have caused his condition, the lack of an evidentiary basis for that finding could not found judicial review unless this court could be satisfied that the fact did not or does not exist.  The court could not be satisfied of the non-existence of that fact, given the expert opinion as I have summarised it.

[33] A further submission was that the Tribunal erred in law by not answering the question which was raised by the reference to it.  It was argued that the Tribunal considered whether the applicant had “as a scientific question, proven the fact of a causative connection between his particular silica exposure and his onset of scleroderma”,[6] rather than asking whether, on the balance of probabilities, such a connection was established.  That submission cannot be accepted.  The Tribunal did not require the applicant’s case to be proved with scientific certainty.  Having noted that the aetiology of the disease was unknown, the Tribunal still considered whether the applicant’s case was likely and to be accepted.  As appears in the reasons which I have set out, the Tribunal made findings by reference to what was “unlikely”.  In particular, it found that it was “unlikely that Mr Zecevic’s employment … contributed to his development of scleroderma”. 

[34] In his oral submissions, counsel for the applicant argued that “the Tribunal elevated the opinion of one particular expert [Dr Douglas] which was an opinion of unawareness … of a causal link between silica exposure and the condition of scleroderma … to a proof … that there is no causal link”.[7]  That submission did not accurately describe the evidence of Dr Douglas.  In any case, the Tribunal did not find that there was no link between exposure to silica and the disease. 

[35] At another point in the applicant’s oral submissions, it was argued that the Tribunal should have referred the matter back to the insurer.  This submission sought support from CSR Ltd v General Medical Assessment Tribunal - Thoracic & Anor.[8]  The alleged injury in that case was from what was said to have been a sustained period of exposure to a particular material which is derived from dried sugar cane.  The Tribunal found in the claimant’s favour, proceeding upon an assumption which, the court held, had not been established before it, namely that there had been a prolonged exposure to this material.  The court held that the extent of that exposure was not a “medical matter” and involved a factual question which should first have been referred to the employer for comment or further evidence before it could be used as the basis on which the Tribunal could decide the reference to it.[9]

[36] It was submitted that if the present case could not be decided on what the argument described as “purely scientific grounds”,[10] the Tribunal should have referred back to the insurer the entirety of the case for the insurer to make a decision “on probability grounds applying more than just scientific medical knowledge”.[11]  For that distinction between “scientific” and “probability grounds”, the argument referred to a judgment of the New South Wales Court of Appeal in Fernandez v Tubemakers of Australia Ltd.[12]  It was there held that the facts of that case permitted a finding of causation where the medical evidence went no further than to establish a possibility of causation.  The judgments demonstrate that in such cases a finding of causation may be open without medical evidence to support it.[13]  They emphasised that the question, in every such case, is whether, on the balance of probabilities, the fact of causation was established. 

[37] Ultimately this argument for the applicant was that the question which the Tribunal decided should instead have been referred back to the Tribunal because it involved a non-medical matter, under s 514 of the Act.

[38] The Tribunal decided the question which was referred to it.  It had to do so only by a decision on medical matters.  The expressed object of Chapter 11 of the Act, which provides for Medical Assessment Tribunals, is “to provide for an independent and non-adversarial system of medical review and assessment of … injury and impairment sustained by workers …”.[14]

[39] Indisputably, the Tribunal was performing its proper role in its consideration of whether the applicant was suffering from scleroderma.  In my view, it was also doing so in considering, by the application of the professional knowledge and experience of its members, whether the disease had been caused by the applicant’s employment.  The absence of a known aetiology did not mean that the Tribunal’s decision was made beyond its role as the decision maker for medical matters.  Whether the disease had resulted from the applicant’s employment was a medical matter, which was the subject of evidence from two doctors, each of whom expressed a professional opinion.  For example, Dr Douglas reasoned by reference to factors which included the lack of any respiratory symptoms or evidence of silicosis or other occupation-related lung damage.  The argument that the Tribunal strayed into non-medical matters cannot be accepted. 

[40] The written and oral arguments which I have discussed sufficiently encompass the grounds which were set out in the originating application. 

Conclusion

[41] It follows that the applicant has not established any ground for judicial review.  Of course, the question for this court is not whether the applicant’s condition was in fact caused by his employment.  The originating application must be dismissed.