By
Mike Toten
Mike Toten is a freelance writer, editor and media commentator.
Working outdoors was found to be the main cause of the disease, despite the employer’s contention that he worked more than half the time inside the cabin of tractors and that his earlier lifestyle was a major contributing factor.
Facts of case
The employee maintained council parks and gardens, and after being employed for 32 years he was diagnosed with aggressive skin cancer. A year later the disease forced him to cease work. A workers compensation claim was successful, the verdict being that UV radiation exposure at work was the main contributory factor to the acceleration of his condition.
The council argued that 50% of his lifetime sun exposure was from childhood and a further 20% from adult recreation activities, leaving work as only 30% of the cause. It relied on a dermatologist’s report to claim this. It claimed that only six of his 33 years of employment should be taken into account, as it implemented protection measures after that.
However, the employee’s treating doctor provided a different view, stating that long sun exposure on the left side of his face meant that employment was the main contributory factor. His dermatologist also reported that 33 years of outdoor work was a substantial and the main contributory factor. The employee’s evidence was preferred and compensation payments were awarded.
The council then appealed. It claimed that the employee contracted skin cancer during his lifetime, which differed from aggravating or accelerating a “disease injury”. But a distinction was made between “skin damage” caused in his pre-employment years and the aggressive cell carcinomic condition that developed during his employment. The employer’s dermatology report failed to relate the dermatologist’s opinion to the employee’s specific exposure and therefore lacked a scientific basis. The employer had attempted to argue that only six years of employment should have been taken into account. He had worked from inside tractor cabins for the final 20 years of his employment.
Decision
The employer’s appeal was rejected and the compensation payments were retained. The employee’s treating doctors were in the best position to assess the main contributory factors to the acceleration of his condition.
What this means for employers
This decision provides insight into how the meaning of “main contributing factor” (in relation to the cause, exacerbation or acceleration of an injury) will be interpreted. It also demonstrates that where there is conflicting medical evidence, tribunals and courts will favour the evidence that is more relevant to the employment. In this case, the employee’s own medical practitioners who had treated him for many years were better able to demonstrate the contribution of his employment toward skin cancer.
Read the judgment
Kiama Municipal Council v Manning [2022] NSWPICPD 35 (31 August 2022)
Mike Toten
Freelance Writer
Mike Toten is a freelance writer, editor and media commentator who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. Mike has over 30 years' writing experience, including writing and editing Human Resources Management
