6
Extract from Queensland Government Industrial Gazette,
Dated 14 December 2007, Vol. 186, No. 19, pages 695-700]
INDUSTRIAL COURT OF QUEENSLAND
Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate
Q-COMP AND Gordon Robinson (C/2007/49)
PRESIDENT HALL / 4 December 2007DECISION
The respondent, Gordon Robinson, is almost 82 years of age. He retired from the workforce in August of 1986. For some period of time he has been troubled by skin cancers. He attributes the cancers to the very substantial period of time during which he worked as a casual waterside worker and later as a permanent waterside worker on the Brisbane waterfront and endured unprotected exposure to the sun. By an Application for Compensation under the WorkCover Queensland Act 1996 dated 11 May 2006 Mr Robinson sought benefits in respect of an injury described as "solar induced skin disease" attributed to "unprotected sun exposure whilst working on the Brisbane waterfront". The injury was said to have occurred "over a period of time" in the "1960's". By a letter dated 23 August 2006 WorkCover Queensland (WorkCover) informed Mr Robinson's solicitors that the application had not been accepted. The critical passage in that letter was:
"WorkCover Queensland has decided not to accept Mr Robinson's application for basal cell carcinoma as it was lodged outside the time period stated in the Workers' Compensation Act 1916 (Qld) (as amended) Section 4(2). WorkCover Queensland will consider Mr Robinson's application for squamous cell carcinoma under a separate claim.".
For present purposes, the "Statement of Reasons" does not take the matter further. I do note that the issue about whether the time limit should be waived pursuant to s. 4(2)(b) was dealt with.
It is useful to make some preliminary comment both about the Application for Compensation and the letter of rejection. The Application for Compensation should have been made pursuant to the Workers' Compensation and Rehabilitation Act 2003. By May of 2006 the WorkCover Queensland Act 1996 had long since been repealed. The reference back to the very much earlier act, viz. the Workers' Compensation Act 1916, was required by s. 603 of the Workers' Compensation and Rehabilitation Act 2003 which requires that where a worker sustains an injury before the commencement of s. 603, a former Act in force when the injury was sustained applies in relation to the injury. WorkCover's reference to s. 4(2) of the Workers' Compensation Act 1916 is, however, infelicitous. The reference (plainly) is to s. 4(2) of the Schedule to the Workers' Compensation Act 1916.
By a letter dated 28 November 2006 Mr Robinson's solicitors forwarded an Application for Review to Q-COMP. By a letter dated 16 January 2007 Q-COMP informed Mr Robinson's solicitors that WorkCover's decision was not reviewable. Formal parts omitted, the letter was in the following terms:
"I refer to an application for review dated 26 November 2006 in relation to the above matter and to our discussions in the interim.
The matter is not reviewable.
My understanding is that the worker's solar exposure ended in 1986 and that this point is not in dispute.
Following the reasoning in Martindale v Waller Ors [1916] QCS 113, whilst of course noting the different disease process in that case, the worker's injury is deemed to have been suffered at time of exposure rather than at time of emergence of disease proper.
Rights to review accrue only from the enactment of the WorkCover Queensland Act 1996 onwards. I do note section 36A of the Workers' Compensation and Rehabilitation Act 2003 but understand that the worker was diagnosed prior to the commencement of that provision.".
It is convenient to interpolate here that it is common ground that the reference to Martindale v Waller Ors [1916] QCS 113 is a reference to the decision which appears in the authorised reports as Martindale v Burrows [1997] 1 QdR 243. Henceforth, I shall refer to the authorised report.
By correspondence dated 15 February 2007, Mr Robinson's solicitors initiated an appeal against the decision of Q-COMP to the Industrial Magistrates Court at Brisbane. The grounds of appeal were asserted to be:
"The grounds for appeal are
1. The decision to reject the claim was contrary to the evidence;
2. The decision to reject the claim was wrong in law; and
3. The decision included irrelevant matters which formed part of the decision by Q-COMP to reject the appeal.".
As I apprehend the submissions (written and oral) put to this Court, the case developed before the Industrial Magistrate was rather more sophisticated than the grounds of appeal would suggest.
To begin with, notwithstanding the terms of the Application for Compensation, the claim was said to be about a lesion which claimed Mr Robinson's left eye in June 2006. The lesion was said to have been a recurrence of a cancer which had been removed in 2004. Plainly, if that argument was made out, there was every basis for asserting that the relevant Act was the Workers' Compensation and Rehabilitation Act 2003, rather than the Workers' Compensation Act 1916. It was further put to the Industrial Magistrate that Q-COMP erred in summarily rejecting the Application for Review on the ground that it could only have been an injury governed by the Workers' Compensation Act 1916. Counsel for Mr Robinson then set about outlining the factual basis for the claim and why it was that the decision in Martindale v Burrows [1997] 1 QdR 243 was not a complete answer. The relief sought was not acceptance of Mr Robinson's Application for Compensation but remitter of the matter to Q-COMP for Review, presumably after receipt of statements of evidence and written submissions from the parties.
There are some unusual features to the case which was argued before the Industrial Magistrate. The Industrial Magistrate was not asked to determine whether the language of the Application for Compensation of 11 May 2006 was appropriate to initiate a claim about the lesion which claimed Mr Robinson's left eye. If the matter is ultimately remitted to Q-COMP, arguments about that matter may well surface on the Review. Additionally, the Industrial Magistrate was invited to deal with the matter on the assumption that there was no right to Review if the injury had (in truth) occurred before the commencement of the WorkCover Queensland Act 1996 on 1 February 1997. This appeal has also been argued upon that assumption. It may well be that on a future occasion, another appellant will seek to argue that where WorkCover applies the Workers' Compensation Act 1916 because the Workers' Compensation and Rehabilitation Act 2003 requires WorkCover to do so, WorkCover takes a decision under the latter act. Finally, there was a problem with language. There is more than a little turgidly in repetitively referring to "a seriously arguable issue of fact" and "a contentious issue of law". Inevitably, there was lapse in language and discussion about whether the lesion which caused the loss of Mr Robinson's eye was in truth a stand alone injury. Ultimately, at para 61 of the Industrial Magistrate's decision, Her Honour said:
"61. A BCC which is an identifiable physiological change is an injury for the purpose of section 32(1). I have found that the injury, being the BCC that resulted in removal of Mr Robinson's eye, is on balance of probability a recurrence of the 2004 lesion, and not a new cancerous lesion.".
The finding goes beyond the relief ultimately sought. It is accepted by Mr Herbert of Counsel for Mr Robinson that, if Mr Robinson is otherwise successful and the matter is remitted to Q-COMP for Review, it must be remitted without the benefit of that finding. I share that view. In my view, any Review is to be conducted on the basis that the matters have not been predetermined either by the proceedings in the Industrial Magistrates Court or by the proceedings in this Court.
Against that background, I turn to the submissions about the facts and to the submissions that the decision in Martindale v Burrows [1997] 1 QdR 243, is not a complete answer.
The critical medical evidence before the Industrial Magistrate was an opinion of Dr Godfrey Wagner, a clinical dermatologist, dated 12 August 2006 and the evidence which Dr Wagner gave to the Industrial Magistrates Court. (Regrettably, because of the failure of technology, there are serious inadequacies in the transcript.) In the course of his written opinion Dr Wagner outlines the general nature of the non-melanoma skin cancer which is the malignancy suffered by Mr Robinson. Materially, Dr Wagner observes:
"Non melanoma skin cancer, or NMSC, is the term used to describe basal cell cancer (BCC), squamous cell cancer (SCC) and common in Queensland, Australia where the lifetime risk of developing skin cancer is 66%.
...
UV radiation causes damage to the DNA in the nucleus of skin cells. The effect of this damage is cumulative UVA, UVB and UVC have all been implicated, UVB is the most damaging. UVB exposure causes damage to the pyridine dimmers in the DNA. Initially there can be minor changes or mutations. These can lie 'dormant' for many years ans [sic] sometimes only after many generations of cell division that a skin cancer becomes apparent. The body has the ability to detect altered DNA and in some cases will repair it. Inevitably some damage becomes irreversible and skin cancer will result.
Thus there are 3 stages of UVB induced carcinogenesis. The first is initiation where there is sun induced damage to the DNA. These are early changes, some of these will repair, some will continue to the next stage called promotion. This is basically further mutation of the DNA as a result of cumulative effect of UV damage. It is still possible for the cell damage to be reversed by the body's immune system. The final stage is called progression where there is irreversible commitment to malignant behaviour.
The entire area that is exposed to the sunlight is damaged. This 'field' change causes the development of crops of skin cancers, to occur, the exact location of each is determined by the DNA mutation and the ability of the body to deal with the damage at that particular site. As time progresses further lesions develop in the damaged 'field'. It is felt that solar keratoses are the precursors of SCC. There is no clinically recognisable precursor for BCC. We are not able to predict clinically which solar keratoses is likely to progress to SCC so it is necessary to treat all precancerous lesions preventatively.".
On the specific issue of the removal of Mr Robinson's left eye, Dr Wagner opined:
"Mr Robinson had his left eye removed due the recurrent BCC. In 1996 he developed a BCC at the inner canthus of his eye. This was surgically removed. The resultant surgery left him with an eyelid that would not completely close. The consequent dryness and irritation of the cornea lead to the formation of a pannus, or thickened membrane of the surface of his eye that lead to significant loss of vision. In 2004 further tumour was resected. This may have been recurrence of the 1996 lesion or may have been a new primary. In June 2006 his orbit was removed. It is academic only as to 'which' BCC caused the eventual removal of his orbit. The disease process of 'field' change to the entire area caused by sun damage means that he was at risk of developing new lesions at any site of sun exposure.".
For all the inadequacies in the transcript, I share the Industrial Magistrate's view that Dr Wagner ultimately expressed the opinion that the lesion which was directly responsible for the removal of the eye was probably a recurrence of the 2004 cancer, but that because of the time gap it was improbable that the 2004 lesion was a recurrence of the lesion treated in 1996.
It is not useful to go further into the evidence of Dr Wagner. As mentioned, the transcript is unreliable. Further, Dr Wagner appears not infrequently to swear to the issue. Additionally, if this matter goes further, there may well be contradictory expert evidence or (perhaps) evidence querying the history upon which Dr Wagner relied. It is sufficient to assert that there is an apparent basis for the proposition that the lesion which caused the loss of the eye was a discrete post-July 2003 injury, i.e. an injury after the commencement of the Workers' Compensation and Rehabilitation Act 2003.
Martindale v Burrows [1997] 1 QdR 243 was not a case about workers' compensation. It was a case about personal injury. The general nature of the case is adequately summarised in the headnote:
"The plaintiff alleged that due to the negligence of his former employers he had contracted the disease mesothelioma consequent upon his inhalation of asbestos during successive periods of employment commencing in 1956 and ending in the 1980s. In cases of mesothelioma ingestion of asbestos caused incremental bodily changes, eventually, in some unpredictable cases though not in others, igniting a process which progressed naturally during a period of years to a malignant transformation. The plaintiff's disease was not diagnosed until 7 November 1995 and in his case malignant transformation probably occurred during the period from May to November 1994. He sought a declaration that his cause of action arose at some time during that period.".
The application for a declaration failed. It was held that the plaintiff's alleged cause of action accrued when the asbestos particles he ingested began to cause the condition of his lungs which had led to the development of his mesothelioma. One may readily understand why Q-COMP considered Martindale v Burrows, ibid, to be analogous to the present case. There are, however, dangers in seeking to resolve statutory claims by analogy with the application of common law concepts. In Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at [22] Gleeson CJ and Kirby J put the matter thus: