Bartosek v Workers' Compensation Regulator - [2022] QIRC 192

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Bartosek v Workers' Compensation Regulator [2022] QIRC 192
PARTIES:	Bartosek, Karl Andrew (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO.:	WC/2021/35
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	3 June 2022
HEARING DATE:	25 January 2022
MEMBER: HEARD AT:	Power IC Brisbane
ORDERS:	1. The appeal is allowed. 2. That the decision of the Workers' Compensation Regulator dated 25 February 2021 be set aside. *3. That the Appellant be paid benefits as a worker with a terminal condition pursuant to Chapter 3, Part 3, Division 4 of the Workers' Compensation and Rehabilitation Act 2003* (Qld). 4. Failing agreement on costs, to be the subject of a further application to the Commission. 5. Liberty to apply.**
CATCHWORDS:	WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – entitlements of worker with terminal condition – meaning of diagnosis – date of diagnosis of latent onset injury – whether appellant was diagnosed with a terminal condition before or after 31 January 2015 for the purposes of s 732 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – appellant entitled to compensation
LEGISLATION:	Personal Injuries Proceedings Act 2002 (Qld) Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 36A, 39A, 119, 128A, 128B and 732
CASES:	Armstrong v Local Government Workcare [2014] ICQ 007 Blanch v Workers' Compensation Regulator [2021] QIRC 408 Plant v Workers' Compensation Regulator [2022] QIRC 169 Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301
APPEARANCES:	Mr G.W. Diehm QC of Counsel and Ms K.J. Kluss of Counsel instructed by VBR Lawyers for the Appellant. Mr S.A. McLeod QC of Counsel directly instructed by the Respondent.

Reasons for Decision
Introduction

Mr Karl Andrew Bartosek ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to confirm an earlier decision of WorkCover Queensland ('the Insurer') to reject the Appellant's request for a latent onset terminal condition lump sum compensation in accordance with the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act').
On 7 September 2020, the Appellant applied for terminal benefits pursuant to s 128B of the WCR Act. This request was rejected by the Insurer on the basis that s 119 of the WCR Act operated to end the Appellant's entitlement to compensation. Following an application for review, the Respondent confirmed the decision to reject the application. The Appellant subsequently filed a notice of appeal to the Queensland Industrial Relations Commission ('the Commission') appealing the decision of the Respondent.
Background
The parties are in general agreement on the factual background to this matter. Between about 2002 and about 2015, the Appellant worked as a stonemason and was exposed to respirable crystalline silica dust in the course of his employment with Cascade Marble and Granite Pty Ltd from about 2002 to 2007.
The Appellant underwent a CT scan of his chest on 3 December 2014 and on 8 January 2015 the Appellant attended upon Dr David Deller, a treating respiratory and sleep physician.
On 20 April 2016, the Appellant lodged a notice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bartosek v Workers' Compensation Regulator

Details

AGLC: Bartosek v Workers' Compensation Regulator [2022] QIRC 192
Case: [2022] QIRC 192
Decision Date: 3 June 2022

CaseChat Overview and Summary

The matter of Bartosek v Workers' Compensation Regulator came before the Queensland Industrial Relations Commission where the Appellant, Mr Bartosek, appealed the decision of the Workers' Compensation Regulator to deny his application for terminal benefits under section 128B of the Workers' Compensation and Rehabilitation Act 2003 (Qld). The central issue in this appeal was whether Mr Bartosek was diagnosed with silicosis on or after 31 January 2015, which would determine his entitlement to terminal latent onset lump sum compensation under section 732 of the Act.

The Court considered the medical evidence provided by Dr David Deller, who diagnosed Mr Bartosek with Chronic Silicosis on 1 November 2018. The Commission found that while Dr Deller's report dated 17 June 2016 indicated that Mr Bartosek's condition was consistent with silicosis, the formal diagnosis was made on 1 November 2018. This diagnosis occurred after the critical date of 31 January 2015, making Mr Bartosek eligible for the terminal benefits. The Court also noted that the Respondent did not contest the applicability of section 119 to preclude the Appellant from receiving compensation, but rather argued that the diagnosis predated the critical date.

The Commission concluded that Mr Bartosek was indeed diagnosed with silicosis after the specified date, thereby satisfying the criteria under section 732 for entitlement to terminal latent onset lump sum compensation. The appeal was thus allowed, and the decision of the Workers' Compensation Regulator was set aside. The Appellant is to be paid the benefits as a worker with a terminal condition, as stipulated under the relevant sections of the Workers' Compensation and Rehabilitation Act 2003 (Qld). The matter of costs was left to be determined in a further application to the Commission.

Orders

Orders of the court

1. The appeal is allowed.

2. That the decision of the Workers' Compensation Regulator dated 25 February 2021 be set aside.

3. That the Appellant be paid benefits as a worker with a terminal condition pursuant to Chapter 3, Part 3, Division 4 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

4. Failing agreement on costs, to be the subject of a further application to the Commission.

5. Liberty to apply.

Background

Background to the litigation

On 7 September 2020, the Appellant applied for terminal benefits pursuant to s 128B of the WCR Act. This request was rejected by the Insurer on the basis that s 119 of the WCR Act operated to end the Appellant's entitlement to compensation. Following an application for review, the Respondent confirmed the decision to reject the application. The Appellant subsequently filed a notice of appeal to the Queensland Industrial Relations Commission ('the Commission') appealing the decision of the Respondent.Background The parties are in general agreement on the factual background to this matter. Between about 2002 and about 2015, the Appellant worked as a stonemason and was exposed to respirable crystalline silica dust in the course of his employment with Cascade Marble and Granite Pty Ltd from about 2002 to 2007. The Appellant underwent a CT scan of his chest on 3 December 2014 and on 8 January 2015 the Appellant attended upon Dr David Deller, a treating respiratory and sleep physician. On 20 April 2016, the Appellant lodged a notice of claim for damages with the Insurer for silicosis and rheumatoid arthritis. Dr Deller provided a further progress report in relation to the Appellant's condition on 17 June 2016. On 22 March 2017, Professor Roger Allen, thoracic and sleep disorders physician provided a report following an assessment of the Appellant. Dr Deller provided further progress reports following assessments of the Appellant on 22 March 2018 and 24 April 2018. On 3 July 2018, the Appellant's common law claim against his employers and the manufacturers of engineered stone products proceeded to and resolved at a compulsory conference. On 1 November 2018, Dr Deller provided a further progress report in which he diagnosed the Appellant with 'Chronic Silicosis'. On 25 August 2020, Dr Deller provided a further report in which he opined that, on the balance of probabilities, the Appellant was more likely than not to succumb to progressive silicosis than an alternative disease. The Appellant subsequently applied to the Insurer for a latent onset lump sum payment on 7 September 2020.Nature of Appeal The appeal to the Commission is conducted by way of a hearing de novo in which the Appellant bears the onus of proof.[1] The questions to be answered in the determination of the appeal are:(a)For the purposes of s 732 of the WCR Act, was the Appellant diagnosed with silicosis on or after 31 January 2015? and It is firstly noted that the Respondent does not maintain the position that s 119 does not apply to ch 3 pt 3 div 4 of the WCR Act and does not operate to preclude the Appellant from receiving terminal latent onset lump sum compensation.[2] The primary basis upon which the appeal was opposed as outlined in the Respondent's Statement of Facts and Contentions was the purported operation of s 119. The extent of the application of s 119 was also the reason the Respondent's review decision confirmed the Insurer's decision to deny the application. At the hearing, the Respondent confirmed that they did not rely upon s 119 to oppose the appeal and instead opposed the appeal on the basis that the Appellant had been diagnosed prior to 31 January 2015 and hence was not entitled to the payment.[3] [2] T 1-13, ll 42-45.[3] T 1-5, ll 10-18.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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