Blanch v Workers' Compensation Regulator

Case [2021] QIRC 408

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Blanch v Workers' Compensation Regulator [2021] QIRC 408

PARTIES:  

Blanch, Terry

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO.:

 WC/2021/34

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

 2 December 2021

HEARING DATE:

22 September 2021

MEMBER:

HEARD AT:

Power IC

Brisbane

ORDERS:

1.       The appeal is allowed.

2.       That the decision of the Workers' Compensation Regulator 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 terminal condition – whether appellant suffered a terminal condition pursuant to s 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – interpretation of s 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – appellant entitled to compensation

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14B

Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 5, 39A, 128A, 128B, 128C, 190 and 234

Workers' Compensation and Rehabilitation Act and Other Act Amendment Act 2005 (Qld), sch 3, s 4

Workers' Compensation and Rehabilitation and Other Acts Amendment Bill 2005 (Qld)

Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld), ss 36 and 732

Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2019 (Qld)
CASES:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Certain Lloyd's Underwriters v Cross [2012] HCA 56

Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

R v Anderson: ex parte IPEC-Air Pty Ltd [1965] HCA 27

R v Lavender [2005] HCA 37

Schipp & Anor v The Star Entertainment Qld Limited [2019] ICQ 009

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
APPEARANCES:

Mr G.W. Diehm QC of Counsel instructed by Maurice Blackburn Lawyers for the Appellant.

Mr S.A. McLeod of Counsel directly instructed by the Respondent.

Reasons for Decision

Introduction

  1. Mr Terry Blanch ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to confirm an earlier decision of XtraCare ('the Insurer') to reject the Appellant's request for terminal latent onset lump sum compensation in accordance with the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act').

  2. On 25 May 2020, the Appellant made a request for terminal benefits pursuant to s 128B of the WCR Act. This request was rejected by the Insurer, and following an application for review, the Respondent confirmed the decision to reject the request. The Appellant subsequently filed a notice of appeal to the Queensland Industrial Relations Commission…

Continue reading Blanch v Workers' Compensation Regulator

Sign in free to access the full text

Details
AGLC
Blanch v Workers' Compensation Regulator [2021] QIRC 408
Case
[2021] QIRC 408
Decision Date

CaseChat Overview and Summary

Blanch v Workers' Compensation Regulator concerned an appeal against the refusal of the Workers' Compensation Regulator to pay terminal benefits to the Appellant under s 128B of the Workers' Compensation and Rehabilitation Act 2003 (Qld). The Appellant, a former employee exposed to respirable coal and silica dust, developed chronic bronchitis, chronic obstructive pulmonary disease (COPD) and emphysema. The central legal issues were whether the Appellant's condition qualified as a 'terminal condition' under s 39A of the WCR Act, and whether the Respondent was required to accept the doctor's diagnosis of the terminal nature of the condition.

The Court examined the statutory definition of a 'terminal condition', which requires certification by a doctor that the condition is expected to terminate the worker’s life, and that the condition is accepted by the insurer. The Court noted that the Respondent had accepted the doctors' diagnoses that the Appellant's COPD is a condition that will likely terminate his life. However, the Respondent rejected the Appellant's entitlement to benefits by imposing additional criteria, such as the 'imminence' of death, which were not supported by the statute. The Court held that the Respondent had exercised its discretion arbitrarily by imposing criteria beyond the scope of the legislative provision, and that the statutory scheme aimed to balance compensation for workers with reasonable costs for employers. The Court concluded that the Respondent should accept the doctor's diagnosis as the sole criterion for determining entitlement to terminal benefits.

The Court allowed the appeal, set aside the decision of the Workers' Compensation Regulator, and ordered that the Appellant be paid benefits as a worker with a terminal condition. The decision underscored the importance of adhering to statutory language and legislative intent in workers' compensation claims, ensuring consistency and fairness in the application of the law.

Orders

Orders of the court

1. The appeal is allowed.

2. That the decision of the Workers' Compensation Regulator 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 25 May 2020, the Appellant made a request for terminal benefits pursuant to s 128B of the WCR Act. This request was rejected by the Insurer, and following an application for review, the Respondent confirmed the decision to reject the request. The Appellant subsequently filed a notice of appeal to the Queensland Industrial Relations Commission ('the Commission') appealing the decision of the Respondent.Background The Appellant's submissions provide an unchallenged background to this matter. Between about 2003 and about 2013, the Appellant was exposed to respirable coal and silica dust in the course of his employment including with Glencore at the Oaky North Mine. In about 2015, the Appellant developed a persistent cough and began to experience shortness of breath. Since this time, his cough has persisted and his shortness of breath has slowly worsened over the years. The Appellant initially underwent a chest x-ray on or about 20 March 2017 and underwent a chest CT-scan on or about 4 April 2018, which demonstrated abnormalities. On or about 6 July 2018, Dr James McKeon, thoracic physician, diagnosed the Appellant with chronic bronchitis, chronic obstruction pulmonary disease ('COPD') and emphysema. The Appellant was previously a light smoker who commenced smoking when he was approximately 22 years of age and abstained from smoking for seven years before finally ceasing when he was approximately 60 years of age. 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)whether the Appellant's latent onset injury is a terminal condition certified by a doctor as being a condition that is expected to terminate the Appellant's life in accordance with s 39A(1) of the WCR Act; and(b)whether the medical diagnosis of the terminal nature of the condition should be accepted in accordance with s 39A(2) of the WCR Act.[1] Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301.Matters not in dispute The following issues are not in dispute in this matter:(a)the Appellant was a worker who sustained an injury;(b)the Appellant's injury is a 'latent onset injury' being COPD;(c)section 190 of the WCR Act does not prevent the Appellant from obtaining additional compensation by virtue of ss 128B and 128C of the WCR Act in circumstances where his personal injury meets the definition of 'terminal condition'; (d)the medical condition arose after 31 January 2015 and, by virtue of s 732(1) of the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld) ('the WCR Amendment Act 2019'), the current version of s 39A of the WCR Act applies to this matter; and(e)on the basis that no challenge was made in the proceedings to the diagnoses, the Appellant has been diagnosed with a condition that is expected to terminate his life. Matter in dispute The issue in dispute is whether the Appellant has a 'terminal condition' pursuant to s 39A of the WCR Act. The relevant section is outlined as follows: 39A Meaning of terminal condition(1)A terminal condition, of a worker, is a condition certified by a doctor as being a condition that is expected to terminate the worker’s life.(2)A condition is a terminal condition only if the insurer accepts the doctor's diagnosis of the terminal nature of the condition.Medical Evidence

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A consideration of the extrinsic materials confirm the meaning of s 39A(2) that provides that a condition is only a 'terminal condition' if the insurer accepts a doctor's diagnosis of the terminal nature of the condition. Insurers, therefore, have the option to not accept a doctor's diagnosis if they disagree with the terminal nature of the condition. The other grounds upon which the Insurer decided not to accept the doctor's diagnosis in this matter, including the Appellant's age, life expectancy and palliative care needs, are simply not relevant to the decision required under this section. To interpret subsection (2) as allowing insurers to not accept the diagnosis on the basis of arbitrary considerations may also lead to inconsistent criteria being applied between insurers, contrary to the stated objective of providing greater certainty. Allowing insurers the prerogative to reject any claim on grounds not mentioned in the section is entirely inconsistent with the context and purpose of s 39A. To interpret the section in such a way is inconsistent with the purpose of maintaining a balance between providing compensation to workers and ensuring reasonable costs for employers. It is also inconsistent with the beneficial character of the legislation. Conclusion Where a statute provides an unconfined discretion, that discretion ought not be exercised capriciously, arbitrarily of inflexibly.[32] In my view, the Insurer has exercised the discretion to not accept the doctor's diagnosis of the terminal nature of the Appellant's condition arbitrarily by importing a criteria that is beyond the scope of the legislative provision. I do not accept that these arbitrary considerations are consistent with the meaning of s 39A(2). The section refers to 'the doctor's diagnosis' and whether this is accepted by the Insurer. There may be circumstances in which evidence is obtained that challenges a doctor's diagnosis as put forward by the Appellant. A contest between medical expert evidence is not uncommon within the workers' compensation jurisdiction. However, to insert a criteria in addition to the doctor's diagnosis, and in this case a criterion of 'imminence' of death in direct contrast to the amendment removing the time limit in s 39A(1), is contrary to both the legislature's intention and the plain meaning of the words in the section. In this matter, the legislature has removed the time limit in s 39A(1) only to have the Insurer insert an arbitrary time limit in s 39A(2).[32] R v Anderson: ex parte IPEC-Air Pty Ltd [1965] HCA 27. The Respondent has not disputed the diagnosis of Dr McKeon which clearly states that the Appellant is likely to die from his COPD condition. Once the Respondent accepts the doctor's diagnosis of the terminal nature of the Appellant's condition, on the proper reading of s 39A of the WCR Act, there are no other grounds upon which the Insurer can reject the claim. I make the following orders:1. The appeal is allowed.2. That the decision of the Workers' Compensation Regulator 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.

Ratio Decidendi

Legal Principle Established

Dr Robert Edwards, respiratory physician, provided a further supplementary medicolegal report on 2 June 2020 stating that:…I do agree with Dr McKeon that Mr Blanch's health will most likely deteriorate as a result of his COPD.…I do agree that Mr Blanch is likely to dies as a result of his COPD.…In my opinion, during the last year or two of his life Mr Blanch is likely to require home oxygen.…I consider that as his condition deteriorates, Mr Blanch will likely require assistance with his activities of daily living.…I would agree with Dr McKeon's functional performance status that he has provided in his report (i.e. Mr Blanch will be at a low level of dependence for about eight years, a moderate level of dependence for six years, a high level of dependence for four years and complete dependence during the last month of his life). The reason for my current assessment and the fact that I agree with Dr McKeon is that people with significant emphysema do have a slightly reduced life expectancy and I would agree that Mr Blanch's life expectancy would be reduced by approximately two years due to the COPD.There are no readily ascertainable additional facts or materials which would assist me in reaching a more reliable conclusion. The opinions stated in this report are genuinely held by me.[4][4] Ibid pages 95-96. Consideration The decision to be made is whether the Appellant's condition satisfies the meaning of 'terminal condition' pursuant to s 39A of the WCR Act. Section 39A(1) Section 39A(1) defines a 'terminal condition' as a condition certified by a doctor as one that is expected to terminate the worker's life. As outlined above, Dr McKeon opined, and Dr Edwards agreed, that the Appellant is likely to die as a result of his COPD and his life expectancy would be reduced by approximately two years due to the underlying condition of COPD. The medical evidence supports the conclusion that the Appellant suffers from a condition that is expected to terminate his life. In the decisions of both the Insurer and the Respondent, the diagnoses of Dr McKeon and Dr Edwards were accepted. Further, the Respondent states in its response to the Appellant's Statement of Facts and Contentions that it admits the following contentions of the Appellant:[5]2.3 Here there was the necessary certification by a doctor or doctors, being:(a)On 8 May 2020, Dr McKeon, thoracic physician, opined that the Appellant will "probably die of his Chronic Obstructive Pulmonary Disease" and the Appellant's "Chronic Obstructive Pulmonary Disease will reduce his life expectancy by about two years"; (b)On 2 June 2020, Dr Robert Edwards, thoracic physician, opined that the Appellant "is likely to die as a result of his COPD" and that his "life expectancy would be reduced by approximately two years due to his COPD".[6] [5] Respondent's Statement of Facts and Contentions [25].[6] Appellant's Statement of Facts and Contentions [2.3]. The Respondent confirmed in oral submissions that it accepts that the evidence supports a conclusion that the Appellant's latent onset injury is a condition expected to terminate the Appellant's life for the purposes of s 39A(1) of the WCR Act.[7] No contrary medical evidence was obtained. [7] T1-11, ll 25-27.