Plant v Workers' Compensation Regulator

Case [2022] QIRC 169

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Plant v Workers' Compensation Regulator [2022] QIRC 169

PARTIES:  

Plant, Darren Colin

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO.:

 WC/2021/45

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

 20 May 2022

HEARING DATE:

1 – 2 March 2022

MEMBER:

HEARD AT:

McLennan IC

Brisbane

ORDERS:

1.       The appeal is allowed.

2.       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 ch 3, pt 3, div 4 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

4.       The Respondent is to pay the Appellant's costs of the Hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.
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 – where appellant suffered from two conditions expected to reduce his life expectancy –interpretation of s 39A of the Workers' Compensation and Rehabilitation Act 2003 – appellant entitled to compensation

LEGISLATION AND OTHER INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14B

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 5, s 39A, s 128A, s 128B, s 234, s 545, s 558

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

Workers' Compensation and Rehabilitation Regulation 2014 (Qld) s 132

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

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

Blanch v Workers' Compensation Regulator [2021] QIRC 408

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

Coley v Nominal Defendant [2003] QCA 181

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

Minister for Immigration v Li (2013) 249 CLR 332

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

Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301

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

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

Tamas v Victorian Civil and Administrative Tribunal [2003] VSCA 113

Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13
APPEARANCES:

Mr M Grant-Taylor QC and Ms K M Riedel of counsel, instructed by Shine Lawyers for the Appellant.

Mr S A McLeod QC, directly instructed by the Respondent.

Reasons for Decision

Introduction

  1. Mr Darren Plant ('the Appellant') is a 47-year-old gentleman who previously worked as a spray painter.[1]

    [1] Appellant's Submissions, 29 March 2022, 1 [1]; Appellant's Statement of Facts and Contentions, 21 June 2021; Respondent's Further Amended Statement of Facts and Contentions, 7 February 2022; T 1-6, L 28.

  2. The Appellant has been diagnosed as suffering from occupational asthma and…

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Plant v Workers' Compensation Regulator [2022] QIRC 169
Case
[2022] QIRC 169
Decision Date

CaseChat Overview and Summary

In the case of Plant v Workers' Compensation Regulator, the Appellant, Mr Plant, appealed a decision made by the Workers' Compensation Regulator. Mr Plant claimed that he was entitled to compensation for a terminal condition under section 128B of the Workers' Compensation and Rehabilitation Act 2003 (Qld). The Regulator had denied the claim, leading to the appeal before the Queensland Industrial Relations Commission. The central legal issue was whether Mr Plant's condition qualified as a "terminal condition" under section 39A of the Act, which requires certification by a doctor that the condition is expected to terminate the worker's life.

The Court considered the medical evidence provided by Dr Edwards, Dr Brown, and Dr Zappala. Dr Edwards and Dr Brown both certified that Mr Plant's chronic airway obstruction and severe chronic asthma, caused by occupational exposure to isocyanate fumes and cigarette smoke, were conditions expected to terminate his life. Dr Edwards estimated a reduced life expectancy of ten years due to these conditions. The Court accepted that Mr Plant's occupational asthma was a terminal condition, even if it was not the sole cause of his reduced life expectancy. The Court rejected the Regulator's argument that the dominant condition, COPD, must be the one terminating his life.

The Court concluded that the medical evidence supported the Appellant's claim that his condition was terminal under section 39A of the Act. Therefore, the appeal was allowed, and the decision of the Workers' Compensation Regulator was set aside. The Appellant was entitled to benefits as a worker with a terminal condition, and the Respondent was ordered to pay the Appellant's costs of the Hearing.

Orders

Orders of the court

1. The appeal is allowed.

2. 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 ch 3, pt 3, div 4 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

4. The Respondent is to pay the Appellant's costs of the Hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

Background

Background to the litigation

On 9 April 2021, the Appellant appealed against the Respondent's decision to the Queensland Industrial Relations Commission ('the Commission'). Background The Respondent does not dispute the evidence given by the Appellant at the Hearing[5] and so the following background is not in dispute.[5] Respondent's Submissions, 14 April 2022, 1 [4]. The Appellant has worked as a spray painter since he was approximately 15 years old, with the exception of a period of self-employment in the early 2000s.[6][6] T 1-27, L 42-43. During his career, the Appellant regularly used paints that contained isocyanates.[7][7] T 1-12, L 30-37; T 1-13, L 35-37; T 1-14, L 19-24; T 1-16, L 5-6; T 1-18, L 25-27; T 1-19, L 1; T 1-19, L 16-21; T 1-20; L 41-45. The Appellant has been engaged by a number of different employers which have implemented varying standards of workplace safety and equipment.[8] [8] Appellant's Submissions, 29 March 2022, 2 [8]. The Appellant was variously provided with either a paper mask, a P2 or single filter mask, or no mask at all.[9] It was not until later in his working life that the Appellant was provided with a four phase positive pressure mask to wear while spray painting.[10][9] T 1-7, L 18-25; T 1-8, L 40-45; T 1-11, L 15-16; T 1-15, L 33.[10] T 1-19, L 34-38. The Appellant typically applied the paint with a spray gun which used compressed air to atomise the paint into fine, tiny droplets which were released into the air.[11][11] T 1-8, L 19-20. The Appellant gave evidence that the extraction fans were largely ineffective and the painters would be covered by the overspray.[12][12] T 1-26, L 11-15; Exhibit 1. The Appellant would work long hours (sometimes up to 10 hours per day) and even after the Appellant moved into a managerial role, he was still exposed to paint that contained isocyanates.[13][13] T 1-12, L 42-43; T 1-19, L 18-21; T 1-21, L 20-25. When questioned about his smoking habits during the Hearing, the Appellant indicated he had stopped smoking in early 2020 but resumed smoking a cigarette after a meal in around March 2021 and smoked once every second day and in social settings.[14][14] T 1-31, L 18-21, 23-28, 33-46; T 1-32, L 5-10. The following matters are not in dispute: Further, the parties agree that because the Appellant was diagnosed with the subject condition after 31 January 2015 - pursuant to s 732(1) of the WCR Act, s 39A as amended on 30 October 2019 applies.[16][16] Respondent's Submissions, 14 April 2022, 7 [21]-[22].Questions to be decided This appeal is conducted by way of a hearing de novo in which the Appellant bears the onus of proof.[17] [17] Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301. Section 128B of the WCR Act provides for the "Entitlements of worker with terminal condition." Subsection (1) provides, "The worker is entitled to compensation for the latent onset injury calculated only under this division." 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Dr Zappala opined the following:·the Appellant has significant airway disease best characterised as chronic obstructive airway disease and asthma overlap[43] caused by smoking and occupational exposures;[44]·decline in the Appellant's lung function was associated with reduced survival of many years;[45] and[43] Exhibit 3, 4. [44] Ibid 2. [45] Ibid 6. ·"it is possible that Mr Plant may still have reduced life expectancy by several years despite this positive intervention, or be relatively normal – but this will depend entirely on his ability to manage risk and the degree to which lung function improves."[46][46] Ibid. Consideration I will now consider 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.Key opinions As outlined above, Dr Edwards expects that Mr Plant's life will be terminated by "Severe chronic air way obstructions, which has been produced by – which has contributed to significantly by chronic asthma."[47] Specifically, Dr Edwards opines that "eight years of reduced life expectancy is due to chronic airway obstruction and two years is due to his severe chronic asthma."[48] [47] T 2-5, L 43-45.[48] Exhibit 3, 56. Dr Brown expects that "his lung disease and the airways obstruction component of his lung disease" will terminate the Appellant's life.[49] That is caused, in turn, by "Occupational exposure to isocyanate fumes and to cigarette smoke."[50] Further, Dr Brown opines that even in the absence of a smoking history, "his occupational asthma effect would have been severe enough to cause his death in its own right."[51] Dr Brown considered Dr Edwards' views to be conservative and instead opined "that the asthmatic component is, at least, the equal of his smoking related COPD in causing his overall air ways obstruction and, thus, affecting his life expectancy."[52][49] T 2-9, L 15-17.[50] Ibid L 19-20.[51] T 2-11, L 44-46.[52] T 2-10, L 36-49. I do not consider Dr Zappala's evidence to be as relevant to that of Dr Edwards and Dr Brown in the determination of the questions to be decided. This perspective appears to be shared by the parties, as there was no objection to the Appellant's determination not to call Dr Zappala as a witness in this Hearing. The Respondent contends that the medical evidence does not support a conclusion that occupational asthma is a condition which is expected to terminate the Appellant's life.[53] Rather, the Respondent submits that, on a proper construction of the sub-section, the condition for which compensation is sought must be the condition that will terminate the Appellant's life.[54] Instead, the Respondent referred to COPD as being the "dominant condition" contributing to "the expectancy and the reduction of the expectancy".[55][53] Respondent's Further Amended Statement of Facts and Contentions, 7 February 2022, [25a]a).[54] Respondent's Submissions, 14 April 2022, 8 [27].[55] T 1-5, L 44-46.