Rolph v WorkCover Queensland

[2009] QMC 11

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Rolph & Ors v WorkCover Queensland [2009] QMC 11

PARTIES:

FREDERICK JOHN ROLPH

(appellant)

LESLIE JAMES CORNELIUS

(appellant)

COLIN FRANCIS O’NEILL

(appellant)

DENIS JOHN STACK

(appellant)

GLEN STEPHENSON

(appellant)

v

WORKCOVER QUEENSLAND

(respondent)

FILE NO/S:

MAG250541/08(2), MAG181253/08(8), MAG181257/08(3), MAG181273/08(9), MAG250483/08(2)

DIVISION:

Industrial Magistrates Court

PROCEEDING:

Appeal against decision of WorkCover

ORIGINATING COURT:

Industrial Magistrates Court at Brisbane

DELIVERED ON:

13 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2009, 2 June 2009

MAGISTRATE:

Lee G

ORDER:

Appeals allowed.  Decisions of WorkCover set aside and matters returned to WorkCover with directions.

CATCHWORDS:

INDUSTRIAL LAW - WORKERS COMPENSATION - lump sum compensation - Notice of Assessment - solar induced skin disease - what constitutes relevant injury - underlying pathological condition predisposing to future specific lesions or the specific lesions themselves that develop from time to time - whether permanent impairment - whether injury stable and stationary

Workers Compensation and Rehabilitation Act 2003 (Qld), s 31, s 32, s 37, s 38, s 39, s 140(2), s 178, s 179, s 181, s 185, s 550, s 558(1)

Workers Compensation and Rehabilitation Regulation 2003 (Qld), r 92 to 97, Schedule 2 (Table of injuries);

Browne v Dunn (1894) 6 R 67, cited

Comcare v Etheridge (2006) 227 ALR 7; [2006] FCAFC 27, considered

Favelle Mort Limited v Murray (1976) 133 CLR 580; [1976] HCA 13, cited

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; [2000] HCA 45, cited

Martindale v Burrows & Waller [1997] Qd R 243; (1996) QSC 113 considered

Q-COMP v Robinson [2007] QIC 43; 186 QGIG 695, considered

Smith v Advanced Electrics Pty Ltd [2003] QCA 432, cited

WorkCover Queensland v Ruseckas, Queensland Industrial Court, No C14 of 1997, 18 April 1997, followed

Zickar v MGH Plastic Injuries Pty Ltd (1996) 187 CLR 310; [1996] HCA 31, cited

COUNSEL:

M Grant –Taylor SC for the appellants

K Holyoak for the respondent

SOLICITORS:

Turner Freeman Lawyers for the appellants

McInnes Wilson Jensen for the respondent

1. There are five appellants in this case. They are Frederick John Rolph, Leslie James Cornelius, Colin Francis O’Neill, Denis John Stack and Glen Stephenson (the appellants). With the exception of Mr Rolph who had appealed on additional grounds, all issues for determination are common to all appellants so that these appeals were heard together.

2. The appellants are elderly gentlemen who, in years gone by, have been exposed to the sun’s radiation over many years while employed in outdoor occupations. It is not disputed that this resulted in “injury” as defined in section 32 of the Workers Compensation and Rehabilitation Act 2003 (the Act). Closing submissions for the appellants[1] describe those injuries as including “Solar induced skin disease that is malignant” and “Area scarring to any part(s) of the body following surgery or trauma.  Atrophic or hypertrophic, marked discoloured”[2] while the respondent’ submissions characterise the injuries as “solar induced skin disease” when considering what the injury as defined is[3].

   [1] At paragraph 3;

   [2] See Schedule 2 Part 4 (Other injuries) Division 2 (System injuries) & Part 5 (Prescribed disfigurement) Division 2 respectively of the Workers’ Compensation and Rehabilitation Regulation 2003; formerly PI Code Nos 4706 & 5104 respectively;   

   [3] At paragraphs 17 & 18 under the heading “What is the ‘Injury’?”; 

3. The appellants applied for compensation at various times under Chapter 3 Part 5 of the Act and those claims were accepted which of course necessarily includes a finding that each appellant had suffered an injury within the meaning of section 32(1) of the Act. This is not contentious[4]. However, WorkCover’s letters accepting the appellants’ original claims for compensation are not in evidence to demonstrate what the findings of “injury” were which formed the basis for accepting those claims. I note that in all the original applications for compensation with the exception of Mr Rolph’s, the nature of injury was described as “solar induced skin disease”[5]. In Mr Rolph’s case, the nature of injury was described as “various skin cancers”[6] in his application for compensation. I also note that, with the exception of Mr Cornelius’ application, all original claims were for medical expenses only. In Mr Cornelius’ case, he included “lump sum”.

   [4] See paragraph 4 of the Appellants’ closing outline of submissions;  all claims were in 2006 except for Mr Stephenson which was on 11 July 2007;

   [5] At paragraph 19; Mr O’Neill’s application form was different – at paragraph 29;   

   [6] At paragraph 19;

4. Then on various dates and most likely after the appellants’ original claims for compensation had been accepted, the appellants asked the insurer (WorkCover) as they were entitled to do pursuant to section 179 of the Act[7] to have their injuries assessed to decide if their injuries had resulted in a degree of permanent impairment.

   [7] In Part 10 (Entitlement to compensation for permanent impairment) Chapter 3 (Compensation);

5. As a result of those requests and pursuant to section 185 of the Act, WorkCover made decisions about the appellants’ permanent impairments and issued Notices of Assessment to all appellants on various dates[8]. With the Notices of Assessment were included Forms A & B respectively entitled “Decision about permanent impairment” & “Decision about the offer”. These decisions disclose that for Mr Rolph, Mr Stephenson and Mr O’Neill the assessments by Doctor R. McCartney (occupational physician) were relied on. In the case Mr Cornelius and Mr Stack, the assessments by Dr M. Andrews (dermatologist) were relied on. These two doctors were undoubtedly engaged by WorkCover under section 179(2)(c) “to have the degree of permanent impairment assessed” for each appellant. Relevantly, WorkCover’s “decisions” reflecting those assessments are as follows:

   [8] 2 December 2008, 29 August 2008, 29 August 2008, 29 August 2008 & 2 December 2008 respectively; 

6. Mr Rolph –

Injury description	Degree of permanent impairment etc	Lump sum compensation
Surgical scarring, skin grafts and solar skin damage (former PI Code 5104)	8.00%	$  9,103.20
Severe deformity of the outer ears (former PI Code 5106)	10.00%	$11,379.00
Depression deformity from the cheek and frontal bones (former PI Code 5105)	10.00%	$11,379
Loss of right eye (former PI Code 3102)	36.00%	$30,027.60
Total	$61,888.80

Mr Cornelius –

Solar related scarring[9] 10.00% $10,920.50

[9] Former PI Code No. 5103;

Mr O’Neill –

Solar related scarring 10.00% $  8,860.50

Mr Stack –

Solar related scarring   5.00% $  5,460.25

Mr Stephenson –

Solar related scarring   8.00% $  9,103.20

1. The appeals to this court, brought pursuant to section 550 of the Act[10], challenge those Notices of Assessment principally on the ground that WorkCover has failed or refused to include an assessment of permanent impairment for “Solar induced skin disease that is malignant”[11] (former PI Code 4706). WorkCover resists this principally on the basis that the appellants’ injuries[12] are not capable of being assessed for permanent impairment because they are not stable and stationary and not likely to improve with further treatment contrary to section 38 of the Act.

   [10] In Division 1 (Appeals to Industrial Magistrate or Industrial Commission) of Part 3 (Appeals); WorkCover’s decisions are “non reviewable decisions” within the meaning of section 548(b) and are thus reviewable to an Industrial Magistrate under section 550 of the Act;

   [11] This applies to all appellants; it is included in ground 1 of Mr Rolph’s Notice of Appeal;   

   [12] This term is used loosely at this point because section 38 refers to “permanent impairment”;

2. In addition, Mr Rolph challenges WorkCover’s failure or refusal to include an assessment for “Severe, bilateral gross facial deformity following burns or other trauma”[13] (former PI Code 5107). WorkCover, it appears, resists this on the basis that the evidence at trial does not support such assessment. At trial Mr Rolph abandoned his other grounds of appeal[14].     

   [13] Also included in ground 1 of his Notice of Appeal; see Schedule 2 Part 5 (Prescribed disfigurement) Division 2 (Prescribed disfigurement) of the Workers’ Compensation and Rehabilitation Regulation 2003; formerly PI Code No 5107;

   [14] Grounds 2, 3 & 4 in his Notice of Appeal;

3. These appeals are not appeals in the strict sense. They are hearings de novo to be conducted as a full trial where both parties call evidence in support of their cases and witnesses are subject to cross examination: see for example  Labaj v. WorkCover Queensland [2003] QIC 155; 174 QGIG 370 (17 September 2003) per Hall P[15]. It is trite to observe that the appellants bear the onus of proof on the balance of probabilities: for examples in this jurisdiction see Labaj v. Q-COMP [2005] QIC 37; 179 QGIG 365 (20 June 2005) and Briffa v. Q-COMP [2005] QIC 55; 180 QGIG 70 (19 August 2005) per Hall P.

   [15] While that case dealt with the WorkCover Queensland Act 1996 (now repealed), the comments equally apply to the current Act;

4. Mr Grant-Taylor of Senior Counsel appeared for all five appellants and Mr Holyoak of Counsel appeared for WorkCover. The trial proceeded on 1 & 2 June 2009. At the conclusion of the evidence I heard final addresses and reserved my decision.  

   Statutory Scheme for Assessment of Permanent Impairment

5. To properly understand the issues in this case, an examination of the legislative scheme is necessary before considering the evidence which consists entirely of the medical evidence of three medical practitioners and two exhibits containing various reports and other documents.    

6. The appellants’ claims for workers compensation were accepted by WorkCover. It is not disputed that they are “workers” as defined in section 11 and have sustained an “injury” as defined in section 32 of the Act[16]. Section 32 relevantly provides:

   [16] In Chapter 1 (Preliminary) Part 4 (Basic concepts) Division 6 (Injuries, impairment and terminal condition) Subdivision 2 (Injury) ;  

   32 Meaning of injury
   (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

   (2) …….

   (3) Injury includes the following--

   (a) a disease contracted in the course of employment,
   whether at or away from the place of employment, if the
   employment is a significant contributing factor to the
   disease;

   (b) …

7. The definition of “personal injury” in Schedule 6 of the Act is not helpful here.

8. Reference has also been made to section 31 of the Act[17]:

   [17] In Chapter 1 (Preliminary) Part 4 (Basic concepts) Division 6 (Injuries, impairment and terminal condition) Subdivision 1 (Event resulting in injury);  

   31 Meaning of event
   (1) An event is anything that results in injury, including a latent
   onset injury, to a worker.

   (2) An event includes continuous or repeated exposure to
   substantially the same conditions that results in an injury to a
   worker.

   (3) A worker may sustain 1 or multiple injuries as a result of an
   event whether the injury happens or injuries happen
   immediately or over a period.

   4) If multiple injuries result from an event, they are taken to have
   happened in 1 event.  

9. Sections 37, 38 & 39 in Subdivision 4 (Impairment from injury)[18] provide definitions:

   [18] In Chapter 1 Part 4 Division 6;

   37 Meaning of impairment

   An impairment, from injury, is a loss of, or loss of efficient
   use of, any part of a worker’s body.

   38 Meaning of permanent impairment

   A permanent impairment, from injury, is an impairment that
   is stable and stationary and not likely to improve with further
   medical or surgical treatment.

   39 Meaning of work related impairment

   (1) A worker’s work related impairment from injury is the
   worker’s entitlement to lump sum compensation under section
   180 expressed as a percentage of maximum statutory
   compensation calculated under section 183.

   (2) To remove any doubt, it is declared that a work related
   impairment only relates to injury arising out of, or in the
   course of, the worker’s employment within the meaning of
   this division.

10. Part 10 (Entitlement to compensation for permanent impairment)[19] in Chapter 3 (Compensation) of the Act deals with, among other things, the assessment of permanent impairment. Relevantly, under sections 178 & 179 the appellants asked WorkCover to assess their injuries to see if those injuries had resulted in permanent impairment to some degree. It is important here to cite the relevant parts of those sections:

    [19] Sections 178 to 193;

    178 Entitlement to assessment of permanent impairment and
    lump sum compensation

    (1) Under this part, an insurer or a worker is entitled to ask for an
    assessment to decide if a worker has sustained a degree of
    permanent impairment from injury………

    179 Assessment of permanent impairment

    (1) An insurer may decide, or a worker may ask the insurer, to
    have the worker’s injury assessed to decide if the worker’s
    injury has resulted in a degree of permanent impairment.

    (2) The insurer must have the degree of permanent impairment
    assessed—

    (a) …

    (b)…..

    (c) for another injury—by a doctor.

    (3) The degree of permanent impairment must be assessed in the
    way prescribed under a regulation and a report must be given
    to the insurer stating—

    (a) the matters taken into account, and the weight given to

    the matters, in deciding the degree of permanent

    impairment; and

    (b) any other information prescribed under a regulation.

11. Relevantly, section 179(2)(c) requires WorkCover to have the “degree of permanent impairment” assessed by a doctor and by subsection 179(3) in a manner prescribed by regulation. It is not clear whether the use of the words “must have” in subsection 179(2) means that WorkCover must choose and employ its own doctor to assess permanent impairment or whether consideration given to such assessment by an appropriately qualified doctor employed by a worker would satisfy that provision. It appears from the appellants’ Notices of Appeal that reports from different doctors were commissioned by the appellants and provided to WorkCover in support of their requests for assessment under section 179.

12. In any event, in this case WorkCover has relied on the assessment of doctors it has employed. 

13. Then, upon receipt of a report from the doctor who conducted the assessment for permanent impairment WorkCover is required under section 185 to give to the worker a Notice of Assessment in the approved form within 10 days.

14. The appropriate regulations for assessments are the Workers’ Compensation and Rehabilitation Regulation 2003 (Reprint No. 2G as in force on 25 November 2008) (the regulations) and in particular Part 5 (Compensation) Division 3[20] (Entitlement to compensation for permanent impairment) and Schedule 2 (Table of injuries).

    [20] Regulations 92 to 97;

15. For the ground of appeal common to all appellants, namely “solar induced skin disease that is malignant”, Part 4 (Other injuries) in Schedule 2 “skin injuries” applies. The methods to be used in assessing the degree of permanent impairment are those as stated in Chapter 13 of the AMA guide[21] a copy of which forms part of exhibit 2: section 3(8)(i) in Schedule 2 & subsections 92(2), (3) & (8)) of the regulations.   

    [21] AMA guide “means the “Guides to the Evaluation of Permanent Impairment” (4^th edition) published by the American Medical Association – reg 3; 

16. For Mr Rolph’s second ground of appeal, namely “severe, bilateral gross facial deformity following burns or other trauma”, Part 5 (Prescribed disfigurement) in Schedule 2 of the regulations applies. Relevantly, the methods of assessment for permanent impairment in the AMA guide do not apply to Part 5.  

    The Issues

17. There are two issues in the first and predominant ground of appeal relevant to all appellants. First, is the relevant “injury” the underlying pathological condition that predisposes the appellants to specific lesions in the future or is it the specific future lesions themselves that develop from time to time? The second issue is whether or not the relevant “injury” is stable and stationary and not likely to improve with further medical or surgical treatment in accordance with section 38. If so, then the section 38 definition of permanent impairment is satisfied and the degree of permanent impairment can then be assessed for each appellant. If not, then an assessment of the degree of impairment cannot be made under section 179.

18. For Mr Rolph’s second ground of appeal, there is a conflict in the medical evidence. The issue will revolve around which medical evidence is accepted.   

19. Dr J. Muir (dermatologist) was called to give evidence in support of all five appellants.

20. WorkCover called Dr M. Andrews (dermatologist)(by phone) and Dr R. Mc.Cartney (Occupational physician).  

21. Two exhibits were tendered.

    Discussion   

    Whether Impairment from injury “Solar Induced Skin Disease etc” is not assessable as Permanent Impairment because it is not stable and stationary and not likely to improve with further medical or surgical treatment    

22. The thrust of the appellants’ case is that, having regard to a number of authorities about what constitutes an injury and in reliance on the evidence of Dr Muir, for the purposes of the injury known as “solar induced skin disease that is malignant” the sun damage over years of exposure to the sun short of malignancy is the “event” as that term is defined in section 31. The submission continues to the effect that it is only with the subsequent development of malignancy by way of specific lesions because of that “event” has the particular injury namely, “solar induced skin disease that is malignant”, been sustained[22]. These specific lesions are in the form of basal cell carcinomas, squamous cell carcinomas and malignant melanomas.

    [22] Paragraphs 30 & 31 of submissions made on the appellants’ behalf;

23. Further, it was contended, that each individual skin malignancy that develops or arises from time to time is an isolated problem and once successfully treated, that particular lesion can be considered as stable and stationary[23]. I gather the thrust of those submissions is that the underlying damage to the skin over prolonged years of exposure to the sun is not the “injury” described as “solar induced skin disease that is malignant” prior to specific malignant lesions subsequently developing. The prolonged exposure to the sun which causes certain changes to the skin before any malignant lesions develop is merely the “event”. 

    [23] Paragraph 32 of submissions made on the appellants’ behalf;

24. The submission continues to the effect that at the point in time of an assessment, the enquiry would be to ascertain whether or not any specific lesion present had been successfully treated so as to be “stable and stationary etc” in accordance with section 38. If those lesions are determined “stable and stationary etc.” then the assessment for permanent impairment for those specific lesions at that time may be 0%. Then, at a subsequent time to that assessment, any malignant lesions present at the time of the assessment that were not stable and stationary resulting in them being ignored at the time of that assessment and/or malignant lesions not present at the time of the assessment but which subsequently develop may become stable and stationary upon successful treatment. When that occurs a further “solar induced skin disease that is malignant” falls to be assessed upon a further application for compensation being lodged for a new injury[24]. It was submitted there is no absurdity in situations like this where a worker continually reclaims compensation because WorkCover is fully protected. Sections 140(2) and 181 of the Act caps the maximum amount of compensation a worker can be paid regardless of the number of times the worker re-applies[25]. This view is also supported by the fact that the injury called “Moderate solar induced skin disease that is non-malignant”[26] (former PI Code 4703) with 0% maximum degree of permanent impairment in column 2 of Reprint No 1E of the regulations has now been removed from the Table of Injuries.  It is absent from the version in Reprint No. 1G of the regulations.  The submission was that the legislature recognised the reality that such an injury could never become stable and stationary and that this is contrary to Dr McCartney’s view that “solar induced skin disease that is malignant” will never be stable and stationary[27].      

    [24] Paragraphs 33 to 34 of submissions made on appellants’ behalf;

    [25] Paragraph 35 of the appellants’ submissions;

    [26] See Reprint No 1E of the regulations;

    [27] Paragraphs 36 & 37 of the appellants’ submissions; 

1. For reasons that follow I do not agree with the thrust of those submissions. Essentially I agree with the respondent’s submissions regarding the characterisation of “injury” although I do not agree with the respondent’s conclusion that the appellants’ injuries as properly characterised are not stable and stationary.

2. In support of its submission that “injury” is the underlying pathology and after referring to the definition of injury in section 32 in citing a number of authorities the respondent submitted at paragraphs 11 & 12 of submissions made on its behalf as follows:

   11The words “disease” and “injury” are not otherwise defined.  They have their common or popular usage which has been elaborated upon in a number of authorities.[28]

   12In short, an injury, in common usage, is a harm sustained.[29]  Injury has long been understood in workers’ compensation legislation, as a “sudden or identifiable physiological change” which does not have to be caused by external causes and can be internal.[30]  Thus an injury is a physiological change which is harmful which is sudden or identifiable.  

   [28] Zickar v. MGH Plastic Injuries Pty Ltd (1996) 187 CLR 310; Kennedy Cleaning Services Pty Ltd v. Petkoska (2000) 200 CLR 286; Comcare v. Etheridge (2006) 149 FCR 522; Robinson v. QCOMP (WorkCover)(unreported) 8 August 2007 Magistrate Cull file number MAG 17295/06(6) at paras [38]-[44];  

   [29] Etheridge (supra) at paragraph [35];

   [30] Kennedy Cleaning Services (supra) at paragraph [35] per Gleeson CJ & Kirby J.;

3. The respondent submits that the injury is the underlying pathology in the skin comprising the damage to the skin by solar radiation described as “solar induced skin disease”. The definition of “injury” in section 32 includes “disease”. It is erroneous to separate specific malignant lesions generated by the underlying pathology as submitted by the appellants. The words “that is malignant” under “skin” in the Table of Injuries in Part 4 does not affect this. It is the “solar skin disease” that must be “malignant”, not the individual lesions that develop as a result of that underlying pathology[31]. 

   [31] Paragraphs 17 to 23 of the respondents submissions;

4. I observe at this point that the word “malignant” seems to be a familiar term used interchangeably with the word “cancer” and is often used in conjunction with describing a tumour as a malignant one as opposed to a benign one. The word “malignant” is an adjectival medical term. Dictionary meanings indicate a broader meaning, for example, “disposed to cause suffering or distress ….deadly, tending to produce death, as a disease, tumour etc[32] and “Of a disease: Virulent; exceptionally contagious or infectious. Now used to differentiate a definite variety of a disease, as [malignant] cholera, [malignant] smallpox”[33]. In similar vein the word “malignant” is also described as “a severe and progressively worsening disease”[34]. Read in context with the description of the injury in the Table of Injuries the use of the word “malignant” in “solar induced skin disease that is malignant” lends support for the respondent’s contention that the injury here is the underlying pathology that predisposes to the development of specific lesions in the future even though those specific lesions may well be described as malignant in themselves.      

   [32] The Macquarie Concise Dictionary, 2^nd edition; 

   [33] Shorter Oxford English Dictionary 3^rd ed. Page 1194;

   [34] Wikipedia – ;

5. This is succinctly put by Dr Mc Cartney[35] as follows:

   [35] Report of Dr McCartney dated 12 November 2008 in respect of Mr Rolfe; 

   Sun damage is the product of lifelong sun exposure.  There accumulative injury to the skin, from early in life.  Ongoing exposure throughout life contributes to it; as such it is not a discrete injury.

   Individual lesions are discrete manifestations of the skin disease.    

   Once established, the sun-damage causes life long increased predisposition to the development of solar-related skin malignancies (insidious and latent mutations that manifest unpredictably…..     

6. Further, it is submitted by the respondent that the proper approach is to identify as a matter of fact what the injury is rather than going to the description of “solar induced skin disease that is malignant” in the Table of Injuries first. When that question has been determined, then consideration should then be given to determine if section 38 is satisfied. To do otherwise inverts the nature of the correct inquiry. If the identified injury is not capable of assessment because section of 38, then there is no need to consult the Table of Injuries[36].

   [36] Paragraphs 24 to 30;

7. The respondent’s submissions then go into some detail as to why the appellants’ approach is anomalous or irrational: see paragraphs 31 to 36. For example, if the “solar induced skin disease that is malignant” is assessed for permanent impairment the worker would be precluded from receiving any further compensation including future medical expenses: sections 144B and 181. The submission continues to the effect that this would not be beneficial to the worker.

8. So, on the one hand the appellants say that their relevant “injuries” characterised as “solar induced skin disease that is malignant” are the specific lesions that develop from time to time and not the underlying pathology that predisposes them to the development of the specific lesions. On the other hand the respondent says that the relevant injury is the underlying pathology that predisposes the appellants to development of specific lesions which themselves may well be separate injuries.

9. It is not contentious that all appellants have severely damaged skin due to excessive exposure to the sun to varying degrees and that they are predisposed to development of further lesions in the future. 

10. On the assumption that permanent impairment could be assessed for “solar induced skin disease that is malignant” (former PI Code 4706) Dr Muir, called for the appellants, assessed permanent impairment for each as follows: Mr Rolph (25%), Mr Cornelius (25%), Mr O’Neill (10%), Mr Stack (15%) and Mr Stephenson (20%). 25% is the prescribed maximum degree of permanent impairment in column 2 of the Table of Injuries for the purposes of lump sum compensation under the Act.

11. Both Dr Andrews and Dr McCartney were of the view that there is a definite underlying pathology that predisposes to future development of specific lesions and this itself is the injury. They also acknowledge, as does Dr Muir on this point, that specific lesions will develop from time to time into the future and these can also be discrete injuries themselves. 

12. The appellants and respondent cited a number of authorities in support of their submissions including Martindale v. Burrows & Waller [1997] 1 Qd R 243, Kennedy Cleaning Services Pty Ltd v. Petkoska (2000) 200 CLR 286, Comcare v. Etheridge (2006) 227 ALR 7 and Zickar v. MGH Plastic Industries Pty Ltd (1996) 187 CLR 310.

13. I note that some discussion of these cases are to be found in Q-COMP v. Robinson [2007] QIC 43 (4 December 2007) per Hall P. which is a solar induced skin damage case. Martindale was a personal injuries case in which Derrington J., relying on Favelle Mort Limited v. Murray (1976) 133 CLR 580, found that the injury constituting the plaintiff’s 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 mesothelioma[37]. In line with the appellants’ submissions in this case Hall P. in Robinson expressed the view[38] that it is dangerous to resolve statutory claims by analogy with common law concepts: see Kennedy Services. Also it was observed that each case has to be determined on an interpretation of the particular statute concerned and the facts as found in each particular case.

    [37] Paragraph 15 of the appellants’ submissions;

    [38] At page 5 of 8 – ;

14. On the question whether DNA change was an “injury” for the purposes of statutory workers compensation, without seeking to revisit the outcome in Martindale and without deciding the point, Hall P. in Robinson expressed some doubt about its application here when he said[39]:

    This is neither the appropriate occasion nor the appropriate place to debate yet again whether an external cause initiating a morbid condition of the body is itself an injury within the normal meaning of that noun.  One may, however, comfortably notice that upon the simpler question whether the entry of a virus into the human body is to be characterised as an injury because “by the infection of more and more body cells the injury leads to what may be described as a disease” …., more recent authority has distinguished the factual situation in [Favelle], ibid, which concerned viral meningo-encephalitis and the situation in [Martindale], which concerned mesothelioma following upon the ingestion of asbestos because in the latter case the disease “is contracted by gradual process with the consequence of the precise incident whereby it was “externally excited” cannot be identified.              

    [39] At page 5 of 8;

15. The appellants’ submissions observe that the reasoning in Favelle has been distinguished in Comcare v. Etheridge (a mesothelioma asbestos ingestion case) where the Full Federal Court held “the mere experiencing of a condition necessary for the contraction by gradual process of a disease was not, without more, capable of constituting an “injury” within the meaning of Commonwealth Employees’ Compensation Act 1930”[40] (my emphasis). The precise incident that extremely excites the condition could not be identified. The court answered “no” to the question “Whether the mere experiencing of an event or condition necessary for the development of a disease contracted by gradual process is capable of constituting an “injury”.(my emphasis)

    [40] Paragraph 22 of the appellants’ submissions; paragraph 40 per Branson J. with whom the other members of the court agreed – ;

16. One reason given for that conclusion includes the fact that the mere experiencing of an event or condition necessary for the development of a disease contracted by gradual process may not result in physiological change. The submission is that having regard to section 32 as a whole, the distinction between disease and injury therein suggests a legislative intention to treat an incident that gave rise to the condition necessary for the development of a disease (sun exposure) contracted by gradual process an “injury” independent of the resulting disease itself (skin cancer)[41].

    [41] Paragraph 25 of the appellants’ submissions;

17. The medical evidence in the present case in relation to all appellants is that the event or condition necessary (prolonged sun exposure) has well and truly passed so much so that their cells are beyond repair predisposing them to development of future lesions with certainty. Unlike Etheridge which focuses on the contraction by gradual process of a disease, the underlying “disease” resultant from the antecedent condition necessary, the sun exposure, has already developed and is present. This is not a case where it is too early to tell if cells have not repaired or are irreparable due to prolonged sun exposure. The appellants in this case are elderly men who have been retired from their work for many years and it was their exposure to the sun in their work activities which has placed them in this situation. Much time has passed to ascertain whether their cells will or will not repair. The objective medical evidence at this late stage in the overall timeframe is that their skin system is irreparably damaged which will definitely result in manifestations in future. There is absolutely no doubt that each of them will definitely develop future lesions by virtue of irreparable cell damage due to prolonged sun exposure in the dim distant past. While it is not contested that each new lesion is a discrete injury in itself, it is the underlying pathology, namely the unequivocal predisposition to future manifestations by way of future lesions due to irreparable cells, which I think is the injury having regard to the extension of the ordinary common meaning of “injury” by the inclusion of “disease” in the definition of “injury”. 

18. The court in Etheridge was concerned with a Commonwealth workers’ compensation statute which contained a definition of “injury” that, unlike section 32 of the 2003 Act, did not extend or alter the meaning of injury according to common usage. In fact, there were separate provisions in that legislation dealing with “disease” and disease claims[42]. The court came to its view based on interpretation of that statute. I also note that the court qualified its conclusion at [45] above where it said the condition necessary for contraction by gradual process of a disease is not an injury “without more”. In the present case, the medical evidence is that, as a result of prolonged sun exposure in years gone by, the appellants are definitely predisposed to developing future lesions due to underlying pathology. Even if the criticisms of Martindale are accepted and conclusive, in my view the state of the appellants’ underlying pathology appears to be in a far more advanced state than the position taken in Martindale i.e. where the cause of action accrued at a very early stage, namely, when the ingested asbestos particles began to cause the condition of the lungs which then led to the development of mesothelioma. The respondent submits, and I accept, that the unequivocal predisposition to the development of future specific lesions due to long term sun exposure is the relevant “injury” as defined in section 32 of the Act which includes “disease”. On balance I accept the analyses of Dr Andrews and Dr McCartney regarding what is “injury”.

    [42] Paragraphs 32 to 52 of the judgment –  ;   

19. In addition, I also note that in all of Dr Muir’s reports he seems to have been asked to answer specific questions directed to the whole point of the appellants’ submissions on “injury”. For example, in referring to his report on Mr Cornelius dated 3 March 2009 he was asked:

    3.        Whether past squamous cell carcinomas, basal cell carcinomas and solar keratoses are discrete injuries which once treated successfully reach maximum medical improvement and become stable and stationary – allowing assessment under PI Code 4706?

20. In his response Dr Muir focused on specific lesions that develop from time to time particularly regarding whether they were stable and stationary. He appears not to have expressly articulated in his reports the question of whether the underlying pathology is itself an injury. This is supported by further questions he was asked for the purposes of his supplementary report dated 7 April 2009. For example:

    2.        Do you agree that Mr Cornelius’s solar keratoses and cutaneous malignancies such as basal cell carcinomas and squamous cell carcinomas are only diagnosable at the time of presentation of tumour and that it is not possible to diagnose these conditions at the time of the sun exposure as a sequence of events or processes must take place over a period of time before malignancy presents itself and in some cases malignancy never presents itself due to the body’s repair mechanisms?

    3.        Do you consider it appropriate to define the presentation of a malignancy as the “injury” and Mr Cornelius’s work related sun exposure as the “event” to section 31 of the 2003 Act?  

21. In referring to section 31 of the Act, in answer to question 3 above Dr Muir said, among other things:

    Using this definition sun damage is clearly an “event”.  Sun exposure results in damage to the skin.  Solar damage is manifest by the typical changes of wrinkling, dyspigmentation, weakening of the skin etc.  The other effect of the solar exposure is damage to DNA and the subsequent development of solar related skin neoplasia, such as solar keratosis and solar related malignancy such as basal cell carcimoma, and squamous cell carcinoma.  These lesions (solar keratosis, basal cell carcinoma, squamous cell carcinoma, malignant melanoma) can be then be considered “injuries” using section 31.

22. While it is not disputed that specific lesions that arise from time to time resulting from sun damage can be diagnosed and treated, the point is that Dr Muir does not appear to have expressed a view in his reports as to whether the underlying pathology is itself an injury as defined in section 32 of the Act. In reading all of his reports he appears to generally adopt a view that the legislation “deals poorly with solar related skin disease” and that the question of whether the “skin condition” is stable and stationary is a vexed one[43]. He then seeks to resolve the issue by directing his comments to specific lesions that develop from time to time.    

    [43] Report dated 3 March 2009 at pages 3 & 4 (in exhibit 1);

23. In any event, in their reports Dr Andrews and Dr McCartney have expressly considered both scenarios as to what is injury i.e. the specific lesions or the underlying pathology that predisposes to lesions developing in the future. I accept and find that the underlying pathology is the injury for the purposes of this inquiry.

24. The next issue to determine is whether, in accordance with section 38, the “injury” is “stable and stationary and not likely to improve with further medical or surgical treatment”. At the hearing an issue was raised as to whether it was the “injury” or “impairment” that has to be stable and stationary for the purposes of section 38.

25. A survey of the history of the definitions of “Impairment” and “Permanent Impairment” is useful. Those definitions were first introduced into section 5 of now repealed Workers Compensation Act 1990 (the 1990 Act) by the Workers’ Compensation Amendment Act (No. 2) 1995[44] as follows:

    “impairment”, from injury for a worker, means a loss of, or loss of efficient use of, any part of the worker’s body

    “permanent impairment”, from injury, means a permanent impairment from an injury that is stable and stationary and not likely to improve with further medical or surgical treatment.        

    [44] Section 4(1);

26. The Explanatory Notes to clause 4 of the Workers’ Compensation Amendment Bill 1995 explained those definitions as follows:

    Insert a definition of “impairment” for the purpose of assessment of impairment in accordance with the new table of injuries, the payment of statutory lump sums under part 9 and entitlements under part 11.

    Insert a definition of “permanent impairment” to clarify that permanent impairment only arises when the injury is stable and stationary and not likely to improve with further medical or surgical treatment. (my emphasis)

27. The 1990 Act was repealed and replaced by the WorkCover Queensland Act 1996 (the 1996 Act) including definitions of “impairment” and “permanent impairment” in sections 39 and 40 respectively. In this respect, the Explanatory Notes to the WorkCover Queensland Bill 1996 provide:

    Meaning of “impairment”

    Clause 39 replaces the definition of “impairment” contained in section 5(1) of [the 1990 Act] and has not changed except for being updated according to current drafting practice.

    Meaning of “permanent impairment”

    Clause 40 replaces the definition of “permanent impairment” contained in section 5(1) of [the 1990 Act].  No changes have been made to this section.  The degree of “permanent impairment” is assessed when an injury is stable and stationary in accordance with the table of injuries for determining a lump sum entitlement and work related impairment. (my emphasis)

28. Sections 39 & 40 of the 1996 Act provided:

    39 Meaning of “impairment”

    An “impairment”, from injury, is a loss of, or loss of efficient use of,
    any part of a worker’s body.

    40 Meaning of “permanent impairment”

    A “permanent impairment”, from injury, is an impairment that is
    stable and stationary and not likely to improve with further medical or surgical treatment.

1. The 1996 Act was repealed and replaced by the Workers’ Compensation and Rehabilitation Act 2003 (the Act) including definitions of “impairment” and “permanent impairment” in sections 37 and 38 respectively[45]. Again, the Explanatory Notes to the Workers’ Compensation and Rehabilitation Bill 2003 provide:

   [45] Cited at paragraph 15 of this judgement;

   Meaning of “impairment”

   Clause 37 replaces section 39 of [the 1996 Act] which provides a definition of “impairment” and has not been changed.

   Meaning of “permanent impairment”

   Clause 38 replaces section 40 of [the 1996 Act} which provides a definition of the term “permanent impairment” and has not been changed.

2. In a mesothelioma case of WorkCover Queensland v. Ruseckas (No. C14 of 1997)

   
   

   (18 April 1997) de Jersey J. (as he then was) as President of the Queensland Industrial Court analysed the definition of “permanent impairment” in section 5(1) of the 1990 Act and concluded[46]:

   In my opinion, the proper construction of the definition of permanent impairment, in section 5, requires that the impairment derive from the injury and that the impairment be permanent.  It also requires that the source injury be stable and stationary and not likely to improve with further medical or surgical treatment.

   In other words, the words just quoted, “stable and stationary and not likely to improve with further medical or surgical treatment” qualify injury but do not qualify impairment.  Apart from the flow of the language and the positioning of the words, the word “improve” itself is apt when used in conjunction with injury, but not so apt if used in conjunction with impairment.

   The more appropriate term, with relation to impairment would be reduce or lessen or increase.  As applied to the facts of this case, plainly the injury, the mesothelioma, is stable and stationary and not likely to improve in terms of the section.

   Equally, plainly, the impairment which results from that is a permanent impairment, even though that degree of impairment is likely to increase…..                

   [46] At page 3 of the judgement; a copy of that judgment is attached to this judgement for ease of reference; 

3. As outlined in the history above, given there has been no legislative intention to alter the meaning of “permanent impairment”, the analysis in WorkCover Queensland v. Ruseckas would continue to apply to the definition in section 38 & 39 of the current Act. Therefore, I find that it is the “injury” that must be stable and stationary for the purposes of section 38 and not “impairment”. This is entirely consistent with the historical Explanatory Notes referred to in paragraphs 56 & 57 above.

4. There is no dispute that the appellants will continue to develop future lesions as a result of the underlying pathology and that this situation will not improve. In fact it will get worse.   

5. In a file note dated 11 May 2009, after accepting the underlying pathology as being the “injury”, Dr McCartney adopts the following statement:

   Section 38 [of the Act] provides that permanent impairment occurs where there is an injury causing impairment which is stable and stationary and not likely to improve with further medical or surgical treatment.  The Act does not define stable and stationary.  The table of injuries is to be read in accordance with AMA 4.  AMA 4 defines permanent impairment as being unlikely to change substantially and by more than 3% in the next year with or without treatment.  Because when the lesion is excised it is likely that further lesions will occur, the solar skin disease is not stable and stationary even after the lesions have been excised.

6. Dr McCartney then adopts the statements in that file note that specific lesions not removed cannot be assessed because they are not stable and stationary. If they are removed, permanent impairment would likely be nil in respect of those specific lesions.

7. In a file note dated 12 May 2009 Dr Andrews adopts a similar stance. On the other hand Dr Muir provides views in his reports based on the specific lesions being the relevant injury and offers no views as to whether the underlying pathology, the relevant injury, is stable or stationary. Dr Muir’s approach seems to be that after noting that the “skin condition is a vexed question” and after agreeing with Dr Andrews that specific lesions will develop in the future, he attempts to resolve it by focussing on those specific lesions as separate injuries and then determine whether those separate injuries are stable and stationary[47].       

   [47] See for example Dr Muir’s report dated 3 March 2009 in respect of Mr Cornelius at page 3;  

8. The difficulty I have with the approach of Dr Andrews and Dr McCartney is this. The first sentence of the statement cited at paragraph 63 above is in my view correct. But then the approach taken by Dr McCartney is in my view erroneous. After noting that “stable and stationary” is not defined in the Act, he launches straight into the AMA guides for its definition of “permanent impairment” and then applies it for the purposes of his opinion in concluding that the appellants’ “injuries” are not stable and stationary. The AMA Guide definition specifically provides[48]:

   Permanent impairment is impairment that has become static or well stabilized with or without medical treatment and is not likely to remit despite medical treatment.

   A permanent impairment is considered to be unlikely to change substantially and by more that 3% in the next year with or without medical treatment.  If an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to Guides criteria. (my emphasis)

   [48] AMA 4 Guide – Glossary (in exhibit 2 folder) 

9. The process in section 179 begins in subsection 179(1). The first step is to have the injury assessed to see if injury has resulted in a degree of permanent impairment. I take this to mean that it has to be established if there is in fact a permanent impairment as such.

10. Then subsections 179(2) & (3) of the Act refer to the “degree of permanent impairment” being assessed by a doctor in a way “prescribed by regulation”. Relevantly, subsection 92(3) of the regulations provides that the relevant part of the AMA Guides “must be used in assessing the degree of permanent impairment”. This wording connotes that the AMA Guide is to be used in assessing the degree of permanent impairment as opposed to determining the antecedent question, namely whether there is a “permanent impairment” in accordance with section 38 of the Act. This view is supported when one looks at subsection 92(4) of the regulations which provides:

    However, not every injury a worker may sustain is mentioned in the table of injuries and, if a worker sustains permanent impairment from an injury that is not mentioned in the table of injuries …, the AMA guide must be used in assessing the degree of permanent impairment. (my emphasis)      

11. Thus, for the purposes of subsection 92(4), after it is established that a permanent impairment exists in accordance with section 38 of the Act, then the AMA guide must be used to assess the degree of that impairment. There are two discrete steps. Consistently with this, note also the wording in section 3 of Part 4 of Schedule 2 of the regulations where the focus is on determining the degree of permanent impairment and not the existence of the permanent impairment itself.

12. This is also consistent with the respondent’s own submissions on the question of determining “injury” at paragraphs 27, 28 & 29:

    It is at that point, when the “injury” is identified, that the doctor must turn his or her attention to whether or not that injury so identified is one `which meets the criteria set out in s 38 to be assessable for “permanent impairment”

    If that injury is not one which can be assessed for permanent impairment, there is no need at all to consult the Table of Injuries to find an “envelop” to fit that injury into or otherwise to describe it and assess it under AMA Guide if it is not mentioned in the Table of Injuries.

    If the injury is not one capable of assessment, according to s 38, then reference to Schedule 2, and the Table of Injuries, is simply not reached.        

13. Even so, the AMA guide definition of permanent impairment relied on by Dr McCartney refers to the “permanent impairment” changing by no more than 3% in 12 months. As WorkCover Queensland v. Ruseckas demonstrates, it is the injury and not the impairment that must be stable and stationary. Consistent with Dr McCartney’s opinion, I have accepted that the relevant injury as being the underlying pathological condition that predisposes to development of future lesions. So, in applying the AMA Guide definition of “permanent impairment” instead of the section 38 definition in respect of that injury, it appears on its face that Dr McCartney has applied the wrong test.

14. Apart from the above, the next point to consider is the basis upon which both Dr McCartney and Dr Andrews have concluded that the appellants’ injuries were not stable and stationary. Both doctors formed the view that specific lesions will continue to develop for the rest of their lives, that this situation will not improve, and that the underlying “solar skin disease that is malignant” is unstable and unpredictable[49]. Dr Muir opines. For example, in the context of Mr Rolph developing lesions for the rest of his life Dr Andrews said[50]:

    I consider this condition not to be stable and stationary.  In particular, it has not reached maximal medical improvement and it is definite that Mr Rolph will require further medical treatment for the conditions.

    I would like to emphasize that although the solar damage cannot be considered stable and stationary because it has not reached maximal medical improvement, there is absolutely no way that the damage and predisposition to skin malignancies will improve or reduce now despite sun protection and therefore the degree of Permanent Impairment will continue to increase to maximal attributable level. (Dr Andrews’ emphasis)

    [49] Paragraphs 37 & 38 of the Respondent’s submissions;

    [50] Report dated 13 May 2009 at page 7 of 9 (in the folder constituting exhibit 2);

15. Instead of being guided by the correct interpretation of section 38, Dr Andrews has also applied the AMA Guide’s definition of “permanent impairment”. For example, regarding Mr Stephenson she relevantly said:

    …Mr Stephenson has severe solar-induced skin disease with previously treated lesions, currently active lesions and inadequately excised lesions in the setting of extreme filed damage and dysplasia.  Hence, it is definite that there will be significant change and deterioration of greater than three percent in the next year, with or without medical therapy. This impairment cannot be assessed as permanent and PI assessment is therefore not appropriate. (my emphasis)

    I would like to reiterate that the degree of solar-induced skin damage that is malignant in Mr Stephenson’s case is severe and will only deteriorate and cannot improve with his degree of impairment therefore being assessed as maximal. (Dr Andrews’ emphasis)

16. After accepting the relevant “injury” as being the underlying pathological predisposition instead of the specific lesions that will develop from time to time in the future, Dr Andrews and Dr McCartney then conclude that the appellants’ “conditions” are not stable and stationary because of those specific lesions which will develop in the future. They appear to be then reverting to a view consistent with the appellants’ submissions on “injury” for the purposes of determining “stable and stationary”. This does not appear to be a congruent approach. In my view, “stable and stationary” must relate to the identified “injury” and not to the future specific lesions which themselves are discrete but separate injuries which are the consequences of the identified “injury”. All of the medical evidence suggests that deterioration is certain with all appellants. There is no likelihood that the appellants’ conditions will ever improve and there is absolutely no treatment that can rectify the identified injury which is the underlying pathological predisposition to the development of lesions in the future. In fact, the appellants’ conditions will get worse over time. The medical evidence is clear on this. Therefore, it would appear to me from all the medical evidence that the relevant injury is stable and stationary to satisfy section 38 of the Act so that each appellant has a permanent impairment. It is stable and stationary because, as I have said, it is certain that this underlying disease will produce specific lesions in the future and there is absolutely no medical or surgical treatment available to remedy this.

17. In my view WorkCover Queensland v. Ruseckas, a decision binding on this court unless it is distinguishable, is analogous to this case. It has not been judicially considered since[51]. That was a mesothelioma case in which then Workers Compensation Board of Queensland decided that this condition “cannot attain a stable and stationary status and, as such, a permanent impairment assessment cannot be made”[52]. Mesothelioma is a progressive disease causing deterioration until, ultimately, death. As in this case, the progress of mesothelioma cannot be “arrested or improved by further medical or surgical treatment”. In that case de Jersey J (as he then was) observed that the word “improve ..is apt when used in conjunction with injury, but not so apt if used in conjunction with impairment”. His Honour continued to the effect that “The more appropriate term with relation to impairment would be reduce or lessen or increase”. It was found that the mesothelioma was stable and stationary and not likely to improve. Further, it was accepted by His Honour that impairment can be assessed as a permanent impairment even though the degree of impairment is likely to increase. 

    [51] After searching CaseBase, First Point & Queensland Legal Indices Online;

    [52] Page 1 of the judgment of de Jersey J. (as he then was) in his capacity at President of the Queensland Industrial Court; 

18. On this last point, Chapter 13 of the AMA Guide[53] appears to me to contemplate reassessment after an assessment for permanent impairment has been made where it says at page 278 “Because the degree of a permanent impairment may change, the patient’s impairment should be re-evaluated at appropriate intervals”. Note also Example 7 of a Class 1[54] impairment on page 282 contemplating an increase in the degree of impairment after an initial assessment for permanent impairment and Example 4 of Class 2 impairment on page 284 contemplating a decrease in the degree of impairment after an initial assessment for permanent impairment.       

    [53] Chapter 13 AMA Guide – in the folder constituting exhibit 2;

    [54]

19. Of note, during submissions His Honour de Jersey J. (as he then was) posed the very question raised on behalf of the appellants in this case, namely:

    … why there would be need to include mesothelioma in the schedule at all if it were not contemplated that there might be provision for lump sum compensation on a permanent impairment basis short of death.  Having regard to the relentlessly destructive nature of this disease, it is indeed difficult to see any reason why there would be provision in the schedule for payment in respect of it, if it were not contemplated that there might indeed be permanent impairment because of that injury within the meaning of the Act short of death …  

20. In my view those remarks apply in this case. I accept the appellant’s submissions on this point[55]. It is true that Dr McCartney, in response to a specific question during re-examination after some prompting said that it is possible to have a permanent impairment assessed under “solar induced skin disease that is malignant”. In my view his response was not entirely satisfactory as no explanation was given as to the difference between the circumstances of this case where he has concluded that a permanent impairment cannot be assigned and those cases in which, according to him, an assessment for permanent impairment can be made.            

    [55] Paragraph 36 of submissions made on the appellants’ behalf;

21. In support of its contention that a person with an unstable condition such as here, the respondent submits that due to the beneficial nature of the Act, a conclusion should be adopted along the lines that the appellants will need future medical treatment which has to be paid for. The submission continues that if lump sum compensation is paid, all entitlements to future compensation ceases including medical expenses which, on the medical evidence is a certainty at some stage in the future for all appellants. Thus it would be more beneficial to receive funding for future medical expenses in keeping with the beneficial nature of the Act. 

22. The concept of beneficial legislation is a principle of statutory interpretation.  If there is ambiguity in a statutory provision, a construction favourable to the subject (in this case the worker) should be made. In my view that principle has no application here for three reasons. First, the specific provision that is supposed to be ambiguous is not specifically identified. If it is section 38, then I find that there is no ambiguity particularly having regard to WorkCover Queensland v. Ruseckas. Secondly, there is an express right given to a worker under sections 178 & 179 to ask the insurer to “have ..the injury assessed to decide if the ..injury has resulted in a degree of permanent impairment”. The legislature must have contemplated the consequence of cessation of future entitlements to compensation. It is the worker’s decision to ask for an assessment no doubt having regard to all factors known to him or her[56]. Thirdly, it cannot be baldly concluded that a lack of future entitlement to medical expenses is necessarily to the detriment of the worker particularly in circumstances where the worker has asked for an assessment to be made. I note that all appellants appear to be fully informed as they have had the benefit of legal advice in this respect. Further, in my view it is questionable to assert that it is to the worker’s benefit to continue to have future medical expenses compensation paid but in the same breath denying the worker another form of compensation i.e. lump sum. Again, any benefit gained from either scenario would depend on the worker’s particular circumstances known to the worker and which would no doubt be taken into account by the worker in deciding to ask for an assessment to be made pursuant to section 179.

    [56] While the insurer can also decide to have an injury assessed, it cannot refuse to do so if the worker asks for an assessment;

23. I should comment on the respondent’s submission that assessment of permanent impairment is solely a medical question for a doctor. Relevantly, the scheme of the Act does contemplate that doctors assess permanent impairment. The objects of the Act are contained in section 5. One object in paragraph 5(2)(g) is the provision of assessment of injuries to be made by appropriately qualified persons. Section 179(2)(c) provides for appropriately qualified persons to be doctors. While that is so, that does not mean that decisions based on the assessment of doctors cannot be reviewed. Indeed, paragraph 5(2)(h) of the Act provides for rights of review, and appeal against, decisions under the Act. The specific appeal provisions have already been referred to and powers of this court on review include setting aside those decisions if thought appropriate[57].  

    [57] Section 558 of the Act;

24. It is my view that the Notices of Assessment should be set aside on these grounds. The matters are remitted to the respondent with a direction that for all appellants, the question of whether an individual appellant has sustained a degree of permanent impairment from the injury “solar induced skin disease that is malignant” be reconsidered in accordance with these reasons.

    Mr Rolfe’s additional injury “Severe, bilateral gross facial deformity following burns or other trauma”.

1. This injury is in Part 5 (Prescribed disfigurement) of Schedule 2 of the regulations. The AMA 4 Guide does not apply to the assessment of this injury. 

2. What is in dispute is which former PI Codes should apply i.e. 5105 or 5107. The maximum degree of permanent impairment for former PI Code 5105 is 35% and for  PI Code 5107 is 50%. These are contained in Column 2 of Division 2 Part 5 in Schedule 2 of the regulations.   

3. The relevant parts of Mr Rolph’s Notice of Assessment dated 2 December 2008 have been set out at paragraph 6 of this judgment. The critical one in issue is “Depression deformity from the cheek and frontal bones” (former PI Code 5105). This assessment was undertaken by Dr McCartney in which he assessed a 10% whole of person permanent and WorkCover issued the Notice of Assessment on that basis.   

4. The precise wording of former PI Code 5105 and former PI Code 5107[58] in the Table of Injuries in Schedule 2 of the regulations respectively are:

   [58] While they are described as “former”, the wording is the same without the PI Code numbers in the current regulations;    

   Depressed cheek, nasal or frontal bones following trauma

   Severe, bilateral gross facial deformity following burns or other trauma            

5. In respect of former PI Code 5105, Dr McCartney stated in a file note dated 25 May 2009[59]:

   The best matching injury descriptor for the depression type scarring created by the removal of Mr Rolph’s right eye is code 5105 (depressed cheek, nasal or frontal bones following trauma).  Further, the maximum degree of permanent impairment for this injury descriptor (0-35%) is sufficient in this case.  Therefore, this is the injury descriptor which is most appropriately used.    

   [59] Contained under Tab “Rolph” in a folder constituting exhibit 2;

6. Dr McCartney also stated in that file note:

   If the best matching injury descriptor does not provide for a sufficient permanent impairment, it may be possible to assess the injury under another injury descriptor with a higher maximum percentage impairment. (Dr McCartney’s emphasis)  

7. In her report dated 15 May 2009 Dr Andrews said that “Mr Rolph does not suffer from a depression of the cheek or frontal bones”. She also observed that Mr Rolph has extensive surgical scarring and skin grafts on the face and limbs and in particular a large graft involving at least 30% of Mr Rolph’s face. Then later, regarding former PI Code 5107 she comments that as Mr Rolph will continue to suffer from surgical scarring, skin grafts and solar skin damage, former PI Code 5107 is unable to be assessed as stable and stationary. Apart from that, her opinion though is that PI Code 5107 would otherwise be attributed maximal percentage permanent impairment[60]. This means that for former PI Code 5107, Dr Andrews would assess 50% permanent impairment if she were able to conclude “stable and stationary”. Dr Andrews does not precisely state in her report the basis upon which she has concluded that she cannot assess because of “stable and stationary” apart from future surgical procedures etc. The AMA Guide does not apply to Part 5 injuries and I note that both Dr Muir and Dr McCartney have seen fit to assess permanent impairment for former PI Codes 5107 and 5105 respectively.        

   [60] At page 8 of Dr Andrews’ report dated 15 May 2009;

8. In his report dated 26 August 2008 at pages 5 & 6, Dr Muir considered that former PI Code 5105 does not apply to Mr Rolph. However, in respect of PI Code 5107 he said:

   Mr Rolph has extensive scarring over his left and right cheek.  Obviously the enucleation and subsequent grafting of his right eye has resulted in gross deformity.  His nose has a very disfiguring skin graft.  He has extensive scarring on his upper lip.  He has skin cancer on his face that will require treatment and so the scarring will only become worse.  There are areas that are unaffected. One would therefore have to award a permanent impairment of 45%.

9. In his later report dated 17 October 2008 on former PI Code 5107, Dr Muir said:

   On the day that I examined him, I did find skin malignancies on his face, especially a large one near his nose.  Treatment of these will result in significant further deformity of his face.  As you can see from my original report, I awarded him a permanent impairment level of 45%.  I think it is absolutely certain that his deformity will increase with treatment of these and so in retrospect his degree of permanent impairment will increase to the maximal awardable of 50%.  I think it is totally reasonable to assume this to be the case.  

10. The respondent submits that Dr McCartney was the assessor who concluded that former PI Code 5105 was more appropriate instead of former PI Code 5107[61] and that he did not consider that an assessment under former PI Code 5107 should be made in addition to former PI Code 5105. I don’t think that Dr McCartney was ever contemplating assessing under both. Rather, he assessed under former PI Code 5105 as the “best match” but also said if it appears that permanent impairment in the “best match” descriptor is insufficient, then it is permissible to go to another descriptor with a higher permanent impairment.     

    [61] Paragraph 43 of the respondent’s submissions;

11. The respondent submits that Dr McCartney provided the assessment and his views should be preferred because “It cannot be said to be clearly wrong or an oversight”[62].

    [62] Paragraph 42 of the respondent’s submissions;

12. Dr Muir has assessed former PI Code 5107 at the maximum of 50%. Dr Andrews would have assessed the maximum of 50% had she been able to find “stable and stationary”. Yet, assessing under the less serious former PI Code 5105 with a maximum permanent impairment of 35%, Dr McCartney has only attributed a 10 % permanent impairment. This seems acutely at odds when one has regard to the photographs of Mr Rolph in exhibit 1 and is extremely at odds with the other medical opinion sufficient for me to conclude on balance that the views of Dr Muir and also Dr Andrews are much closer to the mark in determining the degree of permanent impairment percentage. The difference is quite substantial and their view is more likely to be correct. I also observe that Dr Andrews has expressly said[63] that Mr Rolph does not suffer from a depression of the cheek or frontal bones which casts some doubt on Dr McCartney’s assessment under former PI Code 5105 particularly when Dr Muir’s view is that former PI Code 5105 (Depressed cheek, nasal or frontal bones following trauma) simply does not apply. 

    [63] See her report dated 15 May 2009 at pages 6 & 7 (in the folder constituting exhibit 2);

13. First, I find that the injury described in former PI Code 5107 is the more appropriate one than the injury in former PI Code 5105 for the purposes of assessing the degree of permanent impairment. Secondly, I find that the correct degree of permanent impairment under former PI Code 5107 should be the maximum of 50%. While due respect is to be given to the views of an assessing doctor, those views are not sacrosanct. To make it clear, there should only be an assessment under PI Code 5107 being the best matching descriptor and that there should not be an assessment under former PI Code 5105. This is a hearing de novo pursuant to the Act where this court has the power to confirm a decision, vary a decision, set aside and substitute a fresh decision or set aside a decision and remit the matter to the respondent with directions[64].

    [64] Section 558(1) of the Act;

14. The final submission for the respondent is that Dr Muir appeared to be of the view in his assessment of former PI Code 5107 that it was one that was not “stable and stationary”. But I have concluded that Mr Rolph has already reached the maximum permanent impairment permitted in the Table of Injuries of 50%. In my view it would be an absurd result if a person who has reached the maximal degree of permanent impairment permitted under the Table of Injures be deprived of lump sum compensation on the basis that the “injury” is not “stable and stationary”. I agree with the appellants’ submissions on that point. Further, I think that Dr Muir was simply saying in his closing remarks that Mr Rolph’s facial condition will get even worse i.e. beyond 50%. He was clearly of the view however, that Mr Rolph should be assigned a degree of permanent impairment for former PI Code 5107.          

15. Submissions for the appellants are that Dr Muir’s view should be accepted because the respondent’s case was not put to Dr Muir in breach of the rule in Browne v. Dunn (1894) 6 R 67. This rule is comprehensively discussed in the Queensland Court of Appeal case of Smith v. Advanced Electrics Pty Ltd. [2003] QCA 432 at [31-32], [40] and [46-49] per Fryberg J. It was submitted that the course this court should follow is that it should disregard the submission based on evidence which was not tested by putting questions to the party best able to deal with it. That is, Dr Muir’s evidence should be accepted and Dr McCartney’s evidence rejected. The injury in former PI Code 5107 ought to have been assigned a degree of permanent impairment which should have been referred to in his Notice of Assessment which adopted Dr McCartney’s assessment.

16. In response the respondent on the other hand simply says that there is insufficient evidence to demonstrate appellable error. That is, the body of evidence adduced in this court does not support a departure from the assessment of Dr McCartney.

17. I don’t agree with the respondent’s submissions. For reasons previously outlined, there is conflicting cogent evidence requiring evaluation. While this court is not strictly bound by the rules of evidence, in my view it should be guided by them. It is at least a matter of procedural fairness to give a witness the full opportunity of commenting on the opposing case relied on by the opposing party. While I agree with the appellants’ submissions in this respect and the consequence that follows, I nevertheless have concluded as I have above in reliance on all the evidence adduced.  

18. It is my view Mr Rolph’s Notice of Assessment should be set aside on these grounds. The matter is to be remitted to the respondent with a direction that the question of whether Mr Rolph has sustained a degree of permanent impairment from the injury “Severe, bilateral gross facial deformity following burns or other trauma” be reconsidered in accordance with these reasons.  

    Conclusion

19. Pursuant to the section 558(1)(d) of the Act I make the following orders:

    ·     The Notices of Assessment for the appellants are set aside;

    ·     All matters are remitted to WorkCover with a direction –

    a.that in the case of all appellants, the question of whether an individual appellant has sustained a degree of permanent impairment from the injury “Solar induced skin disease that is malignant”; and

    b.in the case of Mr Rolph the question of whether the Mr Rolph has sustained a degree of permanent impairment from the injury “Severe, bilateral gross facial deformity following burns or other trauma”;

    be reconsidered in accordance with these reasons and revised notices of assessment given to the appellants. 

20. I will grant liberty to apply on the giving of three business days notice for any outstanding matters including costs in the event the parties cannot agree.

    
    

Chapter 13 AMA Guide categorizes impairment of the skin in ascending order of severity from
Class 1 to Class 5;