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
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.
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].
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- AGLC
- Rolph v WorkCover Queensland [2009] QMC 11
- Case
- [2009] QMC 11
- Decision Date
CaseChat Overview and Summary
The court meticulously examined the evidence presented and the legal framework governing the assessment of permanent impairment. It scrutinised whether the WorkCover decisions were consistent with the relevant legislation and whether they appropriately considered the medical evidence and the applicable guidelines. The court found that WorkCover had failed to properly consider the appellants' injuries and the degree of permanent impairment they sustained. Specifically, the court held that the assessment of Mr Rolph's injury "Severe, bilateral gross facial deformity following burns or other trauma" was inadequate, as it did not fully account for the severity and impact of the injury.
Consequently, the court set aside the notices of assessment issued by WorkCover and directed that the questions of permanent impairment be reconsidered in light of the court's reasons. The court also allowed the appeals and remitted the matters to WorkCover with specific directions to reassess the degree of permanent impairment for each appellant. The orders included setting aside the notices of assessment, directing WorkCover to revise its assessments, and granting liberty to apply for any outstanding matters including costs if the parties could not agree.
Orders
Orders of the court
Appeals allowed. Decisions of WorkCover set aside and matters returned to WorkCover with directions.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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