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

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].

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Rolph v WorkCover Queensland

Details

AGLC: Rolph v WorkCover Queensland [2009] QMC 11
Case: [2009] QMC 11
Decision Date: 13 July 2009

CaseChat Overview and Summary

Rolph v WorkCover Queensland involved an appeal against WorkCover Queensland's decisions regarding the assessment of permanent impairment. The appellants, Mr Rolph and others, contested the notices of assessment issued by WorkCover, which determined the degree of their permanent impairment resulting from specific injuries. The court had to determine whether the decisions were lawful, reasonable, and just. The primary legal issues revolved around the interpretation and application of the statutory provisions concerning the assessment of permanent impairment, particularly in relation to the injuries of Mr Rolph and the other appellants.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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”; andb.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. 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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