Zecevic v Simon Blackwood (Workers' Compensation Regulator)

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SUPREME COURT OF QUEENSLAND

CITATION:

Zecevic v Simon Blackwood (Workers' Compensation Regulator) & Anor [2015] QSC 232

PARTIES:

IVICA ZECEVIC

(applicant)

v
SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR)

(first respondent)
THE GENERAL MEDICAL ASSESSMENT TRIBUNAL

(second respondent)

FILE NO/S:

SC No 10239 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application for Judicial Review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2015

JUDGE:

Philip McMurdo J

ORDER:

Originating Application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the applicant sought judicial review of the General Medical Assessment Tribunal’s decision that the applicant’s scleroderma was not a consequence of his employment – where the applicant failed to establish the ground of review under s 20(2)(f) of the Judicial Review Act as he failed to establish an absence of evidence or other material to justify the Tribunal’s decision – where the ground under s 20(2)(h) was not established as the court could not be satisfied of the non-existence of a fact the Tribunal may have based their finding upon – whether the Tribunal erred in law by not answering the question referred to it, by considering whether the applicant had as a scientific question, proven the fact of a causal connection between his exposure and onset of scleroderma, rather than asking whether such a connection was established on the balance of probabilities – whether the Tribunal should have referred the matter back to the insurer because it involved a non-medical matter under s 514 of the Workers’ Compensation and Rehabilitation Act – where absence of a known aetiology did not mean the Tribunal’s decision related to non-medical matters or was made beyond its role as the decision maker

Judicial Review Act 1991 (Qld), s 20(2)(f), s 20(2)(h), s 24
Workers’ Compensation and Rehabilitation Act 2003 (Qld)

CSR Ltd v General Medical Assessment Tribunal - Thoracic & Anor [2010] QSC 321, considered
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, considered
York v The General Medical Assessment Tribunal & Anor [2002] QCA 519, cited

COUNSEL:

B F Charrington for the applicant

S A McLeod for the first respondent

No appearance for the second respondent

SOLICITORS:

Bennett & Philp for the applicant

Crown Law for the first respondent

No appearance for the second respondent

  1. The applicant, Mr Zecevic, suffers from an autoimmune disorder called diffuse scleroderma.  It is a rare condition occurring, according to some studies, in about 10 cases per million of population.  It commonly results, as it has for the applicant, in abnormalities in the lungs, heart and gastrointestinal tract.  There is no known cure for the condition. 

  2. The applicant claims that his scleroderma was the result of his work as a tiler and a tiler’s labourer from 1995 until 2008 and he wishes to claim damages against his former employer.  To that end, on 22 October 2012 he lodged a Notice of Claim for Damages with…

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Details
Case
[2015] QSC 232
Decision Date

CaseChat Overview and Summary

In the case of Zecevic v Simon Blackwood (Workers' Compensation Regulator), the applicant, Mr Zecevic, sought judicial review of the General Medical Assessment Tribunal's decision that his scleroderma was not a consequence of his employment. The Tribunal had found that Mr Zecevic's exposure to silica dust during his employment was insufficient to cause his condition. The primary legal issues the court had to address were whether the Tribunal erred in law by not answering the question referred to it and by considering whether the applicant had proven the causal connection between his exposure and onset of scleroderma, rather than asking whether such a connection was established on the balance of probabilities. Additionally, the court had to determine if the Tribunal should have referred the matter back to the insurer because it involved a non-medical matter under the Workers' Compensation and Rehabilitation Act.

The court examined the evidence before the Tribunal, which included the applicant's work history and the professional opinions provided. The Tribunal noted that the applicant's exposure to silica dust was at a low level and that the latent period between exposure and diagnosis was shorter than the median reported in the literature. The court found that the Tribunal's decision was supported by evidence and that the Tribunal had correctly considered the applicant's exposure and the aetiology of scleroderma. The court held that the Tribunal did not err in law and that the absence of a known aetiology did not mean the Tribunal’s decision related to non-medical matters or was made beyond its role as the decision maker.

The court dismissed the originating application, affirming the Tribunal's decision that the applicant's scleroderma was not a consequence of his employment. The reasoning was grounded in the evidence presented and the Tribunal's assessment of the factors contributing to the applicant's condition. The court concluded that the Tribunal had properly exercised its discretion and that the decision was not flawed on the grounds presented by the applicant.

Orders

Orders of the court

Originating Application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The matter was referred to the General Medical Assessment Tribunal, which determined that the applicant’s scleroderma was not a consequence of his employment. By this proceeding, he seeks judicial review of that decision.The evidence before the Tribunal Before going to the Tribunal’s reasons for its decision and the applicant’s arguments, it is necessary to discuss the evidence which was before the Tribunal. The work history of the applicant was not disputed. He migrated to Australia in his early 20s in 1995 and soon began work with a tiling company. He worked for that employer until 2008. For the first few years, he worked primarily as a labourer in circumstances where he was exposed to floor dust and cement dust. From 1998, he was employed as a tiler spending most of his time tiling and the rest in mixing cement and sand. He cut tiles with an angle grinder which exposed him to dust. Larger tiles were cut with a wet saw cutter which produced little dust but most of the tiles were cut with a dry cutter. From 2003 until he stopped work in 2008, he was employed as a foreman but still did some tiling. At no time did he wear a mask or protective clothing. His symptoms began in 2003 with the development of facial palsy, weakness and swelling of his hands and the appearance of what is called Raynaud’s phenomenon which is a condition in his fingers. His general health deteriorated with the onset of other problems such as stiffness in his limbs and effects on his oesophagus, lungs and heart as well as other complications. He was referred to the Gold Coast Hospital in 2005 where rheumatologists diagnosed his scleroderma. As his disabilities increased, he was forced to stop work in April 2008. Three professional opinions were provided to the Tribunal. The first, which was adverse to the applicant, was written by Dr William Douglas. He wrote that the applicant suffered from the “classical physical signs” of the condition and that there was no factor against the diagnosis of scleroderma or any alternative to that diagnosis. His instructions asked for his opinion on whether the development and aetiology of this condition could be “definitively identified” or whether those matters were “to some extent inherently speculative”. He answered as follows:“The aetiology of this condition is unknown. Because it is rare, it is challenging to discover aetiological factors. Gender is clearly a factor and whether that is based on genetics or hormones is unclear. Professor Roberts-Thomson (2011) reports familial clustering which suggests a genetic contribution and current research is examining gene and genome-wide associations.In the late 1950’s there was a report from South Africa of 17 cases of scleroderma in underground gold miners in the Witwatersrand. This paper is frequently quoted but I have been unable to locate a copy of the journal. From my reading of Rodman’s summary of the findings, in the reported 17 cases there was a predominance of pulmonary manifestations i.e. cough and pleuritic pain. 6/17 had radiographic evidence of silicosis. More than half showed pulmonary fibrosis characteristics.Rodman et al (1967) reported on a series of sixty men diagnosed with PSS and found that 26/60 had worked as coal miners or in other occupations associated with heavy and prolonged exposure to silica dust. 8/26 had radiographic changes of silicosis; 3/26 had anthracosis (coal miners’ lung). It should be noted that Rodman worked in Pittsburgh where the main employment was in coal mining and heavy industry.In 1992 the UK Arthritis and Rheumatology Council Epidemiology Research Unit performed an occupational analysis of 56 men diagnosed with scleroderma. They could find no evidence that silica exposure was implicated in the onset of the disease. Also there was no significant increase in past exposure to organic solvents.Thus the cause of the condition is unknown and the aetiology is speculative.”

Decision

Reasons for decision

Dr Robertson said that it could not be determined “if or how much silica Mr Zecevic was exposed to”. He then expressed his conclusion as follows:“Whilst, the possibility of a purely idiopathic cause for the scleroderma in the case of Mr Zecevic cannot be ruled out or excluded, [from] the history of chronic exposure to respirable silica dust and the absence of other risk factors such as gender and age, it is reasonable to conclude that his occupational exposure to silica dust is likely to have caused or contributed to his scleroderma for the following reasons:·Respirable silica has been well documented and accepted as a causative factor of scleroderma in susceptible people·Scleroderma has been generally accepted as an occupational injury when exposed to respirable silica·The industry within which Mr Zecevic works is regarded as one with greatest potential risk for worker exposure to respirable silica·Mr Zecevic was exposed daily to a respirable dust that is likely to have contained silica…·In the absence of his exposure to respirable silica, Mr Zecevic is not representative of the high risk population to develop scleroderma. That is:· Scleroderma affects approximately 2 to 10 people per million· Of those affected, women are three to four times more likely to be affected· When diagnosed before 40, females are seven times more likely to be diagnosed.”The Tribunal’s decision The Tribunal’s written decision set out the applicant’s employment history in a way which is not criticised in the submissions here. The Tribunal said that on its examination the applicant had obvious signs of scleroderma and that he suffered from it. The Tribunal found that the applicant’s employment had not significantly contributed to his condition. The Tribunal’s conclusion was expressed as follows:“[T]he matters alleged for the purpose of seeking damages did not constitute an injury to the worker …” The stated reasons of the Tribunal were as follows:“The reports from Dr Michael Robertson, Dr William Douglas and Dr Helen Englert were noted.There have been reports in the literature of an association between a high cumulative exposure to respirable silica and scleroderma, but these have involved very large cumulative exposures in underground miners, associated with inadequate workplace dust control measures. Although Mr Zecevic was exposed to silica, the Tribunal considered that his overall exposure was low and at a level unlikely to cause end organ damage.The latent period between his exposure to silica and the diagnosis of scleroderma was shorter than the median reported in the literature, and studies have indicated that it is the cumulative life time exposure to silica which is associated with scleroderma.The aetiology of scleroderma remains unknown. It has been associated with silica exposure but this is associated with a large cumulative exposure as described in underground miners. The Tribunal considers that Mr Zecevic’s exposure to respirable silica was at the lower end of the range to cause end organ damage. The latent period between his exposure to respirable silica and his diagnosis of scleroderma was significantly shorter than the median described in the literature. The combination of a low exposure to respirable silica and a shorter latent period between exposure and disease development makes it unlikely that Mr Zecevic’s employment with M & M Tiling (QLD) Pty Ltd over a period of time from 1995 until 2004 contributed to his development of scleroderma.The Tribunal considers that Mr Zecevic’s employment with M & M Tiling (QLD) Pty Ltd was not a significant contributing factor to the development of his scleroderma.”The statutory context

Ratio Decidendi

Legal Principle Established

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