Zegenhagen v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 37

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Zegenhagen v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 037
PARTIES:	Zegenhagen, Henry (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent)
CASE NO:	WC/2014/354
PROCEEDING:	Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)
DELIVERED ON:	3 March 2015
HEARING DATE:	3 March 2015
MEMBER:	Deputy President Swan
ORDERS :	1. The decision of the Regulator is set aside. 2. The application is returned to the Regulator for review of outstanding issues.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether Appellant was a worker for the purposes of s 11 of the Act - Appellant's health in parlous state - suffers mesothelioma - urgent decision required - lack of corroborating evidence as Appellant is 86 years old and the event in question occurred 68 years ago - the application of s 36(a) of the Act is not in contention - Appellant found to be worker who had worked at James Hardie Coy.
CASES:	Workers' Compensation and Rehabilitation Act 2003 Ambulance Service of New South Wales v Anderson [2011] NSWWCCPD 3
APPEARANCES:	Mr S. Tzouganatos, Counsel instructed by Slater & Gordon Lawyers for the Appellant. Mr P. Major, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.

Decision

The Appellant in this matter, Mr Zegenhagen, seeks to appeal a decision of Simon Blackwood (Workers' Compensation Regulator) dated 5 December 2014.
The Regulator, in its Reasons for Decision, stated that "I have confirmed the decision of WorkCover to reject Mr Zegenhagen's application in accordance with Section 36A and Section 11 of the Workers' Compensation and Rehabilitation Act 2003 (the Act)."
Section 11 of the Act defines a worker as:
"11    Who is a worker
(1)     A worker is a person who -
(a)works under a contract; and
(b)in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5.
(2)     Also, schedule 2, part 1 sets out who is a worker in particular circumstances.
(3)     However, schedule 2, part 2 sets out who is not a worker in particular circumstances.

(4) Only an individual can be a worker for this Act."

For the purposes of this Appeal, the primary point in contention centres upon whether the Appellant was a 'worker' pursuant to s 11 of the Act.
Section 36A(1) of the Act as it relates to a latent onset injury concerning the Appellant is not challenged by the parties. Nor is the relevant compensation Act (Workers' Compensation and Rehabilitation Act 2003) challenged.

The resolution of this Appeal was sought urgently as the Appellant (86 years old) suffers from mesothelioma and has a life expectancy of less than three months.

The Appellant, of his own accord, left his Hospital today for the purpose of giving his evidence.

Background to the Appellant's claim

The Appellant had been a Justice of the Peace for more than 40 years.
The Appellant's claim is that he was a 'worker' for the…

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.

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Details

Case: [2015] QIRC 37
Decision Date: 3 March 2015

CaseChat Overview and Summary

In the case of Zegenhagen v Simon Blackwood, the appellant sought review of a decision by the Workers' Compensation Regulator. The primary issue was whether the appellant qualified as a worker for the purposes of section 11 of the relevant Act. The appellant, who is now in a parlous state of health and suffering from mesothelioma, needed an urgent resolution to his claim. Given his age and the length of time since the event in question, corroborating evidence was sparse. However, the application of section 36(a) of the Act was not contested. The appellant had worked at the James Hardie Company, and the key legal issue was his status as a worker under the Act.

The court needed to determine if the appellant met the criteria for being a worker as defined by the Act. The Regulator had previously decided that the appellant did not qualify as a worker. However, the court found that the appellant's employment at the James Hardie Company did indeed meet the statutory definition of a worker. The court emphasised the importance of the appellant's current health condition and the urgency of his claim, which justified a favourable interpretation of the evidence available. The court found that the Regulator's decision was not supported by the evidence and was therefore incorrect.

The decision of the Regulator was set aside, and the case was returned to the Regulator for a review of the outstanding issues. The court's reasoning hinged on the interpretation of the statutory definition of a worker and the specific circumstances of the appellant's case, including his current health condition and the lack of corroborating evidence. The final orders mandated that the Regulator reconsider the appellant's claim in light of the court's findings.

Orders

Orders of the court

1. The decision of the Regulator is set aside.

2. The application is returned to the Regulator for review of outstanding issues.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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