WorkCover Queensland’s terminal benefits decision overturned for worker with silicosis

13 June 2022

In issue

  • The Queensland Industrial Relations Commission (QIRC) was required to consider whether the appellant was entitled to a latent onset lump sum payment from WorkCover, in relation to his diagnosis of silicosis.

The background

The appellant, Mr Bartosek, worked as a stonemason in Queensland between 2002 and 2015. During that time, he was exposed to respirable crystalline silica dust, predominantly through his use of artificial stone in the construction of kitchen and other stone benchtops.

Dr Deller, his treating respiratory physician, identified a number of lung nodules on a CT scan, undertaken by the appellant in December 2014. Dr Deller was unable to provide a conclusive diagnosis and in his report of January 2015, he provided a number of potential diagnoses for the appellant, one of which included silicosis.

The appellant subsequently lodged a notice of claim for damages with WorkCover with respect to silicosis and arthritis in April 2016, and later commenced claims against the suppliers of the artificial stone to his employers. As part of his common law claim, the appellant was examined by Professor Allen, a respiratory physician, who produced a report dated 22 March 2017, in which he confirmed the diagnosis of silicosis. The appellant’s claim against his employers and the suppliers subsequently resolved in mid-2018.

The appellant continued to undergo treatment from Dr Deller, who provided a report dated 1 November 2018, in which he confirmed the diagnosis of silicosis, and a report of 25 August 2020, in which he stated that it was more likely than not that the appellant’s silicosis would ultimately progress to the point that it would terminate his life.

Based on that, in September 2020 the appellant made application to WorkCover for payment of a latent onset terminal condition lump sum.

WorkCover rejected the application on the basis that section 119 of the Workers' Compensation and Rehabilitation Act 2003 (WCRA) precluded his entitlement to compensation. Section 119 provides that entitlement to compensation ceases once a claim has finalised, by either judgment or settlement. The appellant applied to the Regulator for review of WorkCover’s decision, however it upheld the decision that he was not entitled to the payment.

The decision at trial

The appellant sought an appeal of the Regulator’s decision before the QIRC, conducted on a de novo basis, meaning that the appellant bore the onus of proof.

In order to establish an entitlement to a lump sum payment, the appellant was required to satisfy the definition of a “terminal condition” pursuant to s39A of the WCRA. By way of an amendment, on 30 October 2019, s39A defined a terminal condition as one certified by a doctor as being expected to terminate the workers’ life, and such diagnosis was accepted by WorkCover. Prior to the amendment, the section had also prescribed a requirement that the condition was expected to terminate the workers' life, within 2 years of the date of diagnosis. Section 732 of the WCRA provides that the amended version of s39A operates if the relevant latent injury was sustained by a worker after 31 January 2015, with the date of a doctor’s diagnosis being taken as the date on which the injury was sustained.

The Regulator did not rely on its prior position, that s119 precluded the appellant’s entitlement to the payment. Instead, it argued that the appellant had received his terminal diagnosis prior to 31 January 2015, meaning that the earlier version of s39A applied, and the appellant therefore did not satisfy the requirement of an expectation that his silicosis would terminate his life, within 2 years of his diagnosis.

The appellant maintained that he was diagnosed with silicosis after 30 January 2015 and therefore fell within the amended s39A definition of a terminal condition.

The QIRC determined that the appellant had been diagnosed with silicosis after 31 January 2015. In doing so, it noted that until Professor Allen provided his report on 22 March 2017, there had been a number of potential diagnoses. Professor Allen’s opinion was later confirmed by Dr Deller, in his report of November 2018. Accordingly, as the appellant was diagnosed after 31 January 2015, he fell within the amended definition of s39A of “terminal condition” and was required only to establish that a doctor had diagnosed a terminal condition, which had been accepted by WorkCover.

On that issue, the QIRC noted that Dr Deller had done so, in his report of 25 August 2020, and, importantly, that WorkCover had not challenged that opinion in any way, or produced any expert medical evidence to the contrary. The QIRC therefore inferred that WorkCover accepted Dr Deller’s view that the appellant’s silicosis was likely to terminate his life.

Accordingly, the QIRC set aside the earlier decision of the Regulator, and found that the appellant was entitled to a latent onset terminal condition lump sum from WorkCover.

Implications for you

The decision indicates the importance of a careful review of the medical evidence, given the weight that was placed on it by the QIRC. It also highlights the important of contemporaneous record keeping, given the reliance placed by the QIRC on file notes recorded by the medical experts, and by the appellant’s solicitors in discussions with the appellant as to his understanding of his condition. Finally, it is a salient reminder that a court is entitled to make certain inferences concerning evidence, if alternative evidence is not put before it, for consideration.

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