Chapman v General Medical Assessment Tribunal - Thoracic & Xtracare

SUPREME COURT OF QUEENSLAND

CITATION: Chapman v General Medical Assessment Tribunal – Thoracic & Xtracare [2007] QCA 381

PARTIES: ELIZABETH JANE CHAPMAN (applicant/appellant) v GENERAL MEDICAL ASSESSMENT TRIBUNAL – THORACIC (first respondent) XTRACARE (second respondent)

FILE NO/S: Appeal No 4172 of 2007 / SC No 416 of 2007

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 9 November 2007

DELIVERED AT: Brisbane

HEARING DATE: 29 October 2007

JUDGES: de Jersey CJ, Muir JA and Dutney J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1.Allow the appeal, and set aside the judgment of the court below of 30 April 2007 / 2.Set aside determinations of the first respondent Tribunal of 12 April 2006, and the second respondent of 26 October 2006 / 3.Remit the reference to a Tribunal, differently constituted, for consideration and determination in accordance with law and these reasons / 4.Order the second respondent to pay the appellant’s costs of the primary hearing before the court below, and the appeal, to be assessed if not agreed; otherwise, no order as to costs

CATCHWORDS: WORKERS' COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where appellant’s late husband exposed to asbestos fibre dust in course of work – where second respondent self-insurer accepted deceased worker suffered from asbestosis – where second respondent referred matter to first respondent Tribunal to determine whether any incapacity for work occasioned by asbestosis – where Tribunal determined worker had not suffered a permanent partial disability as a result of asbestosis – where Tribunal found incapacity was not occasioned by the injury, but attributable to other causes – whether Tribunal impermissibly determined deceased did not have asbestosis, contrary to admission of second respondent – whether Tribunal acted in accordance with power conferred by legislation / Judicial Review Act 1991 (Qld) / Workers’ Compensation Act 1916 (Qld), s 9(1), s 14(1)(C), s 14C(6) / Workers’ Compensation and Rehabilitation Act 2003 (Qld) / Hockey v Yelland (1984) 157 CLR 124, cited

COUNSEL: D C Rangiah for the applicant/appellant / D O J North SC for the first respondent / G W Diehm for the second respondent

SOLICITORS: Turner Freeman for the applicant/appellant / Q-Comp for the first respondent / Ebsworth & Ebsworth for the second respondent

1. de JERSEY CJ: On 12 April 2006, the first respondent Tribunal determined that the appellant’s late husband had not suffered a permanent partial disability as a result of asbestosis. The second respondent, a licensed self-insurer under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), had accepted that the deceased suffered from asbestosis, a work-related injury within the terms of the legislation. The deceased had relevantly been employed as a fibro fixer by Mt Isa Mines Ltd from 1950 to 1953.

2. The self-insurer had, on 15 December 2005, referred the matter to the Tribunal, on the basis it accepted a diagnosis of asbestosis. Under s 14C(6) of the Workers’ Compensation Act 1916 (Qld), the Tribunal was obliged to make a determination whether any incapacity for work was occasioned by the asbestosis.

3. Following the Tribunal’s determination, the second respondent consequently determined (on 26 October 2006) that the deceased did not suffer any permanent partial disability as a result of the injury (proceeding under ss 9(1) and 14(1)(C) of the Workers’ Compensation Act 1916).

4. The essence of the Tribunal’s reasoning emerges from these passages in its statement of reasons of 12 April 2006:

“The Tribunal notes that the Insurer has accepted asbestosis for medical expenses and two respiratory physicians have supported the claim.

The Tribunal accepts that Mr Chapman was exposed to asbestos fibre dust at various times during the period from 1950 to 1953. From his statement it is highly likely that the intensity of his exposure to asbestos fibre dust was very low and hence his cumulative exposure was also very low.

The Tribunal accepts that Mr Chapman has interstitial lung disease and emphysema. The latter is presumably due to his cigarette smoking. The interstitial lung disease is due to idiopathic pulmonary fibrosis or cryptogenic fibrosing alveolitis.

The reasons for this conclusion are that the period of Mr Chapman’s asbestos exposure was short (3 years), the intensity was low and there was a latency of approximately 45 years between the initial exposure and the indisputable evidence of significant interstitial lung disease. Further, the rapidity of the disease progression is entirely consistent with cryptogenic fibrosing alveolitis and extremely uncharacteristic of asbestosis.

Therefore, his current permanent partial disability is not related to the condition for which his claim for compensation was accepted.

This decision has been reached after considering the correspondence from Dr A Matthiesson of 23 March 2006.”

5. In that letter of 23 March 2006 Dr Matthiesson, who is a respiratory physician, had attributed the deceased’s symptoms to asbestosis, for reasons comprehensively expressed.

6. The Tribunal made the following determination apparently addressing the issues under s 14C(6):

“Following consideration of all the medical evidence presented, interview of the worker and reference to the American Medical Association Guides to the Evaluation of Permanent Impairment, the Tribunal determined that:

Section 14C(6)

There is no incapacity occasioned by the injury.

The worker has not suffered a permanent partial disability as a result of the injury.”

7. The appellant sought review of the decisions of the Tribunal and the self-insurer under the Judicial Review Act 1991 (Qld). The critical ground was that the Tribunal “had no power under s 14C(6) of the [Workers’ Compensation Act 1916] to decide, as it did, that the deceased did not have an ‘injury’ within the meaning of the Act in circumstances where [the self-insurer] had admitted that the deceased did have an injury, namely asbestosis”.

8. Section 14C(6) provides:

“Upon a reference under subsection (4) of this section the Board concerned shall determine whether or not the matters alleged by the claimant constitute an injury under and within the meaning of this Act and, if so, the nature thereof and whether any incapacity for work occasioned by the injury is total or partial in the employment in which the claimant alleges he was engaged at the time of the injury, and whether such incapacity is permanent or temporary.

Where the General Manager has admitted that the matters alleged by the claimant constitute an injury under and within the meaning of this Act and the nature thereof the Board concerned shall determine whether any incapacity for work occasioned by the injury is total or partial whether such incapacity is permanent or temporary and, where the worker has suffered any permanent partial disability as a result of the injury, the nature and extent of that disability.”

This reference proceeded under the second limb of that subsection. By virtue of transitional provisions, “General Manager” is to be read in this case as “self-insurer”.

9. In dismissing the application, the learned Judge said:

“In my view the Tribunal’s determination was in accordance with the reference and s 14C(6). It determined that any disability suffered by the deceased was caused by the conditions referred to in its reasons and not by asbestosis and so was not work-related.

The Tribunal was asked to decide the extent to which any incapacity the deceased suffered was as a result of asbestosis (‘the injury’) contracted as a consequence of his employment. It decided that his condition and consequent disability was caused by something else which was unrelated to his work ie the plaintiff’s disability was not a consequence of asbestos.

These conclusions are consistent with the reference and within the power conferred on the Tribunal.”

10. The Tribunal essentially found the deceased’s incapacity was not occasioned by asbestosis. The learned Judge accepted that the Tribunal did not thereby trespass beyond its role as delineated by s 14C(6).

11. The essence of the appellant’s present challenge may be drawn from this extract from her outline of argument:

“The first respondent decided that the deceased had not suffered a permanent partial disability as a result of the admitted injury. It reached that conclusion by finding (contrary to the admission of the second respondent) that the deceased did not have asbestosis, but instead had idiopathic interstitial lung disease or cryptogenic fibrosing alveolitis.

The appellant submits that it was not open to the Tribunal, under the terms of the reference and s 14C(6), to reach its conclusion by finding that the deceased did not suffer from asbestosis when the second respondent had admitted that the deceased did have that condition. Instead, it was required to decide the nature and extent of the deceased’s permanent partial disability by accepting or assuming that the deceased did have asbestosis.”

12. Under s 14C(6), the Tribunal was obliged to determine “whether any incapacity for work occasioned by the injury is total or partial…”. What the Tribunal has found is that the incapacity suffered by the deceased was not “occasioned by the injury”, because it was not occasioned by a condition of asbestosis. The Tribunal attributed the deceased’s incapacity to other causes: interstitial lung disease and emphysema, presumably the result of cigarette smoking. Hence the Tribunal’s conclusion: “his current permanent partial disability is not related to the condition for which his claim for compensation was accepted”, namely, asbestosis. The question is whether the Tribunal thereby addressed the question referred to it, and proceeded consistently with s 14C(6).

13. Section 14C(6) obliged the Tribunal to accept the self-insurer’s characterisation of the deceased’s ‘injury’ (for which, in fact, there was expert medical support), and assess any incapacity consequent upon that injury. It was not open to the Tribunal to reject the diagnosis accepted by the self-insurer and substitute its own. That is because of the statutory scheme, to which the Tribunal was bound. The Tribunal’s approach under the second limb of s 14C(6), on the basis of an admitted injury, is to be contrasted with its approach under the first limb, where it must determine whether an applicant has suffered an injury. This provision should be construed literally: Hockey v Yelland (1984) 157 CLR 124, 138.

14. The legislature has considered that if the insurer is prepared to accept that a certain injury has been sustained, and it may be assumed the insurer will have relied on sufficient material for that conclusion, there is no public or private justification to permit a Tribunal to reopen the correctness of that conclusion: the Tribunal’s function should then be pegged at determining the extent of any consequent disability. While on one view it might be felt odd to compel a specialist tribunal to proceed on a diagnostic basis with which it does not agree, other public policy considerations apply in situations like these, especially the minimisation of delay and expense.

15. The difficulty arising from the Tribunal’s approach in this instance is that the Tribunal has, in what it has said, all but rejected the diagnosis of asbestosis. That is to be gathered from its relegation of the deceased’s condition to the result of only low grade exposure to asbestos fibre, taken with the robust alternate reference to other medical conditions. While the Tribunal has not in express terms rejected asbestosis, it has certainly not clearly acknowledged it, and the powerful inference is it has proceeded on the contrary basis. It is significant that a month before its decision, on 14 March 2006, the appellant was advised the Tribunal members did not agree with the diagnosis of asbestosis.

16. The hearing had taken place on 27 February 2006, and by this letter, the Tribunal invited further submissions on its provisional view. In the letter, the Tribunal said a number of things which appear in the later decision. Relevant parts of the letter read:

“I have been requested to write to you on behalf of the members of the tribunal with respect to a matter arising out of that hearing. Prior to finalising its decision, the tribunal wishes to alert you to the fact that it does not agree with the diagnosis of asbestosis made by Dr Matthiesson and Dr Edwards.

The tribunal accepts that Mr Chapman was exposed to asbestos fibre dust over a period of approximately three years from 1950 to 1953. However from Mr Chapman’s statement, the tribunal considers that the intensity of his exposure to asbestos fibre dust was very low and hence his overall cumulative exposure was also very low.

The tribunal accepts that Mr Chapman has interstitial lung disease (that is, widespread inflammation and scarring of the lungs) and emphysema. The tribunal considers that the emphysema is due to his past cigarette smoking and that the interstitial lung disease is more likely than not due to idiopathic pulmonary fibrosis which is also called cryptogenic fibrosing alveolitis. This condition occurs in older people and has no known environmental cause.

The reasons for the tribunal’s conclusion are that the period of Mr Chapman’s asbestos exposure was short (3 years), the intensity was low and there was a period of approximately 45 years between the initial exposure and the indisputable evidence of significant interstitial lung disease. This fact alone virtually excludes asbestosis. Further, the rapidity of the disease progression is entirely consistent with idiopathic pulmonary fibrosis and extremely uncharacteristic of asbestosis.

The tribunal has deferred its decision to allow you the opportunity to consider whether you wish to make further submissions or provide any additional information in relation to the issues outlined above. The tribunal has deferred making its final decision for a period of time to allow you to make further submissions and/or provide any additional information for consideration by the tribunal…”. (emphasis added)

17. Mr North SC, appearing for the Tribunal, submitted that in putting the exposure to asbestos fibre at a lowish level in its reasons, the Tribunal was doing no more than explaining why it excluded a relationship between the deceased’s incapacity and that exposure. I consider the Tribunal probably went beyond that, especially in context of that letter of 14 March 2006, advising the Tribunal “does not agree with the diagnosis of asbestosis made by Dr Matthiesson and Dr Edwards”. Does that mean what it says, or should it be read as saying the Tribunal did not agree that asbestosis was the cause of the incapacity? There is no reason to read the passage other than literally, and there is no reason to think the Tribunal did not hold to that “provisional” view when making its final determination. The last paragraph of its reasons of 12 April 2006 (para 4 above) is significant in that regard.

18. In these circumstances, it is not only not clear that the Tribunal proceeded in accordance with its statutory charter, but – to my mind – it is likely that it did not.

19. It may be the present position could have been avoided had the Tribunal, while expressing its necessary acceptance of the asbestosis, gone on to explain why none of the deceased’s incapacity could nevertheless be attributed to it: explaining, in other words, how the condition of asbestosis did not, in this particular case, lead to the incapacity.

20. In the absence of an explanation of that nature, the matter rests in the state mentioned above, where one strongly infers a rejection of the diagnosis of asbestosis. The Tribunal thereby departed from the statutory charter.

21. The application for judicial review should have produced a ruling that the respondents’ decisions should be set aside because the Tribunal did not proceed in accordance with law.

22. I would make these orders:

23. allow the appeal, and set aside the judgment of this Court of 30 April 2007;

24. set aside determinations of the first respondent Tribunal of 12 April 2006, and the second respondent of 26 October 2006;

25. remit the reference to a Tribunal, differently constituted, for consideration and determination in accordance with law and these reasons;

26. order the second respondent to pay the appellant’s costs of the primary hearing before this Court, and the appeal, to be assessed if not agreed; otherwise, no order as to costs.

27. MUIR JA: I agree with the reasons of the Chief Justice and with his proposed orders.

28. DUTNEY J: I have read the reasons of the Chief Justice with which I agree.