Zegenhagen v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 37
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- Zegenhagen v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 37
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Zegenhagen v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 37
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 : |
|
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
- [1]The Appellant in this matter, Mr Zegenhagen, seeks to appeal a decision of Simon Blackwood (Workers' Compensation Regulator) dated 5 December 2014.
- [2]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)."
- [3]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."
- [4]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.
- [5]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.
- [6]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.
- [7]The Appellant, of his own accord, left his Hospital today for the purpose of giving his evidence.
Background to the Appellant's claim
- [8]The Appellant had been a Justice of the Peace for more than 40 years.
- [9]The Appellant's claim is that he was a 'worker' for the purposes of the Act and that he had worked at the James Hardie factory in Fortitude Valley in Brisbane.
- [10]The Appellant said he started work there in 1946 and worked, full time, as a labourer for approximately six months. He worked 8 hour shifts.
- [11]His job required him to pick up the canvas bags full of asbestos powder and rip the tops open with a knife. He described the bags as being about 80 cm wide and about 60 cm long. They weighed approximately 20kg. He said there was no labelling on the bags.
- [12]The Appellant did not bring any work tools to work and he submits that he was under the direction of a Supervisor. He was also not provided with any masks to deal with the dust.
- [13]The Appellant said that he received his pay in an envelope each week.
- [14]The Appellant was able to describe his mode of transport to work each day, taking a tram from Ashgrove to Fortitude Valley. He only recalled the name of one friend with whom he had applied for the job at James Hardie. The Appellant was successful in getting a job, and his friend was not. He had known this friend, Robert Buckby, because the two had worked at Shell and as such he had recalled his name.
- [15]Only working at James Hardie for six months, the Appellant could not recall the names of any other workers, but he did recall that he worked under a Supervisor. The Appellant left the employ of James Hardie as he said it was the worst job he had ever had. He said he was always covered in dust.
- [16]The Appellant was shown an Affidavit he had signed on 2 October 2014 which included, inter alia, the following statement:
"In addition to my Statutory Declaration sworn on 30 June 2014, I confirm that I was employed with James Hardie pursuant to a Contract of Service."
- [17]When questioned by the Regulator regarding this statement, it was clear that the Appellant did not understand what the term meant. His answer referred to the 'dust' component of his work, but any broader meaning of the term was not known to him.
- [18]I have accepted that the Appellant did not understand that phrase and certainly not within any legal context.
- [19]There is no other evidence from the Regulator to challenge the evidence of the Appellant on this point.
- [20]In saying this, I am conscious of the Regulator's claim that there has been no corroborating evidence given to support the claim of the Appellant.
In Ambulance Service of New South Wales v Anderson[1] [2011], Deputy President O'Grady stated:
"The mere absence of corroboration does not, as seems to be asserted by the appellant, preclude acceptance of that evidence. The obligation upon a fact finder is to consider the totality of the evidence to determine whether its effect has given rise to an actual persuasion of the existence of the fact in issue."
- [21]Given the events in question in this matter occurred some 68 years ago, and that the Appellant is now 86 it is small wonder that corroborating evidence cannot be adduced. That, in my view, does not detract from the Appellant's claim.
- [22]The onus is on the Appellant to prove on the balance of probabilities that his evidence should be accepted.
- [23]I have accepted the Appellant as a truthful witness. The Appellant presented as a frail man, who was clearly not in good health, however he was lucid in his responses to Counsel when questioned and also when questioned by the Commission. He was honest in terms of matters he could not recall (often stating that if he had some time, he might be able to recall some names etc.) and his evidence has been accepted.
Whether the Appellant worked at James Hardie as claimed
- [24]This factor was considered as the Appellant's claim was that he had contracted his condition from working with asbestos at James Hardie in the 1940's.
- [25]The discrete point of whether it is accepted that the Appellant worked at James Hardie is to be considered. The question of causation, for reasons later detailed is not to be determined under this heading.
- [26]James Hardie in-house Counsel, Mr Bruce Potts, said that while employees' history had been put on a data base over the years, there were records kept from the 1940s. He was unable to locate any reference to the Appellant in those records, but he was not prepared to say that the records were conclusive.
- [27]Ms Kemble, from Asbestos Injuries Compensation Fund, gave evidence that her organisation held a data base of employees working at James Hardie in the 1940's. The original written records were recorded on cards, and then transferred to a data base. She did not know who compiled the information onto the data base. While the physical records of names for that period had not been searched, there was no reference to the Appellant on the data base.
- [28]Ms Kemble stated that on the physical records, often the writing had faded. She was clear, however, that because a name was not on the data base or on other records, that did not mean that the person never worked for James Hardie.
- [29]I have accepted that the Appellant did work at James Hardie during the time period nominated by him.
- [30]I accept that the Appellant's memory was sufficiently strong of his working days at James Hardie. He had, as previously mentioned, described in considerable detail what his working conditions were like; his method of going to work; the hours worked; that he worked in accordance with a supervisor amongst other detail.
Medical Evidence
- [31]The Appellant first suffered symptoms during 2013, and was diagnosed on 8 April 2013 by Doctor George Tsikleas as having symptoms which would support the diagnosis of malignant mesothelioma.
- [32]Further medical reports support this view. These include the reports of Dr Keith Horwood, Medical Oncologist on 17 April 2014; Dr David McEvoy, Respiratory Physician on 29 May 2014; Dr Keith Shilkin, Consultant Pathologist.
- [33]Dr McEvoy's correspondence addressed to Slater and Gordon Lawyers states:
"Subsequent to my report of 29 May 2014 and your letter of 11 February 2015 I wish to confirm that the period of employment at James Hardie and Coy. was the significant contributing factor in the subsequent development of mesothelioma in Henry Zegenhagen."
Further matter for Consideration
- [34]An initial point of contention between the parties was that the Appellant's Counsel submitted that the Appeal should not be confined to a determination of whether the Appellant was a 'worker' and verification of where he said he had worked at a point in time. In effect, the Appeal should consider not only those points but also "causation".
- [35]In effect, Counsel for the Appellant said that 'the decision' of the Regulator was that the Appellant did not have an entitlement to compensation. Consequently, if it was found that the Appellant was successful in this Appeal, the matter could be finalised by the Commission at this time.
- [36]The Regulator opposed this proposition, stating that the only point for consideration by the Regulator related to whether or not the Appellant was a 'worker' for the purposes of s.11 of the Act. Matters of 'causation' had not been dealt with in the Regulator's decision and required further consideration by the Regulator.
- [37]I have accepted the Regulator's submissions as being correct. The decision stated:
"Therefore, I have determined that Mr Zegenhagen was not a 'worker' in accordance with section 11 of the Act and Mr Zegenhagen does not have an entitlement to compensation".
Decision
- [38]On the date of hearing this Appeal, 3 March 2015, a decision was given from the Bench with reasons for that decision to be issued on the same date.
- [39]The Commission's concern related to the submission of the Regulator that, if it found in favour of the Appellant being a "worker" having worked at James Hardie in the 1940's, the Insurer might wish to have the Appellant medically examined by another Medical Specialist. Given the parlous state of the Appellant's health, the concern was that there might not be enough time for that to happen.
- [40]I have found that the Appellant was a 'worker' for the purposes of s 11 of the Act and that he had worked at James Hardie in Brisbane's Fortitude Valley during the 1940's on the dates nominated.
- [41]Pursuant to s 558 of the Act:
"558 Powers of appeal body
- (1)In deciding an appeal, the appeal body may -
- (a)confirm the decision; or
- (b)vary the decision; or
- (c)set aside the decision and substitute another decision; or
- (d)set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
- (2)If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.
- (3)Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation."
- [42]Pursuant to s 558 (1)(d) of the Act, I propose to set aside the Regulator's decision and return the matter to the respondent with appropriate directions.
- [43]These directions are that the Regulator is to review the decision as it would normally do according to the Act, against the background of the decisions I have made.
- [44]There is a genuine matter of urgency relating to this application and I would encourage the parties undertaking further consideration of this matter to attempt to finalise its deliberations expeditiously.
- [45]Order accordingly,
Footnotes
[1] Ambulance Service of New South Wales v Anderson [2011] NSWWCCPD 3