Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2015
  4. Pocock as executor of the estate of Pocock v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 83

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Pocock as executor of the estate of Pocock v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 83

Pocock as executor of the estate of Pocock v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 83

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pocock as executor of the estate of Pocock v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 083

PARTIES:

Pocock, Beryl as executor of the estate of Pocock, Errol

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2012/439

PROCEEDING:

Appeal against a decision of the Regulator

DELIVERED ON:

14 May 2015

HEARING DATE:

24 July 2014

Supplementary submissions

Appellant - 10 April 2015

Respondent and Employer - 13 April 2015

MEMBER:

Industrial Commissioner Fisher

ORDERS:

  1. The Appeal is dismissed.
  2. The decision of the Regulator is confirmed.
  3. Costs are reserved.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - solar induced skin disease that was malignant - employer granted leave to be heard - when entitlement to compensation arose in circumstances where an insidious disease has been diagnosed both before and after the commencement of s 36A - time for applying - time from which compensation payable - whether s 141 applies where the claimant is not a worker - when the claimant was assessed by a doctor pursuant to s 141(1) - whether the treating doctor communicated an opinion that the injury was work related - when the claimant was informed that his injury was work related - latent onset injury - diagnosed with insidious disease on numerous occasions - application lodged outside of time - appeal dismissed.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 5, s 11, 36A, s 131, s 141, s 603, Schedule 2, Schedule 6

WorkCover Qld v Downey (2001) 168 QGIG 381 Armstrong v Local Government Workcare [2014] ICQ 007

Taylor v The Owners Strata Plan No 11564 [2014] HCA 9

Blackwood v Toward [2015] ICQ 008

APPEARANCES:

Mr M. Grant-Taylor, QC instructed by Turner Freeman Lawyers for the Appellant.

Mr S.P. Gray, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator) for the Respondent.

Mr R.J. Douglas, QC instructed by Gadens for the Gladstone Regional Council, the Employer.

Decision

  1. [1]
    Errol Pocock was employed by the Dalby Council from 1953 to 1979 and the Gladstone City Council from 1979 until his retirement in 1992.
  1. [2]
    On 1 February 2012, Mr Pocock was examined by Dr Wagner, Dermatologist.  On 29 February 2012, Dr Wagner provided a report and a workers' compensation medical certificate in respect of Mr Pocock which gave a diagnosis of "solar induced skin disease that is malignant".
  1. [3]
    Mr Pocock lodged an application for workers' compensation with Local Government Workcare on 1 March 2012 for solar induced skin disease said to have been sustained during the course of his employment with the Dalby Council and the Gladstone City Council.  That application was rejected.  Mr Pocock sought a review of that decision by the Workers' Compensation Regulator which confirmed the decision of LGW.  Mr Pocock then appealed that decision to the Queensland Industrial Relations Commission.  Mr Pocock passed away on 26 March 2013 and his appeal is continued by his widow, Beryl Pocock, as Administrator of the deceased's estate.
  1. [4]
    The Gladstone City Council (the Employer) was granted leave to appear and be heard in the appeal.
  1. [5]
    At the time of the hearing of this appeal no factual dispute remained between the parties and the Employer.  Agreement was reached on the following set of facts:

"AGREED FACTS

  1. At all times from 20 September 2001 until the date of his death on 26 March 2013, Mr Pocock was suffering from a solar induced skin disease that was malignant ("the disease").
  1. On 20 September 2001, Mr Pocock was diagnosed, by Dr Rigby, as suffering the disease, and he was informed of such diagnosis and this was a malignant condition.
  1. In the period from 2 November 2005 to 30 August 2011, Mr Pocock was diagnosed, on numerous occasions, by his treating doctors, as suffering from the disease, and was informed of each such diagnosis.
  1. At the time of the attendances upon his doctors from 20 September 2001 until 31 January 2012, Mr Pocock was not working, having retired from all employment in 1992, and he was not assessed by those doctors, or any doctors, for incapacity for work, either total or partial."
  1. [6]
    In addition to the Agreed Facts, those appearing in the appeal are of a common view about the following points:
  • The deceased was first treated for his disease in November 1996.
  • Dr Rigby's and Dr Wagner's diagnoses are indistinguishable.
  • Between 20 September 2001 and 29 February 2012, the deceased was seen by a number of doctors who arrived at a similar diagnosis to that of Dr Rigby on 20 September 2001.
  1. [7]
    The Agreed Facts establish that the deceased was diagnosed with an insidious disease both before and after 2 November 2005, the commencement date of s 36A of the Workers' Compensation and Rehabilitation Act 2003 (the Act).  The Appellant does not seek to rely on s 36A of the Act to determine the deceased's entitlement to compensation but relies on s 141(1) for this purpose.

Legislation

  1. [8]
    Before turning to the respective arguments it is useful to set out the relevant legislation.

 "36A   Date of injury

  1. (1)
    This section applies if a person -
  1. (a)
    is diagnosed by a doctor after the commencement of this section as having a latent onset injury; and
  1. (b)
    applies for compensation for the latent onset injury.
  1. (2)
    The following questions are to be decided under the relevant compensation Act as in force when the injury was sustained -
  1. (a)
    whether the person was a worker under the Act when the injury was sustained;
  1. (b)
    whether the injury was an injury under the Act when it was sustained.
  1. (3)
    Section 131 applies to the application for compensation as if the entitlement to compensation arose on the day of the doctor's diagnosis.
  1. (4)
    Subject to subsections (2) and (3), this Act applies in relation to the person's claim as if the date on which the injury was sustained is the date of the doctor's diagnosis.
  1. (5)
    To remove any doubt, it is declared that nothing in subsection (4) limits section 236.
  1. (6)
    Subsections (2) to (4) have effect despite section 603.
  1. (7)
    In this section -

   relevant compensation Act means this Act or a former Act."

. . .

 "131  Time for applying

  1. (1)
    An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.
  1. (2)
    If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer's liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.
  1. (3)
    Subsection (2) does not apply if death is, or results from, the injury.
  1. (4)
    An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist.
  1. (5)
    An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to -
  1. (a)
    mistake; or
  1. (b)
    the claimant's absence from the State; or
  1. (c)
    a reasonable cause."

. . .

 "141  Time from which compensation payable

  1. (1)
    The entitlement to compensation for an injury arises on the day the worker is assessed by -
  1. (a)
    a doctor; or
  1. (b)
    if the injury is a minor injury - a nurse practitioner acting in accordance with the workers' compensation certificate protocol; or
  1. (c)
    if the injury is an oral injury and the worker attends a dentist - the dentist.
  1. (2)
    However any entitlement to weekly payment of compensation starts on -
  1. (a)
    if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury - the day after the worker stops work because of the injury; or
  1. (b)
    if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury - the day the doctor, nurse practitioner or dentist assesses the injury.
  1. (3)
    Subsections (1) and (2) are not intended to limit any availability for compensation for the day of injury provided for under part 8.
  1. (4)
    Subsection (2) is subject to section 131(2)."

The Submissions

  1. [9]
    An issue arising in this appeal is the meaning of "assessed by a doctor" in s 141(1).  In the hearing the parties' submissions focused on the meaning determined by Hall P in WorkCover Qld v Downey where it was held that the expression, "assessed by a doctor" as it is used in s 141(1) must be taken to mean "assessed by a doctor as resulting in total or partial incapacity for work".[1]  After the hearing of this appeal had concluded and before the decision could be released, His Honour Martin J heard an appeal which required a determination of the meaning of this expression.  In the circumstances the Commission advised those appearing in this appeal that the decision would be delayed pending the decision in the appeal before the President of the Industrial Court of Queensland.
  1. [10]
    In the decision of Blackwood v Toward,[2] Martin J held that the decision in Downey was no longer to be followed and provided a new interpretation of the expression, "assessed by a doctor".  Following the release of the decision in Toward, those appearing in the present appeal were invited to make supplementary submissions.  Each of those appearing did so.  Those supplementary submissions are incorporated into the précis of the respective positions of the parties and the Employer below.

Appellant's Case

  1. [11]
    The Appellant notes that in accordance with s 131 the deceased's application for compensation was only valid and enforceable if lodged within six months of the point in time at which his entitlement to compensation first arose.  The Appellant submits that because the initial diagnosis of an insidious disease was first made on 20 September 2001 the application is not governed by s 36A.  In those circumstances, another section must apply.  The Appellant submits the relevant section is s 141(1).
  1. [12]
    The Appellant's case is that the entitlement to compensation is triggered by the date on which the deceased was assessed by a doctor.  Although the Appellant's original submissions referenced the meaning of "assessed by a doctor" as determined in Downey, the decision in Toward has not altered the Appellant's view that s 141(1) is the appropriate section triggering the deceased's entitlement to compensation. 
  1. [13]
    The Appellant accepts that the deceased's application was lodged many years after Dr Rigby's diagnosis in September 2001.  In the Appellant's submission, if that amounted to an assessment of the injury within the meaning of s 141(1), then the appeal must fail because it was lodged demonstrably outside the six month period stipulated by s 131(1).  In that case, the Appellant does not ask the Commission to review whether there was a reasonable excuse for not having lodged the application in time.
  1. [14]
    The Appellant submits that in light of the decision of His Honour Martin J in Armstrong v Local Government Workcare,[3] where it was held that in the context of s 36A, the "diagnosis" of an injury must be communicated to the worker, the same must be true of s 141(1).  In those circumstances the Appellant submits that in order for a doctor to "assess" an injury under the  Act there is a twofold test, with both limbs being required to be satisfied:
  1. (a)
    that a doctor or other relevant health professional has evaluated, reached a conclusion or expressed an opinion that the injury arose out of, or was in the course of, the employment; and
  1. (b)
    that conclusion or expression of opinion must have been communicated to the worker.
  1. [15]
    The Appellant submits that the reports of Drs Hammond and Viljoen (doctors who treated the deceased) are silent in respect of any suggestion that a conclusion was reached that the deceased's skin cancers were related to his employment and the deceased was not informed this was the case.
  1. [16]
    The Appellant also rejects the submission that Dr Rigby had discussed with the deceased the relationship between his employment and his skin cancers.  There is no mention in his report of an employment history being taken or reaching a conclusion of a work related injury, i.e., solar induced skin diseases that is malignant.  At best, it may be that he discussed "the mere possibility that he 'could have' a work injury". Further, he did not communicate the conclusion of a work related injury to the deceased. 
  1. [17]
    This evidence has to be considered against the Statutory Declaration of the deceased where he stated that Dr Wagner was "the first doctor to certify my skin condition as being work related."  Given this, the Appellant submits that Dr Wagner's opinion triggered s 141(1).  As Dr Wagner's diagnosis was made and communicated to the deceased on 29 February 2012, the application for compensation lodged on 2 March 2012 was within the time period prescribed by s 131(1).  On that basis, his appeal must succeed.
  1. [18]
    The Appellant disagrees with the view of Regulator and the Employer over the effect of a diagnosis made before the commencement of s 36A.  The Appellant contends that s 36A cannot be triggered by another diagnosis of a latent onset injury on or after 2 November 2005 when the same diagnosis was made prior to the commencement of the section.  The diagnosis referred to in s 36A(1) is the first diagnosis ever made of the injury.  To contend otherwise would be to allow a worker to obtain multiple diagnoses prior to 2 November 2005 but on or after that date, to obtain the same diagnosis so as to trigger an entitlement to lodge an application for compensation.

Employer's Case

  1. [19]
    The Employer framed the argument as "whether s 36A(3) was invoked to set time running for a s 131 application for compensation.  If so, the deceased's application was out of time."
  1. [20]
    The Employer submits that s 36A regulates the entitlement of the deceased to compensation because s 36A(1) was invoked as a result of a diagnosis being made after the commencement date of that section.  Although acknowledging that prior to 2 November 2005 the authorities suggest that the accrual of the limitation period required an injured worker to be "assessed by a doctor resulting in total or partial incapacity for work", after the commencement date, if s 36A is invoked, a different result ensues as the requirement of that section is that a worker "is diagnosed by a doctor after the commencement of this section as having a latent onset injury".  Once that occurs, s 131 applies.
  1. [21]
    The Employer submits that the Legislature specified an event which triggers the entitlement to compensation.  That event is the doctor's diagnosis and it does not matter whether that diagnosis was made both before and after 2 November 2005 because the purpose of s 36A is to vest a person affected by a latent onset injury with a right to compensation on diagnosis by a doctor that the injury has occurred.  It is submitted this construction is consistent with the remedial character of s 36A which allows claims to be made belatedly but concomitantly with time commencing to run under s 131 and giving the worker the benefit of applying under s 131 rather than the application provision under former legislation applicable at the time (see s 603 of the Act).
  1. [22]
    Section 36A allows certainty for the parties as to when an application is to be made.  Further, had the Legislature intended a different interpretation then it could have used words such as "diagnosed [for the first time]" or "diagnosed [no diagnosis having been made prior to commencement]".  It was submitted that the Commission should not read into the statute additional words that are "too big, or too much at variance with the language in fact used by the legislature".[4]
  1. [23]
    The relevant diagnosis made after the commencement date need not be specifically diagnosed as a "latent onset injury" or an "insidious disease".  In Armstrong, it was determined that s 36A is satisfied "if the disease which is diagnosed is an insidious disease".[5]
  1. [24]
    The Employer also submits that reference to an assessment by a doctor is not relevant to the matter.  That much was made clear by His Honour Martin J in Armstrong.[6]
  1. [25]
    In its supplementary submissions, the Employer maintains its position that s 141 does not apply to the present matter.  If it were necessary to consider this provision then the Employer notes the factual difference between the present appeal and Toward.  This appeal deals with a latent onset injury whereas Toward deals with a physical injury.  Further, the medical practitioners in Toward had not directed themselves to the question of whether the injury arose out of Mr Toward's employment at least before the certificate certifying the injury was related to his employment was issued on 1 July 2013.
  1. [26]
    The Employer submits that in the present matter, Dr Rigby had turned his mind to the relationship between the deceased's employment and his skin cancer.  Further, it could be safely assumed through Dr Rigby's usual practices that he had informed the deceased that his disease was attributable to him exposing his skin to the sun over the course of his outdoor life, both at work and domestically.  As a result, Dr Rigby had assessed the deceased's insidious disease within the meaning of s 141(1).
  1. [27]
    The Employer admits it is difficult to pinpoint the precise date of the assessment but submits it occurred sometime between 24 September 2001 and 18 March 2005.  An assessment falling between these dates means that the application for compensation was lodged well outside the time frame permitted by s 131.

Regulator's Case

  1. [28]
    The Regulator's original submissions note that under the Act compensation means both the payment of weekly expenses and the payment of medical treatment, hospitalisation and expenses.  The Regulator comments that s 141(1) concerns an assessment of an injury whereas s 141(2) concerns an assessment for incapacity for work, whether total or partial.  There was no necessity for a doctor to assess the deceased for the purposes of determining his incapacity for work as he had long since retired.  However, an assessment can occur of the injury, here, the sun cancer, or alternatively, of the requirement for treatment because of the injury.
  1. [29]
    The Regulator submits that the findings made by Martin J in Toward support these submissions.  In particular reference was made to the assessment in s 141(1) being directed to whether the worker sustained an injury within the meaning of s 32(1) or (3).  Further, a worker can be compensated for treatment and medication.
  1. [30]
    It was noted that Martin J identified some aspects of the evidence in Toward that were unsatisfactory:
  1. (i)
    There is some uncertainty in the history given by Mr Toward to his treating practitioners and importantly, whether there was a link between the subject event and the treatment being provided to him; and
  1. (ii)
    It had not be established that the treating doctors had directed themselves to the assessment of an injury, whereas each of them was concerned with Mr Toward's treatment and did not direct their minds to the question of which physical injury, if any, arose out of the employment.
  1. [31]
    However, in the present matter, these uncertainties do not exist because of the evidence of Dr Rigby as set out in his report of 4 April 2012. 
  1. [32]
    In light of this, the Regulator contends that Dr Rigby turned his mind to the relationship between the injury and employment as required by s 141(1).  Further, this occurred well before the application was lodged.  Thus, the application was lodged outside the time prescribed by s 131(1) and the appeal must fail.

Conclusion

  1. [33]
    This appeal raises the following questions:
  • which section of the Act applies to the deceased's application for compensation; and
  • in the event s 141 applies, when was the deceased assessed by a doctor.
  1. [34]
    What is the applicable section?:  The Appellant argues that s 36A is not the relevant provision in this case and contends the assessment made under s 141 by Dr Wagner is the event which triggered the entitlement to compensation.  However, the Employer submits that s 36A is the applicable section.  The Regulator's position is that either s 141 or s 36A might apply.
  1. [35]
    Section 131(1) provides that to be valid and enforceable, an application for compensation must be made by a claimant within six months of the entitlement arising.  "Claimant" is defined in Schedule 6 to the Act as "generally, means a person who lodges an application".  The use of the term "person" in the definition is explained by reference to the nature of the workers' compensation scheme, which is not confined to workers:  s 5 of the Act.
  1. [36]
    Section 141(1) is specific to workers.[7]  This section concerns the time from which compensation is payable and provides that the entitlement to compensation arises on the day the worker is assessed by a doctor.  The term "worker" is defined by s 11 and Schedule 2 of the Act.  Section 11 states that a worker is a person who works under a contract of service.  Schedule 2 expands on the meaning of a worker.
  1. [37]
    Section 36A sets the date of injury where a person is diagnosed by a doctor after the commencement of the section as having a latent onset injury and applies for compensation for that injury.  An insidious disease is one that develops gradually and imperceptibly,[8] and, because of this, may only appear after the prospective claimant has ceased working.  In my view, this explains the use of the term "a person" in s 36A and the reason the making of an application for compensation utilising the provisions of this section is not confined to a worker.
  1. [38]
    Consistently with the use of different words - "assessed" in s 141 and "diagnosed" in s 36A - the use of different terms of "a worker" and "a person" in those respective sections also shows that a different meaning is intended.
  1. [39]
    This view is confirmed by the decisions of the Industrial Court of Queensland in Armstrong and Toward.  His Honour Martin J held in Armstrong that s 36A fulfills a different function to s 141[9] and the two sections have different meanings.[10]  Section 36A concerns a doctor diagnosing a person, not necessarily a worker, with a latent onset injury.  It does not require the doctor to evaluate the link between the injury and employment.  Whether the person was a worker under the relevant compensation legislation in force at the time the injury was sustained and whether the injury was an injury under the relevant compensation legislation in force at the time the injury was sustained are questions to be decided, presumably by the insurer.[11]  In contrast, s 141(1) concerns a doctor assessing a worker, as defined by the Act, to evaluate whether the injury is one which satisfies s 32 of the Act.  If it meets that definition then the worker's entitlement to compensation arises on the day of assessment.  Although the definition of compensation in s 9 includes compensation payable under a former Act, I am of the view that s 141(1) concerns only the regulation of the entitlement to compensation of a worker under the Act.
  1. [40]
    To invoke s 141 of the current Act as the Appellant seeks to do, then the deceased was required to have been a worker at the time of the assessment by Dr Wagner - the assessment relied on by the Appellant as triggering the entitlement.  Clearly, he did not fall into that category as he had been retired for about 20 years by that time.  He could not therefore be assessed by Dr Wagner under s 141(1) for the purpose of evaluating whether his injury was one arising under the Act.  In the circumstances any entitlement the deceased might have had to compensation is not governed by s 141(1) of the Act.
  1. [41]
    Both s 36A(1) and s 141(1) require the communication of the diagnosis or the assessment to the prospective claimant.  The Agreed Facts establish that the deceased was informed on 20 September 2001 by Dr Rigby of his diagnosis that he was suffering from the disease.
  1. [42]
    Even were the Employer's argument to be correct that it does not matter whether the person was diagnosed both before and after 2 November 2005 and only lodged the application for compensation after that date, the Agreed Facts clearly show the deceased was diagnosed with an insidious disease by his treating doctors on numerous occasions in the period from 2 November 2005 to August 2011.  The application was lodged on 1 March 2012, well beyond the first diagnosis made after the commencement of s 36A and outside the time period prescribed by s 131(1).
  1. [43]
    When was the deceased assessed by a doctor?:  In the event I am wrong in my conclusion that s 141 does not apply to this case, I will consider when the deceased was assessed by a doctor. 
  1. [44]
    The decision of His Honour Martin J in Toward makes clear that the assessment by a doctor required by s 141(1) involves both the evaluation, reaching of a conclusion or expressing an opinion that the worker has suffered a personal injury arising out of, or in the course of employment, if the employment is a significant contributing factor to the injury and the communication of that conclusion or opinion.  Martin J- does not indicate in Toward to whom the conclusion or opinion should be expressed.  Ordinarily, it would be expected that the communication would be given to the worker directly but, given the nature of workers' compensation matters, it may be that the communication is made to the worker via another health practitioner or a lawyer. 
  1. [45]
    The Appellant contends the first expression of a medical practitioner's opinion to the deceased that his injury was related to his employment was by Dr Wagner in his report of 29 February 2012.  In contrast, the Employer and the Regulator submit that this was done by Dr Rigby who told him of this connection sometime between 24 September 2001 and 18 March 2005. 
  1. [46]
    In his Statutory Declaration, the deceased relies on Dr Wagner being the first medical practitioner to certify that his skin disease as being a work related injury.  This was the first written expression of a medical practitioner's opinion as to the relationship between the deceased's injury and his employment.  The deceased's Statutory Declaration omits any mention of what other medical practitioners told him about the cause(s) of his injury.  In my view, this omission is telling particularly as his Statutory Declaration is couched in language of the Act and does not refer to the more common usage of "skin" or "sun" cancer.
  1. [47]
    I do not understand that the expression of a conclusion or opinion by a medical practitioner that the injury is work related is required to be in writing, albeit that a workers' compensation medical certificate may be required to support an application for compensation.  In my view, just as a diagnosis can be communicated orally to a potential claimant so too can an assessment.  Once the assessment has been communicated then consideration may be given to making an application for compensation including the issuing of a workers' compensation medical certificate.
  1. [48]
    Dr Rigby's report requires consideration to determine whether he expressed to the deceased his opinion that his injury was work related.
  1. [49]
    Dr Rigby's report dated 4 April 2012, in response to questions asked by LGW, states:

"I note and confirm the attendances provided by you in summary form at our surgery from 24/09/2001 to 18/03/2005 which confirm multiple excisions of skin malignancies.  I therefore respond to your questions.

  1. Diagnosis of solar induced skin disease 20/09/2001.
  1. It is my belief that squamous cell carcinoma is now accepted as being a result of solar induced, work related exposure.
  1. I would find it unusual that at some time prior to the 8th April 2011 i.e. from the period of 24/09/2001 to 18/03/2005, that it was not discussed during the consultation that:
  1. he suffered from solar induced disease
  2. his condition could have been due to sun exposure in the work place.
  3. that his tumours were a manifestation of solar induced disease, malignant and he was likely to develop others.

I say this as it is has been my common, standard, usual practice over hundreds of patients and decades of performing skin malignancy consultations that it is my habit to discuss these very details as it usually forms an integral part of the consultation and therefore advice I give for future solar protection.

  1. I do not believe there is any new condition diagnosed in Dr Wagner's report that has not been treated previously by myself."
  1. [50]
    The Appellant takes issue with Dr Rigby's statement that "his condition could have been due to sun exposure in the work place" contending that this suggests "mere possibility" rather than any certainty.  However, Dr Rigby's report must be considered in its entirety.  Although Dr Rigby cannot be expected to have a precise recollection of the consultations given the passage of time since then, he refers to his usual practice of canvassing with patients such matters as to how the condition could have developed as this was integral to his consultation.  The Employer submits, and I accept, it can be safely inferred that in light of the numerous attendances of the deceased on Dr Rigby, together with the location, severity and number of skin carcinomas, that Dr Rigby communicated to the deceased that his disease was attributable to both his outdoor employment and other outdoor activities.
  1. [51]
    For these reasons I reject the Appellant's submission that both limbs of the assessment required by s 141(1) were satisfied only by Dr Wagner's report.
  1. [52]
    The Appellant specifically stated that the Commission was not being asked to consider waiving the time limits for the reasons set out in s 131(5) of the Act.
  1. [53]
    The appeal is dismissed.  The Commission confirms the decision of the Regulator to reject the application for compensation.
  1. [54]
    Costs are reserved.
  1. [55]
    Order accordingly.

Footnotes

[1] WorkCover Qld v Downey (2001) 168 QGIG 381, 382.

[2] Blackwood v Toward [2015] ICQ 008.

[3] Armstrong v Local Government Workcare [2014] ICQ 007 [26]-[27].

[4] Taylor v The Owners Strata Plan No 11564 [2014] HCA 9 [38].

[5] Armstrong v Local Government Workcare [2014] ICQ 007 [44].

[6] Ibid [29]-[32].

[7] In Blackwood v Toward, Martin J states that "Section 141(1) concerns the worker":  Blackwood v Toward [2015] ICQ 008 [29].

[8] Armstrong v Local Government Workcare [2014] ICQ 007 [6].

[9] Ibid [32].

[10] Ibid [29].

[11] Ibid [32].

Close

Editorial Notes

  • Published Case Name:

    Pocock as executor of the estate of Pocock v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Pocock as executor of the estate of Pocock v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 83

  • Court:

    QIRC

  • Judge(s):

    Fisher IC

  • Date:

    14 May 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Armstrong v Local Government Workcare [2014] ICQ 7
8 citations
Jump To
Cite 1 - [2014] ICQ 7
Cite 2 - [2014] ICQ 7
Cite 3 - [2014] ICQ 7
Cite 4 - [2014] ICQ 7
Cite 5 - [2014] ICQ 7
Cite 6 - [2014] ICQ 7
Cite 7 - [2014] ICQ 7
Cite 8 - [2014] ICQ 7
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
2 citations
Jump To
Cite 1 - [2014] HCA 9
Cite 2 - [2014] HCA 9
WorkCover Queensland v Downey (2001) 168 QGIG 381
2 citations
Jump To
Cite 1 - (2001) 168 QGIG 381
Cite 2 - (2001) 168 QGIG 381
Workers' Compensation Regulator v Toward [2015] ICQ 8
3 citations
Jump To
Cite 1 - [2015] ICQ 8
Cite 2 - [2015] ICQ 8
Cite 3 - [2015] ICQ 8

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.