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Trewin v Workers' Compensation Regulator QIRC 96
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Trewin v Workers' Compensation Regulator  QIRC 096
Trewin, Timothy George
Workers' Compensation Regulator
Appeal against decision of the Workers' Compensation Regulator
19 June 2019
24 April 2019 (Hearing)
4 June 2019 (Respondent submissions)
7 June 2019 (Appellant submissions)
WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – whether worker has a diagnosis of Chronic Obstructive Pulmonary Disease - COPD
Workers' Compensation and Rehabilitation Act 2003, s 32, s 36.
Drew v Makita (Australia) Pty Ltd  2 Qd R 219
Coles Supermarkets Australia Pty Ltd v Blackwood  QIRC 011
Mr M Holmes of Counsel, instructed by Taylors' Solicitors, for the Appellant.
Mr S McLeod QC, directly instructed by the Workers' Compensation Regulator.
Reasons for Decision
- The appeal challenges the decision of the Respondent affirming the decision of Xtra Care, to reject the Appellant's application for Chronic Obstructive Pulmonary Disease (COPD) in accordance with ss 32 and 36A of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act).
- The Appellant has accepted injuries of:
- Chronic bronchitis; and
- Mild emphysema
- That the Appellant is a "worker" and that employment is a significant contributing factor of the injury is not at issue.
- The sole issue to be determined in this appeal is whether the Appellant has a diagnosis of COPD.
- The Appellant provided evidence of his work history, including his history of exposure to silica and coal dust on various occasions and in a variety of roles throughout this employment at a number of mines.
- While this evidence provided some background, it does not require further consideration as the parties agree that the exposure to dust which gave rise to the accepted injuries was through his employment.
- The witness provided his evidence-in-chief and was not cross-examined.
- Two expert witnesses provided evidence before the Commission.
- Professor Cohen for the Appellant; and
- Dr McKeon for the Respondent.
- The evidence of each expert is considered below.
Evidence of Professor Cohen
- Professor Cohen is a physician with a speciality in internal medicine, respiratory medicine, pulmonary medicine and critical care medicine. He is currently consulting with the Queensland Department of Natural Resources, Mining and Energy on a number of different projects, one of which is to assist in the classification of chest images of coalminers and another which involves providing training for supervising medical doctors to update their training and understanding of coal mine dust lung diseases. He has also performed work for Queensland WorkCover and Office of Industrial Relations in providing advice on compensation schemes for coalminers diagnosed with various forms of coal mine dust lung disease.
- Professor Cohen has worked with coalminers and coal mine dust lung diseases since 1998. In that time, he stated that he has seen well over 1000 coal mine workers with coal mine dust lung disease and has published widely in the area.
- Professor Cohen provided a report, undated (received by the Appellant's solicitors on 3 January 2019) that the Appellant suffered from coal mine dust lung disease. He based his opinion on the following evidence:
- Mr Trewin has a history of 15 years of coal mine employment with significant coal mine dust exposure.
- Mr Trewin has chest imaging evidence of minimal emphysema,
- He has physiologic evidence of gas exchange abnormalities which could be attributable to his minimal emphysema seen on imaging as well as coal mine dust lung disease not apparent on imaging. This impairment also appears to be worsening. The etiology of this is his 15 years of coal mine dust exposure. He has a negligible history of tobacco smoke exposure which I do not believe is a significant contributor. He has diffusion impairment which also appears to be getting worse, and has been demonstrated on all complex lung function tests.
- The report also stated that
Emphysema and chronic bronchitis are both diagnoses that can be made without a reduction in the FEV1/FVC ration. Emphysema is a pathologic/anatomic diagnosis made on the basis of chest imaging and or pathologic specimens. In Mr Trewin's case, I believe there are early changes of minimal emphysema on his HRCT. This is supported by his low diffusion capacity. Chronic bronchitis on the other hand is purely a clinical diagnosis based on the presence of a cough with sputum production on most days of the week for more than 3 months out of the year for more than 2 years. Mr Trewin has a daily cough with sputum production for over 10 years and clearly meets this diagnosis. Either one of these diagnoses, Emphysema or Chronic Bronchitis is subsumed under the diagnosis of COPD. He clearly has this.
- During examination-in-chief, Professor Cohen explained the process he went through in diagnosing the Appellant.
- Finally, Professor Cohen confirmed his diagnosis
Mr Holmes: In respect of the diagnosis that has been made of Mr Trewin's condition, that is, a finding of emphysema and also a finding of chronic bronchitis, are you – on the balance of probabilities, are you satisfied that with those diagnoses – that Mr Trewin has a diagnosis of COPD?
Professor Cohen: I think when you put this whole case together – when you look at the emphysema, the chronic bronchitis, the obstructive physiology and the diffusion impairment – I'm very comfortable in making that diagnosis.
- Under cross-examination, Professor Cohen was asked if his diagnosis of COPD had come about as a result of the two underlying diagnoses of chronic bronchitis and emphysema. He answered that these underlying diagnoses would not automatically lead to a diagnosis absent the physiology.
- Professor Cohen was consistent in response to a range of questions asked under cross-examination and in response to questions that I asked, that his diagnosis of COPD was based on the diagnoses of chronic bronchitis and emphysema, the low ratio and the low diffusion capacity.
Evidence of Dr McKeon
- Dr McKeon, thoracic physician, provided two reports:
- (a)31 October 2017; and
- (b)20 December 2017.
- In his report dated 31 October 2017, Dr McKeon stated that the Appellant has chronic rhinitis and some chronic bronchitis, probably due to dust exposure at work.
- Most relevantly, Dr McKeon stated, "There is no evidence of chronic obstructive pulmonary disease (COPD) on spirometry".
- In the second report on 20 December 2017, Dr McKeon was asked to comment on whether the Appellant had COPD. He maintained that the Appellant did not have COPD
Chronic obstructive pulmonary disease (COPD) is diagnosed from spirometry. The spirometry on 26 October 2017 was normal. Mr Trewin does not have chronic obstructive pulmonary disease (COPD) on spirometry. It is not reliable to diagnose chronic obstructive pulmonary disease (COPD) from a chest x-ray or Computed Tomography (CT) Scan; and
Mr Trewin does not have chronic obstructive pulmonary disease (COPD) as defined by spirometry.
- During cross-examination, Dr McKeon was asked to comment on a series of lung function testing scores, including spirometry testing data from 23 November 2018 which was previously unavailable to him.
- Dr McKeon agreed that the 23 November 2018 results suggested that the Appellant was developing COPD or was "borderline or very close to the lower limits of normal".
- Dr McKeon was asked whether he was prepared to accept the Appellant would be classified as having COPD based on the "whole big picture" of an accepted diagnosis of emphysema on radiology; an accepted condition of bronchitis; an anatomical diagnosis of emphysema that can explain the reduction in his diffusion capacity and barometry which is very close to the lowest limits of normal, he said
Dr McKeon: Well, I – probab – he's very likely to get it. But I – there's just not – in my view this is just a – there's just not quite enough evidence to say 100 per cent. But I'd say very, very likely, yes. And in the way he's developing he's very likely to in the future produce barometry which is – shows COPD consistently.
- Relevantly, following a series of further questions, Dr McKeon stated, "The ratio's low, but I agree with you. I think the likelihood is – you know, if I had to say what's the likelihood that he really does have COPD I'd say it's more than 50 per cent."
- Upon re-examination, Dr McKeon stated, in response to a question whether the 50 per cent likelihood of getting COPD was now or in the future:
Dr McKeon: Well he's got it on one test. So you could say yes he had it on one test. And then look, there's a trend. His ratio's falling. But – yeah. And he's been exposed and he's got a DLC. I mean, I suppose you could put it all together. So – I – it's a very difficult case, but I would've thought the likelihood that he really does have COPD is – is probably more than 50 per cent.
Mr McLeod: What, now?
Dr McKeon: Now. Yeah.
- Dr McKeon further confirmed his opinion when I asked him a question following
Commissioner: But you've just talked then about about [sic] a range – you've just put together a range of things that, when put together, you're saying give you a sense that it's – it's more likely – or it's on the – it's more – it's – it's more likely than 50 per cent that based on a range of factors, Mr Trewin has COPD. Can you just – before we let you go – can you just take me through, again, what in your mind are those – are those factors? Are these…?...
Dr McKeon: Well, the crucial factor's the spirometry. So you have to remember, when I did the report on 31st October 2017 and 20th of December 2017, I didn't have available to me that last function that was done on the 23rd of November 2018. So, that's – that's a crucial test, that one test does show COPD.
Commissioner: Sorry, I---?---
Dr McKeon: That's definitely evidence in favour of COPD.
Dr McKeon: And then the other evidence is that interesting result that – that Matthew Holmes has shown me which was tabulated by Dr Peter Cohen showing a re – a regressive reduction in the FEV1 and FVC ratio. That – that's also evidence of a progressive disease like COPD. And then the third evidence is the line [indistinct] which I haven't been able to explain by any other phenomenon, other than emphysema.
Dr McKeon: So if you put all together, put it all, add it up to emphysema and progressive disease due to COPD.
- Professor Cohen was clear in his view that the Appellant has a diagnosis of COPD and was consistent throughout his evidence as to how he arrived at the diagnosis.
- Dr McKeon, was presented with the spirometry test of 23 November 2018 and the declining FEV1/FEC and DCLO results of complex lung function testing undertaken on
- 11/06/2018; and
Dr McKeon came to the view that it was more likely than not that the Appellant suffered from COPD.
- The Respondent submits that the evidence given by Dr McKeon, when considered as a whole, reveals that the Appellant is highly likely to develop COPD, however, and importantly, he has not to date developed COPD.
- I do not agree with the Respondent's assessment of Dr McKeon's evidence. As is explored through his evidence at  to , Dr McKeon based his acceptance of the proposition that the Appellant had COPD on spirometry and other data presented to him that was not available when he wrote his two reports. He confirmed this opinion several times in response to questions from counsel for the Appellant, the Respondent and the Commission.
- There are some established approaches that assist when competing or conflicting expert opinions are put before the decision maker. In the matter at hand, I would not characterise the expert opinions as conflicting. Both experts agree that the Appellant has COPD. However, there is a difference in the modality of each.
- It is the case that Professor Cohen appeared more decisive in his diagnosis/opinion than Dr McKeon, however, in my view a number of factors could explain that:
- Professor Cohen has a lot more experience with coal miners than does Dr McKeon;
- Dr McKeon had only recently been presented with the 23 November 2018 report; and
- Dr McKeon expresses a view that COPD is diagnosed on the basis of spirometry whereas Professor Cohen arrives at his diagnosis using a range of indicators.
- In any case, having regard to the levels of expertise, and specialisation in the area of coal mine dust lung diseases of both expert witnesses, I prefer the evidence of Professor Cohen.
- On the basis of this, I am satisfied that on the balance of probabilities the Appellant does have a diagnosis of COPD and that the Appellant has developed a personal injury in accordance with s 32 of the WCR Act and that the COPD is a latent onset injury within the meaning of s 36A of the WCR Act.
- The appeal is allowed.
- The decision of the Regulator dated 15 May 2018 is set aside and substituted with a decision that the claim by Timothy Trewin is one for acceptance.
- The Respondent is to pay the Appellant's costs of and incidental to the appeal.
 T1-19, Ln 6-22 - T1-20, Ln 3-10.
 T1-29, Ln 5-25.
 T1-29, Ln 26-43.
 Exhibit 32.
 Exhibit 32.
 T1-36, Ln 6-12.
 T1-37, Ln15-40.
 T1-38, Ln 1-36; T1-41, Ln 27-32.
 Exhibit 30.
 Exhibit 31.
 Exhibit 30 at page 11.
 Exhibit 31 at page 7.
 Exhibit 31 at page 10.
 T1-51, Ln 18 - 21.
 T1-52, Ln 39.
 T1-52, Ln 27 - 39.
 T1-52, Ln 42 - 45.
 T1-53, Ln 23 - 24.
 T1-53, Ln 38 - 45.
 T1-54, Ln 19-39.
 Exhibit 24.
 Exhibit 25.
 Exhibit 33.
 Exhibit 27.
Drew v Makita (Australia) Pty Ltd  2 Qd R 219 at ; Coles Supermarkets Australia Pty Ltd v Blackwood  QIRC 011.
T1-46, Ln 28 - 29.
Exhibit 5 (Annexure C Curriculum Vitae of Professor Cohen); and Exhibit 30 (Curriculum Vitae of Dr McKeon.
- Published Case Name:
Trewin v Workers' Compensation Regulator
- Shortened Case Name:
Trewin v Workers' Compensation Regulator
 QIRC 96
Member Pidgeon IC
19 Jun 2019