Armstrong v Local Government Workcare [2014] ICQ 7

INDUSTRIAL COURT OF QUEENSLAND CITATION: Armstrong v Local Government Workcare [2014] ICQ 007 PARTIES: ROBYN JOY ARMSTRONG AS LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF THE LATE ROBERT ALFRED BURGESS (appellant) v LOCAL GOVERNMENT WORKCARE (respondent) CASE NO/S: C/2013/26 APPEARANCES: M Grant-Taylor QC and S Tzouganatos on behalf of the appellant, instructed by Turner Freeman Lawyers R J Douglas QC and S McLeod on behalf of the respondent, instructed by Gadens PARTIES: SIMON BLACKWOOD (WORKERS COMPENSATION REGULATOR) (appellant) v LOCAL GOVERNMENT WORKCARE (respondent) CASE NO/S: C/2013/27 APPEARANCES: P O’Neill on behalf of the appellant, directly instructed R J Douglas QC and S McLeod on behalf of the respondent, instructed by Gadens PROCEEDING: Appeal DELIVERED ON: 17 April 2014 HEARING DATE: 10 December 2013 MEMBER: Martin J, President ORDER/S: Each appeal dismissed CATCHWORDS: WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – TIME FOR CLAIM – where a worker suffered from an “insidious disease”, namely skin cancer, within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 – where the Workers’ Compensation and Rehabilitation Act 2003 required that a notice of claim in respect of such a disease be lodged no more than six months after the diagnosis of the condition by a doctor – where the appellant was treated for skin cancer in 2007 – where the appellant claimed to have -- 1 of 12 -- 2 been diagnosed in October 2011 – where the appellant signed and lodged an application for compensation in November 2011 – whether the appellant’s application was out of time Acts Interpretation Act 1954, s 32, s 32A, s 32AA Workers’ Compensation and Rehabilitation Act 2003, s 32, s 36A, s 131, s 141 CASES: Epic Energy v Commissioner of State Revenue (2011) 43 WAR 186; [2011] WASCA 228 Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 House of Peace Pty Ltd v Bankstown City Council (2008) 48 NSWLR 498; [2000] NSWCA 44 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Truong v R (2004) 223 CLR 122; [2004] HCA 10 Warringah Council v Kazi & Anor (2008) 71 NSWLR 84; [2008] NSWCCA 6 WorkCover Queensland v Downey (2001) 168 QGIG 381; [2001] QIC 76 Zuvela v Cosmarnan Concrete Pty Ltd (1996) 71 ALJR 29; [1996] HCA 30 [1] On about 15 November 2011 Robert Burgess signed and lodged an application for compensation for a latent onset injury. The self-insurer, Local Government WorkCare (“LGW”), rejected the application on the basis that it had been lodged outside the six month time limit imposed by s 131 of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”). That decision was reversed by Q-Comp and that reversal was then appealed to the Commission by LGW. [2] Mr Burgess had worked for the Albert Shire Council, and its successor, the Logan City Council, as an overseer from 1973 to 1993. He was required to spend most of his work time outdoors. [3] On 6 October 2011 Mr Burgess consulted Dr Wagner. On 6 November Dr Wagner issued a workers’ compensation certificate which stated his diagnosis as “solar induced skin disease that is malignant”. In an accompanying report of the same date, Dr Wagner says: “Mr Burgess’s Queensland workplace sun exposure has contributed significantly to the development of his solar induced skin disease …” [4] The Commission found that a Dr O’Connor had diagnosed Mr Burgess in 2007 with having skin disease that was malignant1. The Commission held that the doctor’s “reference to sun cancer and in the context of the development of and diagnosis of a number of BCCs and SCCs in the space of a few months is sufficient to satisfy a diagnosis of latent onset injury in s 36A(1)(a) of the Act”. It followed, the Commission held, that the application for compensation was not made within the timeframe provided by s 131 of the Act. 1 Local Government Workcare AND Q-COMP and Robert Burgess (WC/2012/123). -- 2 of 12 -- 3 Legislative provisions [5] So far as it is relevant, s 32 defines injury in this way: “(1) An injury is personal injury arising out of, or in the course of, employment if— (a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or …. (3) Injury includes the following— (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation— (i) a personal injury other than a psychiatric or psychological disorder; (ii) a disease; (iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation; …” [6] A “latent onset injury” is defined in Schedule 6 of the Act as “an insidious disease”. Insidious disease is not defined in the Act, but, in these circumstances, it may be taken to mean a disease which develops gradually and imperceptibly. It is not in contest that solar induced skin cancer is an insidious disease. The contest is about when it was first diagnosed within the meaning of the Act. [7] Section 36A deals with latent onset injuries: “(1) This section applies if a person— (a) is diagnosed by a doctor after the commencement of this section as having a latent onset injury; and (b) applies for compensation for the latent onset injury. (2) The following questions are to be decided under the relevant compensation Act as in force when the injury was sustained— (a) whether the person was a worker under the Act when the injury was sustained; (b) whether the injury was an injury under the Act when it was sustained. (3) Section 131 applies to the application for compensation as if the entitlement to compensation arose on the day of the doctor’s diagnosis. (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. -- 3 of 12 -- 4 (5) To remove any doubt, it is declared that nothing in subsection (4) limits section 236. (6) Subsections (2) to (4) have effect despite section 603. (7) In this section— relevant compensation Act means this Act or a former Act.” [8] The importance of the date of diagnosis arises from s 36A(4) which provides that, in relation to a person’s claim, the date of diagnosis is taken to be the date on which the injury was sustained. [9] Section 131 provides: “(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. (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. (3) Subsection (2) does not apply if death is, or results from, the injury. (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. (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— (a) mistake; or (b) the claimant’s absence from the State; or (c) a reasonable cause.” [10] Section 141 provides: “(1) The entitlement to compensation for an injury arises on the day the worker is assessed by— (a) a doctor; or (b) if the injury is a minor injury—a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or (c) if the injury is an oral injury and the worker attends a dentist—the dentist. (2) However, any entitlement to weekly payment of compensation starts on— (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 (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. -- 4 of 12 -- 5 (3) Subsections (1) and (2) are not intended to limit any availability for compensation for the day of injury provided for under part 8. (4) Subsection (2) is subject to section 131(2).” [11] This is another poorly drafted section in an Act which is burdened with more than a few examples of poor drafting. It has been held that the assessment by a doctor referred to in s 141(1)(a) should be read as meaning “assessed by a doctor as resulting in total or partial incapacity for work”2. The Appeals [12] The case for each appellant also relied upon the case for the other. I will deal with them together. [13] In the appellants’ case the following are said to be errors in the Commissioner’s reasoning: (a) Holding that the first criterion in s 36A(1)(a) is satisfied “merely by a doctor making a diagnosis that the person has a latent onset injury without reference to whether the injury was work related”. (b) Finding that the diagnosis and treatment of individual lesions by Dr O’Connor involved a diagnosis of the underlying pathology that predisposes the skin to developing solar related skin malignancies and the diagnosis of a latent onset injury for the purposes of s 36A. (c) Finding that there had been a diagnosis made by Dr O’Connor that Mr Burgess was suffering from a latent onset injury. (d) Finding (against the weight of the evidence) that there was sufficient evidence from which to infer that Dr O’Connor formed the opinion that prolonged sun exposure predisposed Mr Burgess to malignant skin lesions which developed due to his underlying pathology. [14] The determination of the first issue involves: (a) the proper construction of s 36A of the Act, (b) what the word “diagnosis” in s 36A(4) means, and (c) whether “latent onset injury” means more than “insidious disease”. [15] The Commissioner construed s 36A in the following way: “[37] … Section 36A is concerned with the determination of a date when a latent onset injury arises. This is required so that certain matters can be determined under the relevant compensation legislation in force when the injury was sustained as well as determining when s. 131 is activated. Section 36A(1)(a) only requires in respect of diagnosis, that a person is diagnosed by a doctor after the commencement of the section as having a latent onset injury. The term "latent onset injury" is a composite term and as mentioned earlier has a specific definition in Schedule 6 of "an insidious disease". I consider that in respect of s. 36A(1)(a) the word "injury" cannot be excised and dealt with separately. Once the diagnosis of a latent onset injury, i.e., a insidious disease, has been made and the person applies for compensation, questions of injury are then triggered, including whether it was an injury under the relevant compensation Act when it was sustained: see s. 2 WorkCover Queensland v Downey [2001] QIC 76. -- 5 of 12 -- 6 36A(2)(b). A latent onset injury, even if diagnosed after 2 November 2005, is not necessarily an injury under s. 32 of the Act because consideration needs to be given to the relevant compensation Act in force at the time the latent onset injury was sustained. [38] Further, and according to the definition cited above, a diagnosis is only the identification of a disease from a patient's symptoms. This cannot extend to consideration of the elements of injury as it was defined under the relevant compensation Act. Of course, medical opinion will usually be required to assist in determining whether the latent onset injury was an injury under the relevant compensation Act when it was sustained because consideration needs to be given to issues such as the contribution of employment. Different legislation provided different standards of contribution of employment for the disease provisions of "injury", such as "a contributing factor"; "the major significant contributing factor" and "a significant contributing factor". However, I consider that the first criterion under s. 36A(1)(a) is satisfied by a doctor making a diagnosis the person as having a latent onset injury without reference to the applicable standard of contribution of employment. [39] From this, it follows that I need to consider the diagnoses made by the various doctors to determine when a diagnosis of solar induced skin disease that is malignant was first made without, necessarily, reference to considerations of employment.” [16] The general approach to the construction of statutes was considered in Project Blue Sky v Australian Broadcasting Authority.3 The following principles may be drawn from it: (a) The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. (b) The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. Thus, the process of construction must always begin by examining the context of the provision that is being construed. (c) Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other” . Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 3 (1998) 194 CLR 355, especially at [69]-[71]. -- 6 of 12 -- 7 (d) A court construing a statutory provision must strive to give meaning to every word of the provision. [17] The appellant in each appeal argues that: (a) The concept of “latent onset injury” carries with it the definition of “injury” in s 32. (b) Given that, in s 141, the expression “assessed by a doctor” must be taken to mean “assessed by a doctor as resulting in total or partial incapacity for work”4 it would be inconsistent for s 36A to be read in a way which it made it more difficult for workers with insidious diseases to claim compensation by deeming the entitlement to compensation to have arisen upon a doctor’s diagnosis of injury with reference to its connection with work. (c) The significance attached by the Commissioner to s 36A(2) was misplaced for two reasons: (i) Whenever s 36A(1) is set aside then, by virtue of s 36A(4), “the relevant compensation Act” is always the Act, (ii) The questions raised in s 36A(2)(a) and (b) would still have to be answered even if a doctor’s diagnosis included an opinion as to whether work was a contributing factor. (d) the absence from s 36A(1)(a) of a requirement for a doctor to form an opinion about whether an injury has been caused or significantly contributed to by a worker’s conditions is incongruous with the remedial nature of the Act. What is the meaning of “latent onset injury”? [18] The true meaning of s 36A (and other sections in the Act) is made harder to determine by the continual use of the passive voice, eg, “are to be decided” in s 36A(2). The use of the passive voice presents difficulty in identifying those to whom the command is directed and those for whose benefit the command is made.5 It is “a legislative drafting practice as undesirable as it is frequent”.6 [19] The appellant’s argument is that “latent onset injury” should be read by combining the definition of latent onset injury in Schedule 6 with the definition of “injury” in s 32. Thus, it could be taken to mean: an insidious disease contracted in the course of employment etc. [20] The first consideration in the construction of the term is that when, in Schedule 6, the following definition is given: “Latent onset injury means an insidious disease” it is intended that the definition of latent onset disease is exhaustive.7 [21] Secondly, there are provisions of the Acts Interpretation Act 1954 which also bear upon this. They are: 4 WorkCover Queensland v Downey [2001] QIC 76. 5 Truong v R (2004) 223 CLR 122 at [100]. 6 Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532 at [35]. 7 Warringah Council v Kazi & Anor (2008) 71 NSWLR 84 at [17]; Epic Energy v Commissioner of State Revenue (2011) (2011) 43 WAR 186at [139], [224]. -- 7 of 12 -- 8 “32 Defined terms—other parts of speech and grammatical forms If an Act defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings. 32A Definitions to be read in context Definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires. 32AA Definitions generally apply to entire Act A definition in or applying to an Act applies to the entire Act.” [22] Section 32 of the Acts Interpretation Act does not have the effect of inserting into the term “latent onset injury” the meaning of “injury” alone. That section has the effect, for example, of applying the definition of “injury” to the word “injuries” if it appeared in the Act. [23] The reference in s 36A(2)(a) to “when the injury was sustained” demonstrates an assumption that the term “injury” includes “latent onset injury”. The words used in s 36A are consistent with “latent onset injury” being treated as a type of “injury”. [24] Section 36A(4) operates to apply the Act in relation to the claim “as if the date on which the injury was sustained is the date of the doctor’s diagnosis”. There is no reason to read “injury” in that sentence as being anything other than an “injury” as defined in s 32 of the Act. Reading it that way is also consistent with the requirement of s 32AA of the Acts Interpretation Act. What does “diagnosed” in s 36A(1)(a) mean? [25] The appellants contend that “diagnosed” should be read as going beyond the mere identification of a latent onset injury and include the connection that the injury has with the worker’s employment. The respondent argues that there is not even a need for the doctor to tell the patient what the diagnosis is. [26] The intent of s 36A is to set up a mechanism whereby someone with an insidious disease can seek compensation if other prerequisites are met. It is inconsistent with the premise of s 36A, namely, that a person is diagnosed with a latent onset injury and then applies for compensation, that the diagnosis is not conveyed to the person. It is not consistent with s 36A that the diagnosis should remain a secret from the patient. “Diagnosis” has been described as a mere act of cerebration by a doctor – the formation of an opinion and nothing more. But, in circumstances where it is characterised as the trigger for the entitlement to compensation, it would be inconsistent with the intent of this archetypal piece of remedial legislation for “diagnosis” to be construed in a way that would allow an uncommunicated opinion to lie quietly, ticking away, as the time limit for making an application ran out. [27] For a “diagnosis” of a latent onset injury to activate a time period in a statute which has, as one of its objects, the establishment of a scheme to provide “benefits for workers who sustain injury in their employment”8 it must be a diagnosis which is given to the prospective applicant. 8 s 5(1)(a) of the Act. -- 8 of 12 -- 9 [28] I turn now to the second part of the appellants’ argument on the meaning of “diagnosis”. It was argued that “diagnosed” should be read in the same way that Hall P read “assessed” as it appeared in s 168 of the WorkCover Queensland Act 1996. Both s 158 and s 168 of that statute, are, for these purposes, identical to s 131 and s 141 of the Act. In WorkCover Queensland v Downey9 he said: “Because subs. (2) operates as an exception to or a limitation upon the operation of subs. (1), it seems to me that the expression “assessed by a doctor” (or for that matter “assessed by a dentist”) must be taken to mean “assessed by a doctor as resulting in total or partial incapacity for work”. I.E., where the commencement of the limitation period is said to be triggered by the activity of a doctor, it is necessary to show that a doctor has assessed the alleged injury as involving partial or total incapacity. The exception or limitation at s. 168(2) both protects the worker against a doctor retrospectively unleashing the limitation period by an assessment that the total or partial incapacity was present many months ago, and protects insurers against an assessment that total or partial incapacity has been present for a few months. The legislature must have intended that s. 168 will be used in the interpretation of s. 158. The legislature had both sections present to the mind at the same time. Section 168(4) expressly refers back to s. 158(2).” (emphasis added) [29] The use of different words – “assessed” in s 141 and “diagnosed” in s 36A – strongly suggests that a different meaning is intended. The word “assessed” is used elsewhere in the Act in relation to the degree of impairment that an injured worker has suffered, e.g., s 132A(2), s 178(2), s 179, s 182 and s 186. The construction favoured by Hall P is consistent with that use of “assessed” in those provisions. [30] The word “diagnosis” is only used in two sections – s 36A and s 39A.10 In the latter section it is concerned with the diagnosis of a terminal condition. In both sections it concerns the identification of a medical condition. [31] It is not uncommon for resort to be had to dictionaries to assist in determining the meaning of a word in a statute.11 The Macquarie Dictionary and the Australian Oxford Dictionary disclose what might be expected – “diagnosis” is the identification of a disease. Some dictionaries, though, do include in the definitions of “diagnosis” a reference to assigning a cause of the disease which has been diagnosed. The relevant conclusion to be drawn from the many dictionary definitions is that assignment of a cause of a disease is not a necessary part of the definition. [32] The reasoning applied by Hall P with respect to “assessed” in the predecessor to s 141 is neither necessary nor appropriate to discern the meaning of “diagnosed” or “diagnosis”. Section 36A fulfils a different function. For example, s 36A(2) directs someone (presumably the insurer) to decide whether the applicant was a worker under the Act and whether the injury was an injury under the Act. In other 9 [2001] QIC 76. 10 “Diagnosed” is also found in the transitional provisions in s 669. 11 House of Peace Pty Ltd v Bankstown City Council (2008) 48 NSWLR 498. -- 9 of 12 -- 10 words, the aetiology of the injury is to be determined by someone else. Whether the applicant has been told what caused the injury is not relevant to s 36A. It, and s 131, provide an applicant with a six month period in which to determine whether to make an application. [33] I turn now to the grounds of appeal concerning the diagnoses which were made of Mr Burgess. If Mr Burgess was diagnosed outside the six month period preceding the lodging of his application then it was out of time. The medical evidence [34] The Commission heard evidence from three doctors who had treated Mr Burgess – Drs Louie, Mor, and O’Connor. It was the respondent’s case in the Commission that the relevant diagnosis was made in February 2007. In that month Dr O'Connor examined Mr Burgess in respect of skin lesions he had on his left ear. Testing confirmed that the lesions were basal cell carcinomas. Mr Burgess was then referred to Dr Louie for treatment. [35] None of the doctors called had a specific memory of the examination or treatment of Mr Burgess. That is not surprising, given the time which has elapsed. [36] Dr Louie said he saw Mr Burgess in March 2007 for the specific purpose of excising the basal cell carcinoma. By about that time Mr Burgess had been treated, by various doctors, for his sun-damaged skin for over 15 years. [37] Dr Louie gave evidence, referring to his usual practice of speaking to patients, that having seen Mr Burgess several times in early 2007 he would have explained: “… that … he has got a skin cancer, but not a serious one, being a basal cell cancer. The appropriate treatment, at this stage, because it was a large one, would be excision. I usually explain to them that it is related to sun exposure over the years and that he is likely to get more.” [38] In cross-examination, again speaking of his usual practice, he said that when speaking to patients like Mr Burgess: “He would have been told it was sun damage … I don’t ever use words like solar induced to patients. Most of them don’t know what it means. … He knew he had a sun cancer … He would have been told that the sun damage could have happened years ago.” [39] The Commissioner found as follows: “[55] Dr O'Connor in the period February to April 2007 identified and treated or referred Mr Burgess for treatment for several separate lesions on various parts of the body including malignant BCCs and SCCs. Even accepting that Dr O'Connor did not have a clear recollection of his consultations with Mr Burgess, I do not consider that his diagnoses of each of the malignant lesions were made in a vacuum – indeed Dr O'Connor said that he knew that the lesions were brought on by sun exposure; that he told Mr Burgess that he had sun cancer and recommended regular skin checks to ensure no new skin cancers had developed. When this is considered in totality, I think it is reasonably open to infer that Dr O'Connor formed the opinion that prolonged sun exposure predisposed Mr Burgess to -- 10 of 12 -- 11 malignant skin lesions which developed due to his underlying pathology.” [40] The Commissioner regarded that as the diagnosis for the purposes of s 36A. [41] The appellants argued that the Commissioner had erred in her reasoning by not adhering to a description of the underlying disease process which the Commissioner had used: “[31] Section 36A uses the term "latent onset injury" that is defined as an insidious disease. In light of the definition incorporating the term "disease", the evidence of Dr Wagner and my earlier findings, the nature of the latent onset injury is the underlying pathology that predisposes the skin to developing solar related skin malignancies in the future rather than the separate lesions that may appear from time to time as manifestations of the disease. I should note that this view has been reached with respect to a latent onset injury under s. 36A(1)(a) and it accords with the decision of Lee IM regarding s. 32(3)(a). It is also the one accepted by all parties to this appeal. In this particular case I find that Mr Burgess has a latent onset injury because his past years of sun exposure have caused the underlying pathology in his skin to become predisposed to the development of multiple malignant skin lesions.” [42] It was argued that this description had not been applied and, thus, there was a failure because it was necessary for a doctor to form the opinion that Mr Burgess had developed the “…the unequivocal predisposition to future manifestations by way of future lesions due to irreparable cells …”. This argument, though, ignores the evidence of Dr Muir and the agreement of the parties that “solar induced skin disease that is malignant is an insidious disease and is thus a latent onset injury for the purposes of s.36A”. [43] The Commissioner referred to the opinion given by Dr Muir who had reviewed the medical records and other documentation provided. He said it was “fanciful” to conclude that Dr Wagner was the first doctor to diagnose solar induced skin disease. Dr Muir went on to say: “it just beggars imagination that those doctors didn't make (a) the diagnosis of skin malignancy and (b) know that the skin malignancies were related to sun induction”. [44] The Commissioner accepted that at no time had Dr Louie or Dr O'Connor made a specific diagnosis that Mr Burgess had a “latent onset injury” or an “insidious disease”. But, that is not required by s 36A. If the disease which is diagnosed is an insidious disease, then that will be sufficient to satisfy the section. [45] The following appears in the written report provided by Dr Muir: “I think all these treating doctors would have been well aware that the lesions that they were treating were solar related skin malignancies. Queensland has the highest rate of sun induced skin malignancy in the world. Any doctor working here, especially doctors performing cutaneous surgery are well aware of the major role sun exposure plays in the aetiology of solar related skin malignancies. Thus I think it improbable that Mr Burgess was not -- 11 of 12 -- 12 diagnosed as suffering from solar induced skin disease that is malignant. …” [46] The appellants must demonstrate that the Commissioner was wrong in arriving at her conclusion on this point. She drew an inference which was open to be drawn and to displace that is not an easy task. As the High Court affirmed in Zuvela v Cosmarnan Concrete Pty Ltd:12 “… the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge's decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong.” [47] The conclusions drawn by the Commissioner were open to her. There was evidence which was not inherently improbable which supported her findings. The appellants have not shown that the Commissioner was wrong. [48] It is also important to note that Mr Burgess elected not to give evidence. No explanation for that was given. That allows for an adverse inference to be drawn, at least to the effect that he could not give any evidence that would have assisted him with respect to what he was told by the treating doctors in 2007. Orders [49] The appellants have not demonstrated any error. Each appeal is dismissed. [50] I do not regard the appeals as having been instituted vexatiously or without reasonable cause and so, pursuant to s 563 of the Act, there should be no order as to costs. 12 (1996) 71 ALJR 29 at 31. -- 12 of 12 --