Clarke v Q-COMP [2009] ICQ 18 (2009) 192 QGIG

[Extract from Queensland Government Industrial Gazette, dated 18 September, 2009, Vol. 192, No. 3, pages 37-38] INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial commission Troy John Clarke AND Q-COMP (C/2008/4) (No. 2) PRESIDENT HALL 8 September 2009 DECISION This is an Appeal pursuant to s. 561(1) of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Queensland Industrial Relations Commission given on 24 December 2007 (now reported at 187 QGIG 9). The hearing of the Appeal has been delayed to enable the Appellant to seek legal assistance and/or achieve a sufficient state of fitness and emotional composure to argue the Appeal himself. In the event, the Appellant did argue his case. I accept that the Appellant, who tells me that he did not do well at school, has a genuine and not feigned difficulty in understanding the Act and the judicial process. However, I also have to accept that the Appeal is misconceived. The Commission declined to act upon the evidence of Dr Murrell on the ground that Dr Murrell had become too close to the Appellant, who was her patient and had become his advocate. There are not incontrovertible facts to demonstrate that the Commission’s finding was erroneous: neither is there uncontested testimony pointing decisively to error. On the face of the transcript, the finding is neither contrary to compelling inference nor glaringly improbable. This Court is not entitled to set the finding aside. Absent the evidence of Dr Murrell, the only case available to the Appellant to satisfy the definition of "injury" at s. 32(1) of the Act, is that the likelihood of his condition (pemphigus vulgaris) being caused by his work environment (operating on a genetic predisposition) is so high that one may properly infer that the condition did arise out of his work environment and that his work environment was a significant contributing factor to the contraction of the disease. Such a case cannot be sustained on the evidence. The Commission reproduced comments by Dr Animesh Sinha in an email to the Appellant’s then solicitors. In its original format (see Exhibit 11B) the email was in the following terms: "i attempted to orient my report to showcase the role of environmental factors in pemphigus in as positive a manner as the medical and scientific literature allows. but let me be clear. while the role of environmental factors in autoimmune diseases in general (and likely pemphigus vulgaris) is accepted, direct links backed by strong, reproducible, non-anecdotal data implicating specific specific [sic] environmental agents is lacking for most diseases, including pemphigus vulgaris. also, please keep in mind that environmental agents in this sense can refer to the broad universe of infectious, stress-related, and chemical/drug related substances/molecules. as such, in my opinion, no expert in the field could conclusively link a specific environmental agent to the development of (this) disease (pemphigus vulgaris), with the possible exception of the drug d-penicillamine. moreover, in this case, i have not seen any evidence that confirms mr clarke was directly exposed to any of the pesticides and other substances reported in the literature outlined in my report, either during the line of, or outside of work. do you have such documentation? even in this case, it would be difficult to conclude that a particular agent was the sole or primary cause of disease that no doubt also requires a genetic predisposition.". Dr Sinha's evidence about possible links between the condition and exposure to pesticides, herbicides and metal vapours are subject to the qualifications in the quoted comments. In any event there was no evidence that the Appellant had been exposed to pesticides, herbicides and metal vapour (or the drug d-penicillamine) in the course of his employment. In consequence, neither was there evidence of the duration of any such exposure, a matter which Dr Sinha considered to be material. The evidence of Dr Reid was entirely adverse to the Appellant. It has been contended on the Appeal that the commission failed to address the timing of the onset of the Appellant's condition (about 3 to 4 months after the commencement of employment). With respect, the Commission recorded Dr Sinha's opinion that: "… exposure to a particular environmental agent usually occurred weeks to months before the disease exhibited itself. However, exposure some 12 months before to a particular environmental factor could not be ruled out. Where there were several potential environmental exposures, where timing of a potential source was at issue, Dr -- 1 of 2 -- 2 Sinha's experience would lead him to go with the more acute exposure as the probably [sic] source, albeit that it may be more distant in time from the occurrence of the disease.", and recorded the evidence of Dr Reid that the disease could appear a long time after first contact with the trigger. In my view, the evidence established that the Appellant's employment was a setting for the development of his condition but did not establish that the employment was a real and effective cause of the condition. I dismiss the Appeal. I reserve all questions as to costs. Dated 8 September 2009. D.R. HALL, President. Released: 8 September 2009 Appearances: The Appellant in person. Mr P. Rashleigh, directly instructed for the Respondent. Government Printer, Queensland The State of Queensland 2009. -- 2 of 2 --