Chapman v Medical Assessment Tribunal – Thoracic & Anor [2007] QSC 89

SUPREME COURT OF QUEENSLAND CITATION: Chapman v Medical Assessment Tribunal – Thoracic & Anor [2007] QSC 089 PARTIES: ELIZABETH JANE CHAPMAN (Applicant) v GENERAL MEDICAL ASSESSMENT TRIBUNAL – THORACIC (First Respondent) AND XTRACARE (Second Respondent) FILE NO/S: BS416/07 DIVISION: Trial Division PROCEEDING: Application for a statutory order of review ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 30 April 2007 DELIVERED AT: Brisbane HEARING DATE: 12 April 2007 JUDGE: Moynihan J ORDER: 1. Application for statutory order of review is dismissed. 2. No order as to costs. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEW OF PARTICULAR DECISIONS – application for a statutory order of review where medical assessment tribunal determined applicant had not sustained an injury as statutorily defined – whether no reasonable person in the position of the tribunal could have reached the tribunal’s determination Workers Compensation Act 1916 (Qld) s 9(1), s 14C Workers Compensation and Rehabilitation Act 2003 (Qld) s 603 COUNSEL: D Rangiah for the applicant. DO North SC with SA McLeod for the first respondent. G Diehm for the second respondent. SOLICITORS: Turner Freeman for the applicant. Q-Comp for the first respondent. -- 1 of 4 -- 2 Ebsworth & Ebsworth for the second respondent. [1] This is an application for a statutory order of review of a decision of the General Medical Assessment Tribunal – Thoracic (the tribunal) and a consequential decision by the second respondent (Xtracare). [2] The applicant is the widow of Robert Chapman (the deceased) who died on 26 April 2006. Xtracare was the deceased’s insurer for the purposes of the workers compensation legislation. [3] On 12 April 2006 the tribunal, acting on a referral by Xtracare pursuant to s 14C(6) of the Workers’ Compensation Act 1916 (Qld) (the 1916 Act), determined that the deceased had not suffered a permanent partial disability as a result of an injury admitted by Xtracare to constitute an injury in terms of the Act. [4] On 21 December 2006 Xtracare decided, pursuant to s 9(1) of the 1916 Act that the deceased did not suffer any permanent partial disability as a result of compensatable injury or incapacity occasioned by such an injury and so it was not obliged to compensate the deceased. The applicant then brought this application for review. [5] In the proceedings before me the tribunal, appearing by counsel, did not take an adversarial role but limited its submissions to the proper construction of the legislation and the manner in which the tribunal exercised its power in accordance with the reference. [6] Each of the tribunal and Xtracare indicated that in the event that the application was unsuccessful they would not be seeking costs. [7] The proceedings arise in the following circumstances. On 10 May 2005 the deceased made an application for workers compensation as a consequence of an injury of ‘incurable lung disease’ while employed by Mt Isa Mines and lodged it with Xtracare. [8] By letter of 14 December 2005 Xtracare notified the deceased that his claim had been accepted and that a medical assessment tribunal would determine his entitlement to lump sum compensation and so the matter was referred to the tribunal. [9] The reference was: Whether any incapacity for work occasioned by the injury is total or partial and whether such incapacity is permanent or temporary and, where the worker has suffered any permanent partial disability as a result of the injury, the nature and extent of that disability. [10] The purpose of the referral was for damages for permanent impairment. Under the heading ‘List all diagnosis for accepted liability on the referral form’ the diagnosis was ‘asbestosis’. As the tribunal acknowledged by its reasons the nature of the injury admitted for the purposes of the reference was ‘asbestosis’. [11] On 12 April 2006 the tribunal concluded that there was no incapacity occasioned by the injury and that the worker had not suffered a permanent partial disability as a result of the injury and published its reasons. -- 2 of 4 -- 3 [12] The tribunal noted that the referral was with respect to asbestosis and that Xtracare the insurer had accepted ‘asbestosis’ for medical expenses and that two respiratory physicians had supported the claim. [13] The tribunal however determined that it was ‘highly likely’ that the intensity of the deceased’s exposure to asbestosis fibre dust was very low and consequently his cumulative exposure was also very low. [14] It concluded that the deceased had interstitial lung disease and emphysema. The latter was ‘presumably’ due to his past cigarette smoking and the interstitial lung disease was due to idiopathic pulmonary fibrosis for cryptogenic fibrosing alveolitis. [15] After dealing with the foundations for its conclusions the tribunal stated that the deceased’s current permanent partial disability was not related to the condition for which his claim for compensation was accepted, that there was no incapacity occasioned by the injury and that the deceased had not suffered a permanent partial disability as a result of it. [16] It should be noted that the tribunal had informed the deceased on 14 March 2006 that it did not agree with the diagnosis of asbestosis but considered it was from other causes and advised that it had deferred its decision so that he could make further submissions or provide additional information. After this was done the tribunal adhered to its provisional view and decided as I have stated. [17] Section 603 of the Workers Compensation and Rehabilitation Act 2003 (Qld) (the 2003 Act) provides to the effect that if a worker sustained an injury before the commencement of the section the Act in force when the injury was sustained applied. It was not in issue that the relevant legislation in this case was s 14C of the 1916 Act which was repealed in 1990. [18] The reference to the tribunal was pursuant to s 14C(4) which provided that the general manager may refer to the appropriate medical board any claim for compensation under the Act in respect of any alleged injury. [19] Section 14C(6) then provides: Upon a reference under subsection (4) of this section, the Board concerned shall determine whether or not the matters alleged by the claimant constitute an injury under and within the meaning of this Act and, if so, the nature thereof and whether any incapacity for work occasioned by the injury is total or partial in the employment in which the claimant alleges he was engaged at the time of the injury, and whether such incapacity is permanent or temporary. Where the General Manager has admitted that the matters alleged by the claimant constitute an injury under and within the meaning of this Act and the nature thereof the Board concerned shall determine whether any incapacity for work occasioned by the injury is total or partial whether such incapacity is permanent or temporary and, where the worker has suffered any permanent partial disability as a result of the injury, the nature and extent of that disability. The reference in this case was under the second limb. -- 3 of 4 -- 4 [20] It may be accepted that the tribunal’s jurisdiction was determined by the terms of the reference and by s 14C(6). It was submitted for the applicant however that by deciding the deceased did not suffer from asbestosis the tribunal purported but was not authorised by the statute to set aside Xtracare’s admission in terms of subsection (6) that the matters alleged constituted an injury and ‘the nature thereof’ and that s 14C(6) did not permit it to do so. [21] In my view the tribunal’s determination was in accordance with the reference and s 14C(6). It determined that any disability suffered by the deceased was caused by the conditions referred to in its reasons and not by asbestosis and so was not work related. [22] The tribunal was asked to decide the extent to which any incapacity the deceased suffered was as a result of asbestosis (“the injury”) contracted as a consequence of his employment. It decided that his condition and consequent disability was caused by something else which was unrelated to his work ie the plaintiff’s disability was not a consequence of asbestos. [23] These conclusions are consistent with the reference and within the power conferred on the tribunal. In my view the application for a statutory order of review of the tribunal’s decision and the consequent decision by Xtracare should be dismissed. I make no order as to costs. -- 4 of 4 --