Bartosek v Workers' Compensation Regulator [2022] QIRC 192

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bartosek v Workers' Compensation Regulator [2022] QIRC 192 PARTIES: Bartosek, Karl Andrew (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO.: WC/2021/35 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: 3 June 2022 HEARING DATE: 25 January 2022 MEMBER: HEARD AT: Power IC Brisbane ORDERS: 1. The appeal is allowed. 2. That the decision of the Workers' Compensation Regulator dated 25 February 2021 be set aside. 3. That the Appellant be paid benefits as a worker with a terminal condition pursuant to Chapter 3, Part 3, Division 4 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). 4. Failing agreement on costs, to be the subject of a further application to the Commission. 5. Liberty to apply. CATCHWORDS: WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – -- 1 of 12 -- 2 entitlements of worker with terminal condition – meaning of diagnosis – date of diagnosis of latent onset injury – whether appellant was diagnosed with a terminal condition before or after 31 January 2015 for the purposes of s 732 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – appellant entitled to compensation LEGISLATION: Personal Injuries Proceedings Act 2002 (Qld) Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 36A, 39A, 119, 128A, 128B and 732 CASES: Armstrong v Local Government Workcare [2014] ICQ 007 Blanch v Workers' Compensation Regulator [2021] QIRC 408 Plant v Workers' Compensation Regulator [2022] QIRC 169 Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301 APPEARANCES: Mr G.W. Diehm QC of Counsel and Ms K.J. Kluss of Counsel instructed by VBR Lawyers for the Appellant. Mr S.A. McLeod QC of Counsel directly instructed by the Respondent. Reasons for Decision Introduction [1] Mr Karl Andrew Bartosek ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to confirm an earlier decision of WorkCover Queensland ('the Insurer') to reject the Appellant's request for a latent onset terminal condition lump sum compensation in accordance with the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act'). [2] On 7 September 2020, the Appellant applied for terminal benefits pursuant to s 128B of the WCR Act. This request was rejected by the Insurer on the basis that s 119 of the WCR Act operated to end the Appellant's entitlement to compensation. Following an application for review, the Respondent confirmed the decision to reject the application. -- 2 of 12 -- 3 The Appellant subsequently filed a notice of appeal to the Queensland Industrial Relations Commission ('the Commission') appealing the decision of the Respondent. Background [3] The parties are in general agreement on the factual background to this matter. Between about 2002 and about 2015, the Appellant worked as a stonemason and was exposed to respirable crystalline silica dust in the course of his employment with Cascade Marble and Granite Pty Ltd from about 2002 to 2007. [4] The Appellant underwent a CT scan of his chest on 3 December 2014 and on 8 January 2015 the Appellant attended upon Dr David Deller, a treating respiratory and sleep physician. [5] On 20 April 2016, the Appellant lodged a notice of claim for damages with the Insurer for silicosis and rheumatoid arthritis. [6] Dr Deller provided a further progress report in relation to the Appellant's condition on 17 June 2016. [7] On 22 March 2017, Professor Roger Allen, thoracic and sleep disorders physician provided a report following an assessment of the Appellant. [8] Dr Deller provided further progress reports following assessments of the Appellant on 22 March 2018 and 24 April 2018. [9] On 3 July 2018, the Appellant's common law claim against his employers and the manufacturers of engineered stone products proceeded to and resolved at a compulsory conference. [10] On 1 November 2018, Dr Deller provided a further progress report in which he diagnosed the Appellant with 'Chronic Silicosis'. [11] On 25 August 2020, Dr Deller provided a further report in which he opined that, on the balance of probabilities, the Appellant was more likely than not to succumb to progressive silicosis than an alternative disease. [12] The Appellant subsequently applied to the Insurer for a latent onset lump sum payment on 7 September 2020. Nature of Appeal [13] The appeal to the Commission is conducted by way of a hearing de novo in which the Appellant bears the onus of proof.1 The questions to be answered in the determination of the appeal are: (a) For the purposes of s 732 of the WCR Act, was the Appellant diagnosed with silicosis on or after 31 January 2015? and 1 Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301. -- 3 of 12 -- 4 (b) Does the Appellant have a terminal condition pursuant to s 39A of the WCR Act? Consideration [14] It is firstly noted that the Respondent does not maintain the position that s 119 does not apply to ch 3 pt 3 div 4 of the WCR Act and does not operate to preclude the Appellant from receiving terminal latent onset lump sum compensation.2 The primary basis upon which the appeal was opposed as outlined in the Respondent's Statement of Facts and Contentions was the purported operation of s 119. The extent of the application of s 119 was also the reason the Respondent's review decision confirmed the Insurer's decision to deny the application. At the hearing, the Respondent confirmed that they did not rely upon s 119 to oppose the appeal and instead opposed the appeal on the basis that the Appellant had been diagnosed prior to 31 January 2015 and hence was not entitled to the payment.3 [15] On the basis that the Respondent does not maintain the position that s 119 precludes latent onset injury terminal condition payments under s 128B, it is not necessary to consider the Appellant's alternative position that the Appellant's terminal diagnosis is a 'new entitlement' such that s 119 is not engaged. [16] The central issue in this matter is whether the Appellant was diagnosed with silicosis before or after 31 January 2015. If the diagnosis was made before 31 January 2015, the Appellant would not satisfy the earlier version of s 39A and consequently would not be entitled to the benefits sought in this appeal. [17] Section 732 of the WCR Act provides that the amended definition of 'terminal condition' is to apply to a terminal condition only if the latent onset injury to which the condition relates was sustained by a worker on or after 31 January 2015: 732 Requirement for certification of terminal condition (1) New section 39A applies in relation to a terminal condition only if the latent onset injury to which the condition relates was sustained by a worker on or after 31 January 2015. (2) Former section 39A continues to apply in relation to a terminal condition if the latent onset injury to which the condition relates was sustained by a worker before 31 January 2015. [18] It is common ground that the latent onset injury in this matter is the Appellant's condition of silicosis. Where the parties disagree is whether the Appellant had received a diagnosis of his latent onset injury for the purposes of s 732 prior to 31 January 2015. [19] On 3 December 2014, the Appellant underwent a CT scan at the request of Dr Jennifer Ng and Dr David Mitchell provided the report. In the report, Dr Mitchell states the following: Findings 2 T 1-13, ll 42-45. 3 T 1-5, ll 10-18. -- 4 of 12 -- 5 In the post contrast series there is mediastinal and hilar lymphadenopathy. There are multiple small but rounded pretracheal, precarinal, subcarinal, aortopulmonary and hilar lymph nodes up to 13mm short axis dimension. The lungs appear normal, in particular, there is no pulmonary infiltrate or nodularity. No pericardial or pleural fluid. The upper abdomen as demonstrated appears normal. Comment Bilateral hilar and mediastinal lymph node enlargement. The differential diagnosis includes sarcoidosis, silicosis and unlikely possibilities of infective conditions and lymphoma. The lymphadenopathy of silicosis may precede pulmonary manifestations and this would seen [sic] to fit with the patient's occupational history of stonemason. The possibility of coincidental sarcoidosis in which the lymphadenopathy may also precede the pulmonary changes also however requires consideration.4 [20] The Appellant submits that Dr Mitchell's use of the word 'includes' indicates that the list is not the only differential diagnoses that may be made, but rather possibilities that are explicitly mentioned based upon the CT scan. [21] The Appellant submits that a differential diagnosis in the context in which it was made in this matter is not a diagnosis. The Appellant's Counsel submitted: In short, a differential diagnosis, particularly in the context in which it was made here, is merely a statement that, "This is one thing amongst several that this condition could be, that this injury is" and that the person making the diagnosis or making the differential diagnosis is not reaching any conclusion at all that that is what the condition is. Just that it might be. And that sort of hypothesising, no doubt, goes on in medicine all the time and it would be problematic if it were to have the result that it was to be treated as if the doctor had made the diagnosis at that point in time.5 [22] On 8 December 2014, Dr Ng referred the Appellant to Dr Deller and provided the diagnostic results from the CT scan. Dr Ng does not make a diagnosis of silicosis in the referral document.6 [23] Dr Deller provided a report back to Dr Ng on 8 January 2015. Dr Deller states the following in the first line of his report: I had the pleasure of seeing Karl in the respiratory clinic today for assessment of hilar and mediastinal lymphadenopathy.7 [emphasis added] [24] Dr Deller's report further states: I had the opportunity to review the CT scan of his chest from the 3 rd December 2014 with Qscan radiology. This demonstrates moderate mediastinal and hilar lymphadenopathy in a symmetrical distribution. There is no evidence of calcification in these nodes and no evidence of pulmonary change. 4 Exhibit 1, page 42. 5 T 1-9, ll 36-43. 6 Exhibit 1, page 43. 7 Ibid page 44. -- 5 of 12 -- 6 The differential at this stage includes autoimmune mediated mediastinal and hilar lymphadenopathy, sarcoidosis or early silicosis given his occupational exposure.8 [emphasis added] [25] The Appellant reasonably submits that perhaps the word 'diagnosis' may have been included alongside 'differential', noting that in the jargon of medical practitioners it was undoubtedly well understood. [26] Dr Deller concludes his report with the following statements: At this stage however I do not feel compelled to seek biopsy confirmation of this given that specific therapy is not necessary at this stage. I am confident that we are not missing more sinister disease such as lymphoma on the basis that he at present does not have any symptoms to suggest this. I have suggested a CT scan of his chest again in six months' time. If he does have mediastinal and hilar lymphadenopathy associated with his rheumatoid arthritis, this may improve as his disease activity improves overall. I have strongly recommended that personal protective equipment at work to reduce the burden of dust inhalation moving forward. He has stated regardless that even [sic] he was diagnosed with occupational lung disease he would not at this stage retire from this type of employment as he is the owner of his business which is going along quite successfully at the present time. If his mediastinal and hilar lymphadenopathy is being caused by underlying concomitant sarcoidosis then treatment would not be indicated at this point in time anyway.9 [emphasis added] [27] The Appellant submits that Dr Deller's comments do not state that the Appellant has not been diagnosed with occupational lung disease, rather, it is only a differential diagnosis. [28] The term 'diagnosis' is not defined under the WCR Act. The Oxford Dictionary defines diagnosis in this context as 'the identification of a disease by means of a patient's symptoms'.10 Neither the CT report of December 2014 nor the report of Dr Deller on 8 January 2015 identify a disease by means of the Appellant's symptoms, rather, the reports outline a range of possible diseases. [29] A file note of an attendance upon Dr Deller by the Appellant's legal representatives was confirmed by Dr Deller as being an accurate account of the discussion on 21 January 2022. The file note states: With reference to his report of 8 January 2015, Dr Deller advised that he had had [sic] observed some irregularities on the CT scan of 3 December 2014, namely enlarged lymph nodes, which did not indicate a specific diagnosis. He said that large lymph nodes were very common in his practise and could be caused by a number of different conditions. Dr Deller stated that he had not made any diagnosis in respect of Mr Bartosek's lung condition at the time of his report of 8 January 2015. He advised that his differential diagnoses of autoimmune mediated mediastinal and hilar lymphadenopathy, sarcoidosis, and occupational silica exposure were posited as possible causes of Mr Bartosek's enlarged lymph nodes. 8 Ibid page 45. 9 Ibid page 45. 10 See also discussion of dictionary definitions of 'diagnosis' in Armstrong v Local Government Workcare [2014] ICQ 007 at [31]. -- 6 of 12 -- 7 Dr Deller stated that because there was no indication of malignancy from the CT scan, he had not considered it necessary to obtain a biopsy at that time. Instead, he considered it reasonable to monitor Mr Bartosek's condition by way of six-monthly reviews to ascertain whether there were further changes in subsequent CT skins that might assist in confirming the cause of Mr Bartosek's enlarged lymph nodes and therefore lead to a diagnosis. Dr Deller stated that, with reference to his progress reports, he first suspected Mr Bartosek's enlarged lymph nodes and pulmonary nodules were caused by occupational silica exposure in early 2018. He confirmed that, as noted in his report of 24 April 2018, he participated in an Interstitial Lung Disease Multidisciplinary Meeting on 23 April 2018 during which Mr Bartosek's case was discussed with multiple radiologists, respiratory physicians and a pathologist but no clear consensus was reached as to the most likely cause of the nodules seen in the scans. Dr Deller stated he did not confirm the diagnosis of silicosis until late 2018, around the time of his report of 1 November 2018.11 [emphasis added] [30] I place significant weight upon the evidence of Dr Deller on the basis that his evidence was not challenged and he was not required for cross-examination. I also note that the file note of Dr Deller's recollection is consistent with the report of the same date upon which he consulted with the Appellant. [31] The Respondent submits that the file note does not include reference to a discussion had between Dr Deller and the Appellant or any advice provided by Dr Deller to the Appellant. The Respondent submits that the file note references Dr Deller's report of 8 January 2015 and not the discussion between Dr Deller and the Appellant on that date. [32] The Respondent refers to the Appellant's affidavit that was sworn on 18 April 2016 in support of his application pursuant to his claim under the Personal Injuries Proceedings Act 2002 (Qld). In [3] of the affidavit, the Appellant deposes: I wish to claim damages for personal injury arising from my diagnosis with rheumatoid arthritis in November 2014, and silicosis in January 2015.12 [emphasis added] [33] The Appellant further deposes the following: On 8 January 2015, during my consultation with Dr Deller, I was advised that I had slow-moving silicosis. At this meeting, Dr Deller advised me that my silicosis was due to my constant inhalation of dust within my workplace. He recommended that I should stay out of work place dust although he acknowledged that this would be difficult for me to do due to my line of work.13 [emphasis added] [34] The Respondent notes the third paragraph of the file note does not address the content that the Appellant specifically deposes to in his affidavit regarding Dr Deller's discussions with him on 8 January 2015. The Appellant was not called to give evidence to explain the content of his affidavit. 11 Exhibit 1, page 82. 12 Ibid page 83. 13 Ibid pages 104-105. -- 7 of 12 -- 8 [35] The Respondent also refers to the Appellant's statement in his affidavit that asserts that he was diagnosed with silicosis by Dr Deller on 8 January 2015: At the time of my silicosis diagnosis KNS was on Christmas break and over the next month the business slowly started back up for the year ahead.14 [36] The Respondent refers to the Appellant's notice of claim for damages in which a reference is made to Dr Ng's advice: …Dr Ng informed the worker at this point that breathing in stone dust which had caused his diagnosis of silicosis, confirmed on 8 January 2015, had in her personal opinion been the traumatic event that had brought on the rheumatoid arthritis.15 [37] The notice of claim for damages also states the following: During a consultation with Dr David Deller on 8 January 2015 a diagnosis of silicosis was confirmed to the worker.16 [38] The Respondent notes that the affidavit was sworn on oath and the notice of claim for damages specifically requires the Appellant to make a declaration of the truth of the contents. [39] The Respondent submits that the evidentiary worth of the file note is meaningless because it does not address the statement made in the Appellant's affidavit that he was advised that he had silicosis during the consultation on 8 January 2015. [40] The Appellant's Counsel submits that whilst it may have been the Appellant's understanding that he had been diagnosed with silicosis following his consultation with Dr Deller on 8 January 2015, this was an incorrect understanding or a mistake. In the Appellant's affidavit, he refers to a conversation between his solicitor and Dr Deller on 27 January 2016 about the consultation with the Appellant on 8 January 2015. A memorandum detailing the phone conversation was annexed to the affidavit along with an email from Dr Deller attesting to the accuracy of the summary of the conversation. The memorandum includes the following summary: I noted, with reference to Karl's file, that Dr Deller had seen him on 8 January 2015 for investigation of hilar and mediastinal lymphadenopathy; I asked Dr Deller if at that consultation he ever stated to Karl that his auto immune condition of Rheumatoid Arthritis was connected with his occupational dust exposure. Dr Deller confirmed that he wasn't aware that Rheumatoid Arthritis was linked to dust exposure, he confirmed that Rheumatoid Arthritis can be linked with his mediastinal and hilar lymphadenopathy and that the main reason he saw Karl was because he had enlarged lymph nodes in the mid chest and all things like Rheumatoid Arthritis, Sarcoidosis or dust exposure can cause nodes to enlarge in your chest, Rheumatoid Arthritis can be a cause of enlarged nodes which was the focus of Dr Deller's investigation of Karl. Knowing that Karl worked in a dusty stonemason environment he agave Karl general advice to the effect; don't get exposed to so much dust moving forward, Dr Deller informed this is probably the advice you would give to anyone who works in a dusty stonemason environment. 14 Ibid page 105. 15 Ibid page 548. 16 Ibid page 549. -- 8 of 12 -- 9 In Karl's consultation with Karl [sic] in January 2015 he made a statement that Rheumatoid Arthritis, Sarcoidosis, dust exposure can increase the size of your lymph nodes in causing them to calcify because Silicosis is a reference to interstitial lung disease which develops in the later stages of dust exposure.17 [41] The details contained in the summary above of Dr Deller's consultation with the Appellant reflect a conversation about dust exposure and several different diseases. It would be unreasonable to draw an inference from that evidence that Dr Deller communicated to the Appellant that he had been diagnosed with silicosis. I accept that it is plausible that the Appellant thought he had been diagnosed with silicosis, but the evidence indicates that Dr Deller mentioned the term 'silicosis' only as one of a number of possibilities. [42] Section 36A(4) of the WCR Act provides that the WCR Act applies in relation to the person's claim as if the date on which the latent onset injury was sustained is the date of the doctor's diagnosis. In Armstrong v Local Government Workcare ('Armstrong'),18 President Martin (as he then was) considered the meaning of diagnosis: 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 that 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. 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” it must be a diagnosis which is given to the prospective applicant.19 [43] The Respondent submits that the requirements as outlined in Armstrong were satisfied in this matter as a diagnosis of silicosis was made by Dr Deller and communicated to the Appellant during the course of the consultation on 8 January 2015. [44] The Appellant submits that President Martin's description of a diagnosis in Armstrong should be adopted in that it is an 'act or cerebration by a doctor – the formation of an opinion and nothing more' and this opinion must then be communicated. [45] In Armstrong, the Court considered circumstances in which the doctor has formed an opinion but not communicated their opinion to the patient. That is not the circumstances of this matter. The clear requirement is that the doctor must first form the opinion, and the evidence of Dr Deller is that this did not occur in this matter. [46] I am not satisfied that the 'act of cerebration by a doctor' as described in Armstrong had occurred prior to 22 March 2017 when Professor Allen stated that the Appellant was suffering from silicosis. Dr Deller's report of 8 January 2015 and his subsequent reports up until November 2018 contained a number of hypotheses described as differential 17 Ibid page 337. 18 [2014] ICQ 007. 19 Ibid at [26]-[27]. -- 9 of 12 -- 10 diagnoses. It would be an absurd outcome to determine that the Appellant was suffering from all conditions listed as 'differential diagnoses'. A list of possible conditions is not a diagnosis. [47] The reports provided by Dr Deller following assessments of the Appellant on 22 March 2018 and 24 April 2018 indicate that no diagnosis had been made on 8 January 2015. The progress report of 22 March 2018 states: His CT scan is somewhat interesting. There are persisting and prominent mediastinal lymphadenopathy which has not changed over time. There are however progressive nodular changes in the mid and upper zone biapically. None of these nodules are calcified. The nodules were not seen on CT 2 years ago. He does have ongoing silica exposure however he is now very cautious using a respirator and wet cutting all stone. The CT changes could be consistent with simple silicosis.20 [48] A further progress report was provided by Dr Deller on 24 April 2018 following a review of the Appellant's condition at an Interstitial Lung Disease Multidisciplinary Meeting on 23 April 2018. The report stated: His case is particularly difficult given that he has a history of seropositive rheumatoid arthritis, there has been a question over the possibility of sarcoidosis and of course the fact that he is a stone mason with a history of heavy silica inhalation particularly with the use of newer composite stones which have very high silica counts. The case was discussed with multiple radiologists, respiratory physicians and pathologist in attendance. No clear consensus was reached as to the most likely cause for his nodules.21 [49] The first report in which Dr Deller confirms that the Appellant has been diagnosed with silicosis is dated 1 November 2018.22 [50] The subsequent progress reports support an inference that no diagnosis had been made on 8 January 2015 and that Dr Deller first formed his opinion that the Appellant had silicosis on 1 November 2018. [51] I note the Respondent's submission that Dr Deller's file note of 21 January 2022 did not address whether he told the Appellant that he had diagnosed him with silicosis. Having considered all of the evidence, I am of the view that it is unlikely that Dr Deller communicated to the Appellant that the cause of his symptoms was silicosis, and then proceeded to write in his report that silicosis was simply one of several possibilities. I accept that, in circumstances in which the evidence indicates that Dr Deller did not hold the opinion that the Appellant had silicosis, it is highly unlikely that he would have told the Appellant that he did, in fact, have that disease. [52] On the basis of his contemporaneous report of 8 January 2015 and contents of the file note of 21 January 2022, it is clear that Dr Deller made a number of differential 20 Exhibit 1, page 72. 21 Ibid page 74. 22 Ibid page 76. -- 10 of 12 -- 11 diagnoses of possible causes of the Appellants symptoms prior to 31 January 2015. Providing an opinion of a number of possible conditions cannot be taken to be a diagnosis of that injury for the purposes of the WCR Act. Whilst the Appellant may have believed that he had been diagnosed with silicosis rather than the other conditions at this time, this belief is not a diagnosis. I am satisfied that there was no diagnosis of silicosis communicated by Dr Deller to the Appellant during his consultation on 8 January 2015 or his report of the same day or in the CT report of 3 December 2014. [53] The first diagnosis of silicosis occurred in 2017, with Professor Allen providing a report dated 22 March 201723 in which he states the following: 26.1 In my opinion your client is suffering from the following conditions: 1. Silicosis (mild) 2. Rheumatoid arthritis.24 [54] This diagnosis of silicosis by Professor Allen was confirmed in a later report by Dr Deller in 2018.25 The date of injury is therefore taken to be 22 March 2017 in accordance with s 36A of the WCR Act. Terminal condition [55] The meaning of 'terminal condition' is outlined in s 39A of the WCR Act: 39A Meaning of terminal condition (1) A terminal condition, of a worker, is a condition certified by a doctor as being a condition that is expected to terminate the worker's life. (2) A condition is a terminal condition only if the insurer accepts the doctor's diagnosis of the terminal nature of the condition. [56] Section 128A provides that ch 3 pt 3 div 4 of the WCR Act applies to a worker if a latent onset injury sustained by the worker is a terminal condition. Section 128B provides for the entitlements payable. [57] The report of 25 August 2020 by Dr Deller outlines his view that the Appellant's condition of silicosis was a latent onset injury that was terminal based on the fact that the condition will reduce the Appellant's life expectancy. [58] Dr Deller's report of 25 August 2020 stated the following: When considering Mr Bartosek's age, exposure history and progressive radiologic findings over 4-5 years, I believe that, on the balance of probabilities, Mr Bartosek is more likely than not to succumb to progressive silicosis than an alternative disease and that the silicosis will reduce his 23 Ibid page 55. 24 Ibid page 53. 25 Ibid page 76. -- 11 of 12 -- 12 life expectancy. I therefore consider that Mr Bartosek has, with reference to the provided definition, a terminal condition.26 [59] On the basis that Dr Deller has made the diagnosis that the Appellant is more likely than not to succumb to silicosis, I accept that the medical evidence supports the conclusion that the Appellant suffers from a condition that is expected to terminate his life. The requirement of s 39A(1) is therefore satisfied. [60] Section 39A(2) provides that a condition is a terminal condition only if the insurer accepts the doctor's diagnosis of the terminal nature of the condition. [61] The Insurer did not challenge Dr Deller's diagnosis in the decision to reject the Appellant's claim and the Respondent did not challenge Dr Deller's diagnosis in their review decision or in this appeal. No medical evidence challenging the terminal nature of the diagnosis was provided.27 In these circumstances, it can reasonably be inferred that the Insurer accepts Dr Deller's diagnosis of the terminal nature of the condition and consequently, s 39A(2) is satisfied. Conclusion [62] I am satisfied that the evidence supports a conclusion that the Appellant's latent onset injury is a terminal condition that was first diagnosed on 22 March 2017 for the purposes of ss 732 and 39A of the WCR Act. Order [63] I make the following orders: 1. The appeal is allowed. 2. That the decision of the Workers' Compensation Regulator dated 25 February 2021 be set aside. 3. That the Appellant be paid benefits as a worker with a terminal condition pursuant to Chapter 3, Part 3, Division 4 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). 4. Failing agreement on costs, to be the subject of a further application to the Commission. 5. Liberty to apply. 26 Ibid page 79. 27 See discussion on s 39A(2) in Blanch v Workers' Compensation Regulator [2021] QIRC 408 and Plant v Workers' Compensation Regulator [2022] QIRC 169. -- 12 of 12 --