Robinson v Q-Comp [2007] QIC43 4 December 2007

Facts
 
The Claimant was an 82 year old gentleman who had retired from work as a waterside worker on the 16 August 1986 aged 60. The Claimant lodged an Application for Compensation on 11 May 2006 (aged 80) for the treatment of skin cancers. He had a number of skin treatments and on 19 June 2006 his left eye was removed as a result of a basal cell carcinoma (BCC). The Claimant had described his injury as occurring over a period of time where he first experienced symptoms in 1960s. 

 
This matter initially went to WorkCover and was rejected on the basis that it was outside the statutory time period regulated by the Workers Compensation Act 1916. Q Comp considered that as it was pursuant to the 1916 Act it was not a reviewable decision in which Q-Comp could intervene. Accordingly the solicitors acting on behalf of Robinson proceeded to the Industrial Magistrates Court for review where two issues were considered:-
 
(a)               How is basal cell carcinoma to be treated in the terms of onset injury; and
(b)               Had the limitation period ceased?
 
Magistrate Cull determined that the onset of basal cell carcinoma was a distinct and new injury each time it occurred. Both Q-Comp and WorkCover had contended that the Claimant’s skin cancers must have been deemed to have occurred the last day he worked. Magistrate Cull considered that the definition of injury in the Workers Compensation and Rehabilitation Act 2003 noted that suddenness wasn’t necessarily an element of injury and as skin cancers could develop gradually they could be diagnosed when identified. She determined “changes to DNA are imperceptible, and as a pre-cursor or predisposition to developing a malignant condition cannot be described as an injury or disease. Each new cancerous lesion is a new injury. In this case of the BCC of 2006 was an occurrence of the 2004 BCC not a new injury”. 
 
Q-Comp proceeded to appeal this matter to the Industrial Court whereby a number of issues relating not only to the limitation period but also procedural fairness were canvassed by President Hall. Unusually, Magistrate Cull had elected to inform herself in any way she saw fit which included medical records which had been obtained by way of non-party disclosure but had not been canvassed or exhibited by either the Claimant or the Respondent. In effect both Robinson and Q-Comp were denied any opportunity to lead evidence with respect to these particular medical records that Magistrate Cull has used in making a determination on her case. President Hall determined that that in itself was a breach of natural justice however as it was not the only issue that was the grounds of appeal for this particular cases it itself was not fatal. 
 
Issues
 
1.         Which Act Applies?
2.         Procedural Fairness;
3.         Resolving Statutory Claims with the Application of Common Law Concepts.
 
Which Act?
 
The critical issue in determining this matter was which Act applies. Clearly Robinson had finished in employment in the 1980’s and one would assume that the limitation period would have long expired and the relevant workers compensation legislation would be the Workers Compensation Act 1916. However as the medical evidence indicated that the tumor which ultimately was the cause of Mr Robinson loosing his eye was a result of a reoccurrence of a cancer that had been removed in 2004 the relevant Act is the Workers Compensation and Rehabilitation Act 2003. Ultimately President Hall considered that the loss of Robinson’s eye was a stand alone injury. This was determined on the basis of medical evidence which asserted that it was sufficient that the lesion which caused the loss of the eye was a discreet post July 2003 injury and therefore the relevant Act on which to assess the claim was the 2003 legislation. As the 2003 Act was t!
he applicable legislation then Q-Comp did have the power to review the rejection of the claim by WorkCover.
 
Procedural Fairness
 
President Hall determined that as Magistrate Cull relied on material which had been canvassed by neither party that Q-Comp most certainly had been denied natural justice. This in itself was not fatal for the ultimate determination of the claim. 
 
The Application of Common Law concepts in Statutory Claims
 
Both WorkCover and Q-Comp had applied Martindale v Burrows [1997]1QdR243 as the principal in which to deal with this type of injury; that being that as the exposure was causative of skin cancer then it must be within the 1916 Act. President Hall clarified that this case was not a case about workers compensation and he summarised the case that there are dangers in seeking to resolve statutory claims by analogy with the application of common law concepts (page 5). President Hall stated “if one goes to the case about workers compensation - bearing in mind that one is always concerned with the construction of the noun “injury” and the concept of a particular provision in a particular statute then that one may not slavishly follow decisions given upon other language – it appears that where used in its ordinary sense the use of the noun “injury” is understood to refer to a sudden or identify a physiological change including a change internal to the body”. President Hall considered “it seems to me that Q-Comp was altogether too robust in treating Martindale v Burrows as a decision of such weight and direct application at the construction of the DNA and changes of the miraculous structure of Mr Robinson’s cells must be held to be a “injury” or “injury by way of disease” for the purposes of the Workers Compensations Act 1916. In my view the Industrial Magistrate should have remitted the matter to Q-Comp with a direction to embark upon and complete the review. For completeness, I reiterate that it was premature for the Industrial Magistrate to find on the balance of probabilities that the lesion which caused the removal of Mr Robinson’s left eye was a recurrence of a lesion of 2004 and was an injury for the purposes of Section 32(1) of the Workers Compensation & Rehabilitation Act 2003”. 
 
President Hall noted “Howsoever all of that maybe, a set law with reference to such materials without consent and without giving all parties the opportunity to comment upon the material is a fundamental denial of natural justice”. It was considered that once the funding that on the balance of probabilities the lesion that caused the loss of the eye was post July 2003 both the limitation issues and the natural justice issues fall away. 
 
Summary
 
The matter of Robinson certainly does broaden the way in which decision makers must address when the onset of injury occurs. This is not necessarily limited to skin cancers but for any condition which may develop over a long period of time. It gives employers little opportunity to protect themselves from some  potential claims relating to disease and injury, particularly when the exposure may be historic but the symptoms and effects only appearing much later. The statutory period which once afforded many Defendants some confidence is now significantly broadened with such claims.
 
However, it is of note that the inherent power for a Magistrate to inform themselves in any way they see fit does in fact have some limitations, particularly in the application of the principals of natural justice. 

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