Skin Cancer

Facts

The Claimant was an 81 year old gentleman who had retired from work as a waterside worker on 16 August 1986 aged 60, some 21 years ago.  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 cancer treatments and on 19 June 2006 his left eye was removed as the result of basal cell carcinoma (BCC).  The Claimant had described his injury as occurring over a period of time, whereby he had first experienced symptoms in the 1960’s.

The Claimant had seen a number of specialists in 2004, which identified a potential lesion on the edge of a previously excised tumor, which at that time was not malignant.  This lesion ultimately led to the surgery in 2006 which resulted in the loss of the eye and although the point where the lesion became malignant was not identified, it was determined that by 2004 the Claimant had a diagnosable basal cell carcinoma on the left and right lower lids and his treating doctors recognized the risk of recurrence and the possibility of loss of his eye. 

The claim was rejected by WorkCover on the basis that it was lodged outside the time period stated in the Workers Compensation Act 1916 (six months from onset) and that the injury was a basal cell carcinoma and that as the Claimant had first seen a doctor about this condition on 1 July 1986, the claim was out of time.

On 16 January 2007 the Claimant applied to Q Comp to review this decision. 
On 16 January 2007 Q Comp advised the Claimant’s solicitor that there was no jurisdiction to review the decision as the rights of review did not start until the commencement of WorkCover Queensland Act 1996.

The Claimant’s solicitor then appealed the decision of Q Comp to the Industrial Magistrates Court. 

Issues

• How is basal cell carcinoma to be treated in terms of the onset of injury?
• When does the limitation period cease?

Decision

In determining the onset of basal cell carcinoma much consideration was given to the medical evidence, and the historical cases dealing with disease.  Both Q Comp and WorkCover contended that the Claimants skin cancers must be deemed to have occurred on the last day he worked.  Magistrate Cull considered the definition of injury in the Workers Compensation and Rehabilitation Act 2003 (the Act) and s36A of the Act.  It was noted that suddenness was not necessarily an element of “injury” and that skin cancers develop gradually and can only be diagnosed when identified.

Magistrate Cull determined

“Changes to DNA are imperceptible, and as a precursor or precondition to developing a malignant condition cannot be described as an injury or a disease.  Each new cancerous lesion is a new injury.  In this case the BCC of 2006 was a recurrence of the 2004 BCC, and not a new injury.”

Summary

Most workplaces have adjusted their OHS policies and now insist on outdoor workers being instructed in “sun sense” and “slip slop slap”, there is however always likely to be a risk of an outdoor worker developing skin cancer, particularly in a Queensland climate.  This decision is surprising for those who would have presumed that the limitation period alone would protect an insurer against such an aged claim.

From a statutory perspective this decision broadens the scope of what is considered to be the onset of the injury when dealing with skin cancers, so time from cessation of work itself offers little protection from potential skin cancer claims.

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