July 25, 2019

Workers Compensation

In Trewin v Workers' Compensation Regulator [2019] QIRC 096 Industrial Commissioner Pidgeon of the Queensland Industrial Relations Commission had to determine whether a workers had suffered Chronic Obstructive Pulmonary Disease (COPD) for the purposes of sections 32 and 36A of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

It had already been agreed that the Appellant was a "worker" and that employment was “a significant contributing factor” to the respiratory conditions diagnosed as “chronic bronchitis” and “mild emphysema”.

The sole issue to be determined was whether the Appellant also had COPD.

A finding that the Appellant had COPD would bring his “injury”; within that class of injury recognised by section 36A of the Act as a “latent onset injury”.

Professor Cohen, physician with a speciality in internal medicine, respiratory medicine, pulmonary medicine and critical care medicine diagnosed COPD based on the diagnoses of chronic bronchitis and emphysema and low lung function (low ratio and low diffusion capacity).

Dr McKeon, thoracic physician, reported before the appeal that there was no evidence of COPD. However, when he was examined at the hearing of the appeal and he was given further spirometry testing results after which he changed his position and said: “… So if you put all together, put it all, add it up to emphysema and progressive disease due to COPD.” The Commission found that Dr McKeon ultimately came to the view that it was more likely than not that the Appellant suffered from COPD.

To the extent there was a need to prefer the evidence of one doctor over another - the Commission preferred the evidence of Professor Cohen because:

“ …

  • Professor Cohen has a lot more experience with coal miners than does Dr McKeon;
  • Dr McKeon had only recently been presented with the 23 November 2018 report; and
  • Dr McKeon expresses a view that COPD is diagnosed on the basis of spirometry whereas Professor Cohen arrives at his diagnosis using a range of indicators.

…” (footnotes omitted)

The decision can be found here https://archive.sclqld.org.au/qjudgment/2019/QIRC19-096.pdf