Spray painter’s WorkCover claim for terminal condition

In this article, we explore a case where a worker’s claim for terminal benefits under worker’s compensation was denied by WorkCover Queensland as the medical evidence did not suggest the condition would terminate his life. Upon application to the Workers’ Compensation Regulator, that original decision was confirmed. The worker appealed to the Queensland Industrial Relations Commission (‘QIRC’) who overturned the prior decisions and the worker’s compensation claim for benefits for a terminal condition was ultimately accepted.

Exposure to hazardous chemicals at work
The Appellant, Mr Plant, was a 47-year-old spray painter who had worked in the industry since the age of 15.
During his career, he regularly used paints that contained isocyanates. Mr Plant had worked for a number of different employers which implemented varying standards of workplace safety and equipment. He would work long hours and, even in a managerial role, he was exposed to paint containing isocyanates. He was also a smoker but quit in 2020.
Isocyanates are hazardous chemicals often contained in paints and used in manufacturing materials.
Mr Plant suffered from two conditions as a direct result of exposure to these chemicals. Both conditions are likely to significantly reduce his life expectancy. He was diagnosed with chronic occupational asthma with isocyanate exposure, and chronic obstructive pulmonary disease (‘COPD’).

Worker lodges a WorkCover claim which is rejected
Mr Plant applied for workers’ compensation benefits for latent onset injuries under section 128B of the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’), which entitles workers to compensation for a terminal condition, defined by section 39A of the Act, suffered in the course of their employment.
His application was rejected at first instance by WorkCover Queensland and then by the Workers’ Compensation Regulator (‘the Regulator’) on review.
The Regulator confirmed WorkCover’s decision that the expert medical evidence did not support a conclusion that Mr Plant’s conditions were “expected to terminate his life” within the definition of the meaning of “terminal condition” in section 39A of the Act.
The Regulator determined Mr Plant was not entitled to compensation on the grounds that:
“the predominant contribution to future respiratory failure and shortening of life expectancy is not Mr Plant’s occupational asthma, but rather his cigarette smoking-related emphysema”.
Mr Plant lodged an Appeal of the Regulator’s decision to the QIRC.

The QIRC appeal
In Plant v Workers’ Compensation Regulator [2022] QIRC 169, Mr Plant submitted that the medical evidence available confirmed that his chronic occupational asthma contributed significantly to the reduction of his life expectancy and that the condition exacerbated the COPD, rendering a terminal prognosis.
The Regulator did not accept that the medical evidence satisfied the definition of “terminal condition” under section 39A of the Act and submitted that, on their interpretation of the sub-section, the condition for which compensation is sought must be the actual condition that will terminate the worker’s life.
Mr Plant argued that, given the speculative nature of the section, (being that it is not possible to know if a particular condition has terminated a worker’s life until the worker has passed away), the choice of words when drafting the definition in the legislation was a careful one which aligned with the purpose of section 39A in the Act.
Mr Plant further submitted that the dispute of his entitlement, on the basis that there was a co-existing ‘dominant’ condition more likely to end his life, was not supported by any evidence challenging the doctor’s diagnosis of that latent onset injury and its reduction in his life expectancy.
Mr Plant argued the insurer and Regulator had incorrectly interpreted the purpose of section 39A in the Act because:

  • once a worker’s injury is terminal as diagnosed by a doctor, the worker has a terminal condition within the meaning of the Act;
  • and there is no additional requirement that the insurer or the Regulator considers it right or just that the terminal condition benefits be payable to that worker.

The QIRC decision
The QIRC found in favour of the injured worker.
The QIRC found the legislation does not permit the insurer to insert arbitrary criteria relating to there being a ‘main’ or ‘dominant’ terminal condition.
Industrial Commissioner McLennan agreed with Mr Plant that the respondent was seeking to “construe words up into s 39A(2) [the definition of terminal condition] that are not there” and made comment at paragraph 69 that:
“To allow the Insurer to effectively insert an arbitrary consideration would be to usurp the role of the legislature in making a policy decision as to the appropriate constraints within which
compensation may be paid for terminal conditions.”

In its reasons for the decision, the QIRC found the determination to deny compensation to Mr Plant due to his cigarette smoking was, in the Commissioner’s view, minimising Mr Plant’s terminal conditions of chronic occupational asthma with isocyanate exposure, and COPD.
The Commissioner ultimately found for Mr Plant, setting aside the Regulator’s decision to uphold the rejection of his claim, and awarding costs of the hearing in Mr Plant’s favour.

Source: Hall Payne Lawyers

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