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Whiffin, Gaius --- "More than skin deep: Compensation schemes for occupationally acquired skin cancer" [2019] PrecedentAULA 33; (2019) 152 Precedent 42


MORE THAN SKIN DEEP

COMPENSATION SCHEMES FOR OCCUPATIONALLY ACQUIRED SKIN CANCER

Gaius Whiffin

‘This provision and this particular set of facts invite a certain degree of legal imagination. One has to suppress the dictates of logic and to put one's sense of reality to rest ... no matter how 'crazy' it may appear, I am bound to follow the clear deeming provisions of the Act ... it only demonstrates, if one needs further examples, that like mathematics, like logic, the law sometimes does not synchromesh with the real world.’[1]

The above comments come from proceedings brought over 16 years ago before the New South Wales (NSW) Compensation Court in a claim brought by a worker for an occupationally acquired skin cancer condition. The comments demonstrate particular issues that workers’ compensation legislation has faced in attempting to compensate workers who have acquired occupational conditions (or diseases) through a gradual process.

This article concentrates largely upon the provisions which apply to workers suffering occupationally acquired skin cancer conditions and on the legislative landscape in NSW. However these provisions are also relevant to other occupationally acquired conditions (or diseases) that manifest through a gradual process. These conditions will include any condition acquired due to the ‘nature and conditions of employment’. It should be noted that hearing loss conditions in general have their own provisions within workers’ compensation legalisation.

As workers’ compensation legislation is different in each State and in the Commonwealth, the various specific tests in each legislation can be different, although common threads across the legislation relate to how to establish primary liability; what the deemed date of injury is for the skin cancer condition; which employer of the worker is responsible for the condition; and the relevance of delay in a compensation claim for the condition.

PRIMARY LIABILITY

A worker with a skin cancer condition has to show a relationship between the development of the condition and the nature of the relevant employment (generally by showing that the employment involved significant sun exposure during outdoors employment, often without appropriate protection). This is a matter for evidence. It is also essential to ascertain the specific nature of the skin cancer condition. In general terms, solar keratoses and basal cell carcinomas are considered to be related to sun exposure, but sun exposure may not necessarily be the cause of melanomas or squamous cell carcinomas.

Under NSW workers’ compensation legislation, a skin cancer condition is considered to be a disease injury. As a result, employment has to be the ‘main’ contributing factor to the contraction, aggravation, acceleration, exacerbation, or deterioration of the disease.[2] It is no longer sufficient for employment to be simply a substantial contributing factor in this regard.

The main contributing factor test has to be applied to the lay and medical evidence available in a particular case. Certainly, the extent of a worker's childhood and recreational sun exposure becomes highly relevant. A detailed statement of the worker's history of lifetime sun exposure needs to be considered by the medical practitioners providing opinions in a particular case. Again, the nature of the particular skin cancer condition can be relevant in this regard.

Under Commonwealth workers’ compensation legislation, it is necessary to show that a skin cancer condition is a disease that was contributed to to a significant degree by the worker's employment. The legislation then specifically refers to matters that may be taken into account in this regard as being the duration of the employment; the particular tasks involved in the employment; the predisposition of the worker to a skin cancer condition; and the activities of the worker (presumably non-employment sun exposure) not related to employment. ‘Significant degree’ is defined as a degree that is substantially more than material.[3]

Under Victorian workers’ compensation legislation, the skin cancer condition (or disease) needs to be due to the nature of any employment in which the worker was employed.[4] The disease has to arise out of or in the course of employment and employment needs to be a significant contributing factor. Under Queensland workers’ compensation legislation, the skin cancer condition needs to be a disease (or an aggravation of a disease) contracted in the course of employment and where employment is a significant contributing factor to the disease (or its aggravation).[5]

DATE OF INJURY

The various compensation entitlements available to a worker under workers’ compensation legislation often depend upon the date when a particular injury happened. However, skin cancer conditions (like other occupationally acquired conditions that manifest through a gradual process) do not 'happen' on a particular day, by their general definition. Workers’ compensation legislation therefore has to deem a date of injury for the conditions. There are specific sections in workers’ compensation legislation that effect this. It is important to realise, however, that these sections become relevant only once primary liability in an employer for a skin cancer condition has been established (as detailed above).

Under NSW workers’ compensation legislation, there can be more than one deemed date of injury.

The primary proposition is that the injury is deemed to have happened either at the time of incapacity or at the time when the worker makes a claim (if no incapacity has resulted from the skin cancer condition).[6] Therefore, if a worker is claiming weekly incapacity payments, the deemed date of injury will be the last date of employment, for the purpose of that claim.

However, there will be a different deemed date of injury if the worker is making a claim for permanent impairment compensation, as the NSW legislation specifically states that a reference to an injury includes a reference to a permanent impairment.[7]

The NSW Court of Appeal, in considering this provision, found that the deemed date of injury in a claim for permanent impairment compensation could not be earlier than the date when the permanent impairment was assessed:

‘In the present case, the claim for facial disfigurement is a claim for a loss of a thing as the result of an injury, within s66(1), which loss itself is to be treated as an injury within s16(1), as provided by s16(3). The same applies to the claim in respect of bodily disfigurement. Each such loss or injury was the disfigurement assessed by Dr Lobel on 5 March 2003 and included in the amended claim on 10 June 2003; and thus could not have caused incapacity prior to 30 June 1987.’[8]

The effect of the decision in Stone is that a claim for permanent impairment for a skin cancer condition will be determined according to the relevant compensation rates applicable when the claim is made, even if the worker has not worked for many years. Mr Stone's compensation entitlements were calculated at 2003 rates rather than at 1985 rates (when he last worked).

Under Commonwealth workers’ compensation legislation, the date of injury when a skin cancer condition is deemed to have occurred will be the first of either:

1. when the worker first sought medical treatment; or

2. when the skin cancer condition first resulted in incapacity for work or impairment of the worker.[9]

Under Victorian workers’ compensation legislation, the worker's date of disablement needs to be ascertained. That date is deemed to be the date when the worker's medical practitioner certifies that the disablement commenced, or if the medical practitioner is unable to certify such a date, the date of disablement will be the date when the medical practitioner's certificate is given.[10]

Under Queensland workers’ compensation legislation, if a skin cancer condition is a latent onset injury, it is considered that a worker's entitlement to compensation arises on the date of the relevant doctor's diagnosis of a latent onset injury.[11]

EMPLOYER RESPONSIBLE FOR COMPENSATION

As skin cancer conditions are often contracted over a lifetime of work-related sun exposure, and as workers often move between many employers during their lifetime, it is necessary under some workers’ compensation legislation to determine which employer is liable for a worker's claim. The deemed date of injury found for the skin cancer condition is often relevant in this regard, but when that deemed date of injury is found to be many years after a worker ceased working, determining the employer liable for the worker's claim has sometimes been problematic.

Under NSW workers’ compensation legislation, a distinction needs to be made as to whether the skin cancer condition has been contracted through employment or whether the employment aggravated, accelerated, exacerbated, or deteriorated the condition. In the former case, compensation is payable by the employer who last employed the worker in employment to the nature of which the skin cancer condition is due.[12] In the latter case, compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the skin cancer condition.[13]

The distinction is important as it has been found that under s15(1)(b), no causative element is required.[14] An employer can be required to compensate a worker with a skin cancer condition as long as it employed the worker in sufficiently outdoors employment (employment to the nature of which the skin cancer condition was due), even if it employed the worker for such a short period of time that it could not be said to have contributed to the skin cancer condition in any causative manner.

In Rankin, the worker had been diagnosed with melanoma prior to commencing employment with the employer, but the employer was found to be liable for the melanoma condition as the worker's employment with the employer was held to be employment to the nature of which the melanoma condition was due.

Under NSW workers’ compensation legislation, if an employer has become liable under s15 or 16 to pay compensation to a worker in respect of a skin cancer condition in circumstances where the worker had ceased to be employed by the employer prior to the deemed date of the worker's injury, the liability of the employer is still taken to have arisen immediately before the worker ceased to be employed by the employer.[15] The insurer responsible for the employer when the worker last worked will therefore continue to be responsible for compensation claims relating to a skin cancer condition, even when those claims are made many years after the worker ceased working and, indeed, in circumstances where the insurer may not have insured the employer for many years.

Under Victorian workers’ compensation legislation, compensation for skin cancer conditions is recoverable from the employer who last employed the worker prior to the date of disablement in employment to the nature of which the skin cancer condition is due.[16]

DELAY

Because skin cancer conditions often arise many years after a worker has ceased employment, there are sometimes many years between the date when a claim is made and the date when a worker last worked.

However, in circumstances where the deemed date of injury is often the date of the claim, there can be no delay to cause a claim to possibly fail for failure to comply with time limits under workers’ compensation legislation. To quote from Gow again:

‘The applicant's first submission was that I do not need to consider the provisions about delay, about the reasons for delay and about questions of justice and prejudice. The applicant submitted that in respect to a disease, there is no possibility of a delay. The injuries are deemed to have occurred when the claim is made, so the legislation which provides the claim must be made within six months of the injury, just does not apply ... this appears on first flush to be a wonderfully mad submission. However, I think it is probably correct.’[17]

CONCLUSION

The ability to claim compensation for skin cancer conditions under statutory schemes is, by necessity, dependent upon the specific wording in those schemes. The nature of skin cancer conditions (as well as other occupationally acquired conditions that manifest through a gradual process) require there to be a specific legislative framework in order to allow compensation to be payable.

Gaius Whiffin is a Law Society of NSW accredited specialist in personal injury law. He is a partner at Turner Freeman Lawyers' Sydney office and acted for Mr Gow and Mr Stone. PHONE (02) 8222 3333 EMAIL gww@turnerfreeman.com.au.


[1] Gow v Patrick Stevedores [2002] NSWCC 60, paras 14, 15, 18.

[2] Workers Compensation Act 1987 (NSW), s4.

[3] Safety Rehabilitation and Compensation Act 1988 (Cth), s5E.

[4] Workers Compensation Act 1958 (Vic), s12.

[5] Workers Compensation and Rehabilitation Act 2003 (Qld), s32.

[6] Workers Compensation Act 1987 (NSW), ss15(1)(a), 16(1)(a).

[7] Ibid, ss15(4), 16(3).

[8] Stone v Stannard Brothers Launch Service Pty Limited [2004] NSWCA 277, para 38.

[9] Safety Rehabilitation and Compensation Act 1988 (Cth), s7(4).

[10] Workers Compensation Act 1958 (Vic), s20.

[11] Workers Compensation and Rehabilitation Act 2003 (Qld), s36A.

[12] Workers Compensation Act 1987 (NSW), s15(1)(b).

[13] Ibid, s16(1)(b).

[14] Tame v Commonwealth Collieries Pty Limited [1947] NSWStRp 9; [1947] WCR(NSW) 1; Commonwealth v Bourne [1960] HCA 26; [1960] ALR 496; Rankin v Idoko Pty Limited (2000) 19 NSWCCR 619.

[15] Workers Compensation Act 1987 (NSW), s18(1).

[16] Workers Compensation Act 1958 (Vic), s14.

[17] Gow v Patrick Stevedores [2002] NSWCC 60, paras 17, 18.


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