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  • Unreported Judgment

Gay v Workers' Compensation Regulator

 

[2019] ICQ 11

 

INDUSTRIAL COURT OF QUEENSLAND

 

CITATION:

Gay v Workers' Compensation Regulator [2019] ICQ 011

PARTIES: 

Aaron Scott Gay

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

C/2018/24

PROCEEDING:

Appeal

DELIVERED ON:

29 July 2019

HEARING DATE:

18 June 2019

MEMBER:

O'Connor VP

HEARD AT:

Brisbane

ORDER:

  1. Leave is granted to amend the notice of appeal.
  1. Appeal C/2018/24 is allowed.
  1. The decision in appeal WC/2017/111 dated 27 September 2018 is set-aside and remitted back to the Commission to decide according to law. 

CATCHWORDS:

WORKERS' COMPENSATION – EMPLOYMENT RELATED INJURY – APPLYING FOR COMPENSATION – where the Commission held that the Appellant is precluded from pursuing the application for assessment of permanent impairment – whether the Commission erred at law in finding that the Appellant had given an "inconsistent history" or there was an "unsubstantiated history" relied upon – whether there was a failure to give adequate reasons.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2016 (Qld) s 132A

CASES:

Baranadurage v Waverley Forklifts Pty Ltd [2013] VSCA 307

Carlton v Blackwood (2017) 264 IR 414; [2017] ICQ 1

Hunter v TAC [2005] VSCA 1

Hoby v Workers’ Compensation Regulator [2019] ICQ 5

McEnearney v (Simon Blackwood Workers' Compensation Regulator) [2019] ICQ 7

Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd [2015] ICQ 003

APPEARANCES:

Mr J A Greggery QC instructed by Organic Legal for the Appellant.

Ms D Callaghan directly instructed by the Respondent

  1. [1]
    Aaron Scott Gay was employed as a furniture removalist with Kent Transport, a business located in Townsville. The Appellant claims to have suffered an injury to his lumbar spine during his employment.
  1. [2]
    The Appellant applied to WorkCover for an assessment for permanent impairment and failing that subsequently with the Respondent. The Respondent rejected the application on the basis that the Appellant had already lodged an application for a lumber spine injury and therefore was excluded from making an application by virtue of s 132A of the Workers Compensation and Rehabilitation Act 2003.
  1. [3]
    On 20 June 2017 the Appellant lodged a notice of Appeal with the Industrial Registry.
  1. [4]
    On 27 September 2018 the Commission upheld the decision of the Respondent. The Deputy President concluded:

[121] In the circumstances of this case, I have found that the injury (i.e. that of lumbar back strain) for which the Appellant had made an application for workers' compensation on 27 August 2014, is the same lumbar back strain which was the subject of his application for assessment of permanent impairment dated 10 October 2016.  The injury nominated in both applications is exactly the same and consequently the Appellant is precluded from pursuing the application for assessment of permanent impairment dated 10 October 2016.

  1. [5]
    The Appellant now appeals the decision of the Commission to this Court.

Grounds of appeal

  1. [6]
    The Appellant, through its amended notice of appeal, pursues the following six grounds of appeal:  
  1. The Commissioner erred at law in finding that:
  1. There was an "inconsistent history" given by the Appellant;
  2. There was an "unsubstantiated history" relied upon by Dr Maguire
  1. In the alternative to ground 1, the Commissioner erred at law in failing to give adequate reasons in finding that:
  1. There was "inconsistent history" given by the Appellant;
  2. There was an "unsubstantiated history" relied upon by Dr Maguire

 …..

  1. The Commission erred in rejecting the evidence of Dr John Maguire, orthopaedic surgeon
  2. In the alternative to ground 5, the Commissioner erred in failing to provide adequate reasons for rejecting the evidence of Dr John Maguire, orthopaedic surgeon.
  1. [7]
    The Appellant sought leave to amend the notice of appeal to include the following grounds:

7) The Commissioner erred in fact or law in:

  1. Finding that the evidence given by Mr Flynn about his conversation with Mr Gatcliffe was hearsay and provided no clarification about when the Appellant had allegedly advised Mr Gatcliffe of his back injury;
  2. Failing to give the evidence of Mr Flynn about his conversation with Mr Gatcliffe any weight.

 8) The Commissioner erred in fact or in law in:

  1. Finding that the evidence of the Appellant and that of his work colleagues during the period identified by him is not sufficiently reliable evidence other than for saying that the Appellant appeared to suffer some stiffness or soreness in his lower back around the period of time when lifting and moving pianos (reasons [104]);
  2. Failing to provide adequate reasons for finding that the evidence of the Appellant and his colleagues is not sufficiently reliable evidence (reasons [104]).
  1. [8]
    The Appellant abandoned grounds three and four.

Grounds one and two

  1. [9]
    Grounds one and two are inextricably linked and can be conveniently dealt with together. 
  1. [10]
    In short, the Appellant challenges the decision of the Deputy President by submitting that the findings that the Appellant gave an "inconsistent history" and that Dr Maguire relied on an "unsubstantiated history" is not a conclusion which was rationally open. Moreover, it is submitted that in order to make those conclusions it was necessary for the Commission to enter into the issues and explain why the asserted inconsistencies and unsubstantiated history were made out.
  1. [11]
    The crucial part to the Deputy President's reasons can be found in the following two paragraphs:

[120] Against this background, I have accepted the Regulator's opinion that the inconsistent history given over time and in particular, the unsubstantiated history relied upon by Dr Maguire and the lack of any contemporaneous medical history, assessment or investigation done at the time of and between the three events which occurred over three weeks in 2014, is the type of exercise of artificiality to now attempt to divide the injury and impairment between these three events, as described in Anderson v Aged Care Employer Self Assurance.  

[121] In the circumstances of this case, I have found that the injury (i.e. that of lumbar back strain) for which the Appellant had made an application for workers' compensation on 27 August 2014, is the same lumbar back strain which was the subject of his application for assessment of permanent impairment dated 10 October 2016.  The injury nominated in both applications is exactly the same and consequently the Appellant is precluded from pursuing the application for assessment of permanent impairment dated 10 October 2016.

  1. [12]
    Briefly, Kent Transport was engaged to move, disassemble and relocate numerous pianos to and from various concert venues across Townsville for the Festival of Chamber Music held between late July and early August 2014. Whilst Kent’s records were incomplete, at least 16 pianos were delivered to the depot. The first move took place on 25 July 2014 and continued until 11 August 2014.  It was argued that the Appellant suffered, during this period, an injury to his lumbar spine as a consequence of moving the pianos. On 14 August 2014, the Appellant suffered a lower back strain when lifting a filing cabinet in the course of moving office furniture. On 23 August 2014, the Appellant suffered low back pain while at his house which rendered him functionally immobile. He was transported by Ambulance to the Townsville Hospital.
  1. [13]
    The Respondent's case before the Commission centred around what was said to be the inconsistent history given by the Appellant. In that regard, it was contended that the Appellant did not report an injury lifting pianos to either his employer or to a medical practitioner. This fact, says the Respondent, is inconsistent with the Appellant's consultation with Dr Maguire where he stated that he had "booked to see a medical officer" and "he reported the incident".  The Respondent submitted that the Appellant's oral evidence was inconsistent and unreliable as he had "no idea of dates"; was unsure about when he started wearing a back brace; could not recall whether he had any sick leave or time off as a result of the injury; and significantly, the Appellant "did not give any evidence about any acute event during the Festival that caused a back injury nor did he nominate a date, a job or a location at which his symptoms commenced".
  1. [14]
    Dr Maguire was the only orthopaedic specialist called as a witness. His professional opinion was not challenged. In his report of 12 September 2016, he opined that Mr Gay had a degenerative disc disease (spinal spondylosis) with a disc protrusion at L3/4 and L4/5 which is left sided at L3/4 and central at L4/5. Dr Maguire wrote:

It is my opinion your client’s symptoms are consistent with the complaints he describes, and the mechanism of injury described. Mr Gay is very open about his past history and ongoing problems and how severe they became following the most recent exacerbation whilst at work.

  1. [15]
    The Deputy President summarises the Appellant’s history as taken by Dr Maguire and his medical opinion at paragraphs [63] – [70]. At paragraphs [70] – [72], the Deputy President extracts from the transcript the cross examination of Dr Maguire which discussed the contention that Dr Maguire had engaged in an exercise of artificiality by "attempting to separate out two or three injuries or exacerbations which allegedly occurred as a result of three different events within a few weeks…" 
  1. [16]
    There is a recitation of the evidence regarding the Appellant's reporting of the workplace incident in and around paragraphs [80] – [97].  Relevantly, there is little or no commentary as to what the significance of this evidence is or what conclusions her Honour has drawn from the evidence.
  1. [17]
    Her Honour then summarises the Respondent's submissions concerning Dr Maguire's Report at paragraphs [99] – [102].
  1. [18]
    In the Commission, the Respondent challenged Dr Maguire’s evidence on the basis that "there was an inconsistent history given over time". It was asserted that he relied upon an unsubstantiated history given to him by the Appellant. At paragraphs [108] to [117] of the reasons, the Deputy President embarks upon a recitation of the Respondent’s submission in respect of the inconsistencies in the evidence. 
  1. [19]
    It was submitted by Ms Callaghan that the "principle flaws" in the history on which Dr Maguire relied were set out in paragraphs [118] – [119] of the reasons of her Honour as follows:

 [118] Dr Maguire appeared to be under the impression that the Appellant had injured his back by lifting "a heavy piano".  This was not the evidence the Appellant had given during the hearing.

 [119] Dr Maguire, from the history provided to him, had not said that the pain experienced by the Appellant during 28 July 2014 and 10 August 2014 was the most "significant pain".  The Appellant had never said that his pain commenced with the lifting of a piano.  The Appellant's history as provided to Dr Maguire was that his symptoms commenced on 9 August 2014 (as referenced in both of his claims).  Notwithstanding that the Appellant's submissions say that Dr Jiang wrongly recorded the date of injury with filing cabinet as occurring as 9 August 2014, it was the date nominated in both the Appellant's claims.

  1. [20]
    The Respondent concluded its case to the Commission with the following closing submission:

In view of the inconsistent history given over time and in particular, the unsubstantiated history relied upon by Dr Maguire and the lack of any contemporaneous medical history, assessment or investigation done at the time of and between the three events which occurred over three weeks in 2014, it is the type of exercise of artificiality to now attempt to divide the injury and impairment between these three events, as described in Anderson v Aged Care Employer Self Insurance, as set out above.

  1. [21]
    It is evident that the Deputy President adopted the closing submission of the Respondent at paragraph [120] of her reasons.  The adoption of the submission absent the drawing together of a connection between the evidence, the submission, and the ultimate decision is problematic. As submitted by Mr Greggery QC, counsel for the Appellant:

It was necessary for the Commission to enter into the issues and explain why the asserted inconsistencies and asserted unsubstantiated history were made out. This was not achieved by repeating submissions of the parties and proceeding to a conclusion which did little more prefer one submission over the other.

  1. [22]
    The principles guiding the adequacy and nature of reasons are set out in Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd:[1]

[14] A Tribunal need not set out reasons for every step which has led to a decision but it must record the steps which were taken to arrive at the result.

[15] The extent of the reasons which are required to be given will depend upon the circumstances and the context of the case. Generally, reasons should deal with the substantial points which have been raised, including findings on material questions of fact. The reasons should refer to any evidence or other material upon which those findings are based and provide an intelligible explanation of the process of reasoning that is led from the evidence to the findings and from the findings to the ultimate conclusion. Some explanations should be given if the evidence tendered or the submissions made by a party have been rejected. The reasons given must set out the steps that were taken by the Tribunal to arrive at the decision. This allows the parties who have been unsuccessful to determine whether they have a basis for appeal.

[16] It must be understood, though, that the principles set out above do not mean that reasons for decision have to be lengthy or elaborate. A distinction has always been drawn between courts and tribunals. Just as it is not necessary for a judge to make an express finding in respect of every fact leading to, or relevant to, his or her final conclusion of fact, it is not necessary that the judge reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion. The fact that reasons of the Commission might be brief is not necessarily a flaw. Courts conducting reviews or appeals from tribunals have been repeatedly enjoined by the High Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.

  1. [23]
    Ms Callaghan submitted that even if this Court found some deficiencies in the decision the ultimate decision would remain the same and therefore any lack of reasoning is not pertinent.
  1. [24]
    The Deputy President may well be correct in the conclusions which have been reached. However, such a conclusion is not readily apparent. The reasons are not intelligible if they leave the reader to wonder which of a number of possible routes might have been taken to reach the conclusion expressed. 
  1. [25]
    In McEnearney v (Simon Blackwood Workers' Compensation Regulator) this Court was called on to consider, amongst other things, whether the mere repetition of a party’s submissions or the incorporation of them by reference in the decision would satisfy the requirement that reasons be given. Martin J warned that the mere adoption of one party's submissions without adequate consideration of the issues is a practice to be avoided and can give rise to an error of law. His Honour said:

It is an error of law not to provide reasons for a decision. And the mere repetition of a party’s submissions or the incorporation of them by reference in the decision does not satisfy the requirement that reasons be given. The practice of substituting the submissions of one or both parties for the adequate consideration of the issues in a matter is to be avoided.[2]

  1. [26]
    However, in McEnearney, Martin J ultimately held that no error had occurred because the Deputy President did not rely solely on the submissions and argument of the Regulator and went further by examining the three matters which, he said, sufficed "to demonstrate why [he did] not find the Appellant to be a credible witness".
  1. [27]
    The Respondent submits that the "building blocks" are contained within the reasons of the Deputy President. In making that submission, the Respondent identifies in their written submissions some eight matters which they contend support the conclusions reached by the Deputy President. The matters identified by the Respondent are no more than a recitation of the evidence given during the hearing. The fact that these matters have been set out in the decision of the Deputy President does not, without more, constitute an adequate explanation for the decision made.
  1. [28]
    In Hunter v TAC, Nettle JA (as his Honour then was) provided the following clear statement of the obligation to give adequate reasons:

… while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.

 

The requirement to refer to the evidence upon which findings are based is a requirement to analyse the evidence and to explain why some parts of it do and others do not lead to the ultimate conclusion. And that analysis must be recorded in the reasons. In general, and in this case in particular, the mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is about as good as useless.[3]

  1. [29]
    As Beach JA said in Baranadurage v Waverley Forklifts Pty Ltd:

One can always say in respect of any judgment that more could have been said. The question is whether sufficient was said.[4]

  1. [30]
    Whilst it was not necessary for her Honour to set out every step which has led to the decision she was required to set out in sufficient detail how she arrived at the conclusions that she did. The failure to do so is an error of law.

Other grounds of appeal

  1. [31]
    For the reasons already given it is not necessary for me to deal with the other grounds of appeal. It is sufficient to say that the resolution of ground one is related to the resolution of ground five, as is the resolution of ground six related to the resolution of ground two.  However, for completeness, let me briefly deal with grounds 8(a) and (b). These grounds of appeal deal with the finding that the evidence of the Appellant and that of two of his co-workers was not sufficiently reliable evidence. Further, the Appellant submitted that the Deputy President did not provide adequate reasons for such a finding.
  1. [32]
    Two co-workers of the Appellant gave evidence before the Commission. Mr Nicholas Bohlsen and Mr Frances Taylor. There evidence was summarised by the Deputy President as follows:

 [84] Evidence from work colleagues at the time (Messrs Taylor and Bohlsen) was to the effect that the Appellant had appeared to be in pain when he had been lifting a piano and that his work capacity had diminished from that time on.  Also there was evidence that the Appellant had appeared to be very stiff during the period of the Townsville Chamber Music Festival.

 [105] Mr Bohlsen's evidence was that while he had noticed that the Appellant appeared to be stiff during the lifting and moving of pianos, he stated that:

… The first couple of weeks we were all fine.  It wasn't till we had to do it after a couple of weeks every day, day in and day out…

… Yeah, your body gets a lot stiffer after doing it for a couple of days…  The observations he made of the Appellant at that time was that he appeared to be a bit sore.  That was it.  I think we were all sore that day…

  1. [33]
    At paragraph [104] of her reasons the Deputy President found that:

 [104] The evidence of the Appellant and that of his work colleagues during the period identified by him is not sufficiently reliable evidence other than for saying that the Appellant appeared to suffer from some stiffness and soreness in his lower back around the period of time when moving and lifting pianos.

  1. [34]
    There is an internal inconsistency in the reasons of the Deputy President. On the one hand, the Deputy President appears to accept the evidence of Bohlsen and Taylor but as can be seen in paragraph [104] their evidence is rejected on the basis of reliability.
  1. [35]
    The finding by the Deputy President that the evidence of Taylor and Bohlesen was not "reliable evidence" is not explained in the reasons. While it is open for the Deputy President to determine an issue of fact on the reliability of a witness, such a finding must be properly explained. A failure to provide reasons for rejecting the evidence of witnesses whose evidence has been referred to is an error of law.

Conclusion

  1. [36]
    The absence of reasons to support fundamental aspects of the Deputy President’s findings together with the identified failures to expose the path of reasoning is an error of law. 
  1. [37]
    The appeal is allowed. The matter is remitted to the Commission to determine the matter according to law.

Order

  1. Leave is granted to amend the notice of appeal.
  1. Appeal C/2018/24 is allowed.
  1. The decision in appeal WC/2017/111 dated 27 September 2018 is set-aside and remitted back to the Commission to decide according to law. 

Footnotes

[1] [2015] ICQ 003.

[2] [2019] ICQ 7, [17].

[3] [2005] VSCA 1, [21], [28].

[4] [2013] VSCA 307, [25] (emphasis added).

Close

Editorial Notes

  • Published Case Name:

    Aaron Scott Gay v Workers' Compensation Regulator

  • Shortened Case Name:

    Gay v Workers' Compensation Regulator

  • MNC:

    [2019] ICQ 11

  • Court:

    ICQ

  • Judge(s):

    Member O'Connor VP

  • Date:

    29 Jul 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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