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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Fowler v Workers' Compensation Regulator  QIRC 149
Fowler, Lewis Richard
Workers' Compensation Regulator
Appeal against decision of Workers' Compensation Regulator
3 October 2019
3 October 2019
Leave is granted to the Respondent to reopen its case by admitting and relying on the further report of Dr O'Toole dated 9 July 2019
WORKERS' COMPENSATION – APPEAL – INTERLOCUTORY APPLICATION – application for leave to reopen to adduce further evidence – application granted in part
Workers' Compensation and Rehabilitation Act 2003
EB v CT (No 2)  QSC 306
Makita (Australia) Pty Ltd v Sprowles  NSWCA 305; (2001) 52 NSWLR 705
Smith v New South Wales Bar Association  HCA 36; (1992) 176 CLR 256
Reid v Brett  VSC 18
Mr J. Greggery QC instructed by Organic Legal for the Appellant.
Mr B. McMillan of Counsel, directly instructed by the Workers' Compensation Regulator, the Respondent.
Reasons for Decision (Ex tempore)
- Mr Lewis Fowler was employed by Sullivan Nicolades Pathology in Townsville in the position of Pathology Services Assistant.
- In 2016, when Mr Fowler was working at Sullivan Nicolades Pathology, he noticed pain in his right shoulder. In August and September 2016, Mr Fowler consulted his general practitioner about his right shoulder pain. These consultations resulted in an ultrasound being conducted on his right shoulder on 9 September 2016. The recorded impression of the radiologist was 'Mild subacromial subdeltoid bursitis due to impingement.'
- Mr Fowler successfully applied for workers' compensation under the Workers Compensation and Rehabilitation Act 2003 ('the Act') in respect of that injury.
- Mr Fowler was absent from work from August 2016 returning to full-time duties in February 2017. On 21 June 2017, Mr Fowler attended upon his general practitioner complaining of ongoing right shoulder pain. On 22 June 2017, an ultrasound was undertaken of his right shoulder which found that the subdeltoid bursa was mildly thickened. The impression given included: '…bursal impingement of abduction consistent with subdeltoid bursitis/peritendinosis.'
- By a Workers' Compensation Medical Certificate dated 11 July 2017, Mr Fowler's general practitioner certified that he was suffering from: 'Right shoulder bursitis with impingement'.
- A further ultrasound conducted on 20 July 2017 again found a slight thickening of the subdeltoid bursa. The impression given was: 'Mild subacromial bursitis.'
- On about 27 July 2017, Mr Fowler made another application for workers' compensation for an injury his right shoulder. The injury identified was bursitis. That application was rejected by WorkCover Queensland for the reason that Mr Fowler's employment did not cause or aggravate his condition.
- Mr Fowler then applied to the Workers' Compensation Regulator ('the Regulator') for a review of that WorkCover decision. By review decision of 4 December 2017, the Regulator confirmed the WorkCover decision ('the review decision').
- By notice of appeal lodged on 12 January 2018, Mr Fowler appealed against the review decision.
- From Mr Fowler's Statement of Facts and Contentions filed on 6 April 2018, the issues on appeal are:
- whether Mr Fowler suffered an aggravation of his right shoulder subacromial bursitis which arose out of or in the course of his employment; and
- whether his employment was a significant contributing factor to the aggravation.
- Mr Fowler contends that:
- the injury occurred over a period of time from 21 February 2017 to 20 June 2017; and
- the injury occurred while Mr Fowler was doing his usual work activities which involved undertaking repetitive reaching movements away from his body at or above right shoulder height and in respect of some tasks when he was required to overreach due to the ergonomic setup of the various benches.
- The appeal was heard in Townsville on 25 and 26 February 2019.
- As part of his case, Mr Fowler called evidence from Dr John Maguire, Orthopaedic Surgeon. The Regulator called evidence from DrChristopher Cunneen, Occupational and Environmental Physician and DrSid O'Toole, Occupational and Environmental Physician.
- Dr O'Toole was the last witness called. After the re-examination of Dr O'Toole, Mr Fowler sought leave to reopen his case to re-call Dr Maguire. The basis for the application for leave was that Dr O'Toole, in his evidence in cross-examination, referred to the American Medical Association Guides to the Evaluation of Injury and Disease Causation ('the AMA guides') about the issue of a causal connection between repetitive movements of the arm and bursitis. His evidence about that went further than that contained in his tendered written reports, being Exhibits 12 and 13.
- Dr O'Toole's evidence in cross-examination was that by reference to the AMA guides, repetition alone was insufficient to cause subacromial bursitis and significant force would have to be involved.
- Counsel for Mr Fowler framed the application for leave to reopen on the basis of, having regard to Dr O'Toole's evidence, there was a need to ascertain if Dr Maguire could provide evidence to the question of whether, having regard to the AMA guides, repetitive movement, with or without force, was a cause of bursitis.
- Counsel for the Regulator, very properly, did not object to the application for leave being made because its case went beyond that as contained in the written reports.
- In those circumstances, I granted the application.
- However, subsequently, a further report from Dr Cunneen and a further report from Dr O'Toole was served on Mr Fowler's solicitors.
- Mr Fowler objects to the Regulator reopening its case to adduce the two further reports from Dr Cunneen and from Dr O'Toole.
- The question for determination is whether I should grant leave to the Regulator to reopen its case on the basis as sought.
Mr Fowler's submissions
- Mr Fowler objects to the Regulator reopening its case on the following bases.
- It is submitted that is unfair for the Regulator reopen its case. This is made on a number of grounds.
- First, it submitted it is unfair because Mr Fowler sought to reopen his case because of the unfairness he suffered by Dr O'Toole's evidence which referred to the AMA guides, which were not referred to in his reports and in respect of which Dr Maguire was not cross-examined. It was submitted that the same unfairness did not arise from Dr Cunneen's evidence because, amongst other things, Dr Cunneen deferred to the expertise of Dr Maguire in respect of the diagnosis and treatment of subacromial bursitis.
- Secondly, it is submitted it is unfair because Mr Fowler has suffered additional cost in obtaining a further report from Dr Maguire and has suffered delay because of the need to address the deficiencies in Dr O'Toole's reports.
- Thirdly, if the Regulator is granted leave to reopen its case, Mr Fowler will have to incur the further costs in having to prepare the further cross-examination of Dr Cunneen and Dr O'Toole which will also contribute to further delay which impacts upon the recollection of the evidence by the parties and by the Commission.
- Mr Fowler also submits that the further reports from Dr Cunneen and Dr O'Toole are irrelevant. This submission is made a number of grounds.
- First, it is submitted that the further report of Dr O'Toole confirms he was not asked to address the confined point of whether his reliance upon the AMA guides in his evidence was substantiated by the content of the AMA guides and that Dr O'Toole's evidence goes beyond his earlier evidence about the AMA guides and that he was invited, and did, provide unlimited comment.
- Secondly, it is submitted that his further report, Dr Cunneen:
- confirmed he disagreed with Dr Maguire's further opinion and that he appears to resile from the concessions he made in cross-examination, thereby advocating for his own opinion;
- refers to the AMA guides in a way in which he could have given evidence‑in‑chief or re-examination, or in his original reports;
- expresses an opinion about sustained and awkward postures in the AMA guides when that point was not raised by Dr O'Toole in his evidence in respect of the AMA guides;
- does not attach the 'Schedule of attached reports and other material' upon which is opinion is based; and
- cites additional sources which have not been provided by the Regulator or attached to the report, thereby repeating the same error which led to the need for Mr Fowler to reopen his case to address the consequential unfairness.
- Mr Fowler then submits that:
- it is unremarkable to foreshadow that he will again need to seek leave to reopen his case to address the further evidence and sources referred to by Dr Cunneen if leave is granted to admit his further report; and
- in the circumstances, it is evidence which could have been provided earlier, by reasonable diligence and it causes prejudice by reason of delay and cost and the intangible factors referred to by Applegarth J in EB v CT (No.2).
- Finally, Mr Fowler submits that:
- the Regulator elected to conduct its case by calling occupational physicians in response to the orthopaedic surgeon he called, and that the Regulator's evidence does not comply with the fundamental requirements identified in Makita (Australia) Pty Ltd v Sprowles; and
- the Regulator ought not be permitted endless opportunities to try and bolster its position to attempt to repair the damage done to its case in cross‑examination to Mr Fowler's prejudice.
The Regulator's submissions
Makita (Australia) Pty Ltd v Sprowles ('Makita')
- In relation to Mr Fowler's submissions regarding the fundamental requirements of expert evidence referred to in the case of Makita, the Regulator makes a number of submissions.
- First, Mr Fowler did not object to the admissibility of the reports of Dr Cunneen and Dr O'Toole tended at the hearing in February and did not challenge the qualifications of Dr Cunneen or Dr O'Toole's as expert witnesses.
- Secondly, both Dr Cunneen and Dr O'Toole were cross-examined at length at the hearing on 26 February 2019 about the intellectual and factual basis for the opinions expressed in their tendered reports.
- Thirdly, the objections made to the further reports of Dr Cunneen and Dr O'Toole are premised on submissions of unfairness and, to a limited extent relevance, but they do not identify any basis for the suggestion they do not meet the criteria for the admissibility of expert evidence referred to in Makita,
- In respect of relevance, the Regulator submits that the central issue considered by the further reports, sought to be relied upon by Mr Fowler and by the Regulator, is the use of the AMA guides and the role of force in causation of '…shoulder tendinopathy, impingement and rotor cuff tears' and that the role of force, or lack thereof, in the causation of any injury Mr Fowler is found to have suffered is central to the determination of the appeal.
- The Regulator further submits, contrary to the submissions made by Mr Fowler, that there was no divergence in the opinions of Dr Cunneen and Dr O'Toole because Dr Cunneen's concession about deferring to the opinion of Dr Maguire was only in respect of diagnosis management and treatment and that his opinion as to the mechanism of Mr Fowler's injury, not arising from work, did not diverge from that of Dr O'Toole to any extent.
- The Regulator submits that having regard to the above considerations, the additional expert evidence sought to be adduced by it is clearly relevant to the matters and issues between the parties.
- The Regulator further submits having regard to the principles in Reid v Brett:
- (a)first, it is in the interests of justice that the Regulator's further evidence be admitted;
- (b)secondly, given the need for clarification of the expert evidence on the issue of force and causation, the Regulator's further evidence, if accepted, would most probably affect the result of the appeal;
- (c)thirdly, while it was accepted that Dr Cunneen and Dr O'Toole could have referred to the AMA guides in their tendered reports, their opinions have not materially changed from those expressed in their reports, the role of the AMA guides in informing those opinions was only revealed the course of cross‑examination, the subsequent request of Mr Fowler to reopen this case could not have reasonably been anticipated earlier and, as such, the need for further consideration of Mr Fowler's further expert evidence by the Regulator's experts could not have reasonably been anticipated;
- (d)fourthly, any prejudice to Mr Fowler, upon admission of the Regulator's further evidence, such as the imposition of any additional costs necessary to test that evidence, may be remedied, if necessary, by an appropriate order as to costs upon determination of the appeal; and
- (e)finally, given the view expressed in the decision of the High Court in Smith v New South Wales Bar Association prejudice to the other side should be the primary consideration and in circumstances where any such prejudice may still be cured, it is in the interests of justice to allow the Regulator's application to reopen its case.
The relevant authorities and principles
- The relevant authorities and principles in deciding whether to exercise discretion to grant leave to a party to reopen its case were reviewed by Applegarth J in EB v CT (No.2).
- In that case his Honour stated:
- (a)first, the guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application;
- (b)secondly, in Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgement have been delivered and that as to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side;
- (c)thirdly, in Reid v Brett, the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded, but judgement has not been delivered, were said to be:
- the further evidence is so material that the interests of justice require its admission;
- the further evidence, if accepted, would most probably affect the result of the case;
- the further evidence could not by reasonable diligence have been discovered earlier; and
- no prejudice would ensue to the other party by reason of the late admission of the further evidence;
- (d)fourthly, the reference by the High Court in Smith v New South Wales Bar Association to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants; and the prejudice caused by delay in the delivery of an expected judgement at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs; and
- (e)finally, the interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.
Should the Regulator be given leave to reopen its case as sought?
- The basis for Mr Fowler being granted leave to reopen his case arose out of the evidence given in cross‑examination by Dr O'Toole on 26 February 2019. Dr O'Toole's evidence in cross-examination was that, by reference to his own experience and to the AMA guides, repetition alone was insufficient to cause subacromial bursitis and that significant force would be needed. The identified issue for the application to reopen by Mr Fowler was whether Dr Maguire could comment on the question of whether, having regard to the AMA guides, what role force played with repetitive movement as a cause of bursitis.
- Dr O'Toole has provided a further report. The Regulator seeks to reopen its case by, in part, relying upon that further report of Dr O'Toole. Dr O'Toole's earlier reports were admitted into evidence without objection. He is an expert witness. Dr O'Toole's further report dated 9 July 2019 does provide a response to Dr Maguire's further report dated 27 May 2019, as filed on 1 August 2019, which has now become Exhibit 14.
- The issue of whether the Regulator should be given leave to reopen its case by relying upon Dr O'Toole's further report is finely balanced. As Applegarth J stated in EB v CT (No.2), the governing principle is whether or not the interests of justice are better served by allowing or refusing leave to reopen.
- The basis for the grant of leave for Mr Fowler to reopen his case was the evidence given in cross-examination by Dr O'Toole where he referred, for the first time, to the AMA guides and the issue of force. If leave is granted to the Regulator to reopen its case on the basis of Dr O'Toole's further report, there will be some prejudice to Mr Fowler in terms of delay. However, I do note that Dr Maguire's further report is dated 27 May 2019 and was filed on 1 August 2019. There is also some prejudice to Mr Fowler in terms of additional cost.
- However, Dr O'Toole's further evidence is material, because it does respond to Dr Maguire's further report about the phrase, 'shoulder impingement syndrome', referred to in the AMA guides; and it also responds to Dr Maguire's evidence about repetitive activity and its relationship to bursitis.
- the limited basis upon which Mr Fowler was given leave to reopen, which concerned Dr O'Toole's evidence about the AMA guides and repetition and the issue of force;
- the fact that Dr Maguire's further evidence concerns that limited issue; and
- that Dr O'Toole's further evidence is material to those issues,
then, in my view, it is in the interests of justice to allow the Regulator to reopen its case to adduce that further evidence from DrO'Toole.
- While Dr O'Toole's further evidence could have been given earlier by reasonable diligence, in my view, that issue is outweighed by the materiality of his evidence and its relationship to the limited basis upon which Mr Fowler was given leave to reopen his case. As counsel for the Regulator submitted, the weight I give to any further evidence admitted is a matter for submissions.
- However, in my view, it is not in the interests of justice to give leave to the Regulator to reopen its case by adducing further evidence of Dr Cunneen. There are four reasons for this.
- First, the basis for Mr Fowler applying for and being given leave to reopen his case was Dr O'Toole's further evidence in cross-examination about the AMA guides, and the issue of repetition and the relationship to force. Dr Maguire's further evidence goes only to that issue and not to any evidence given by Dr Cunneen.
- Secondly, it would be inconsistent with the limited basis upon which Mr Fowler was given leave to reopen his case to permit the Regulator to rely on Dr Cunneen's further evidence.
- Thirdly, even though Dr Cunneen's further report in part responds to Dr Maguire's further report, it is evidence which could have, with reasonable diligence, been given earlier.
- Finally, the remaining aspects of Dr Cunneen's further report go beyond any response to Dr Maguire's further report being Exhibit 14.
- On that basis I grant leave to the Regulator to reopen its case by admitting and relying on the further report of Dr O'Toole only and not that of Dr Cunneen.
 Exhibit 1, page 83.
 Exhibit 1, page 85.
 Exhibit 2.
 Exhibit 1, page 86.
 T 2-30, ll 26-36.
 T 2-39, ll 33-35.
 T 2-40, ll 23-28.
 T 2-40, ll 30-39.
  QSC 306 ('EB').
  NSWCA 305;(2001) 52 NSWLR 705,  (Heydon JA).
  VSC,  (Habersberger J) ('Reid').
  HCA 36; (1992) 176 CLR 256, 267 (Brennan, Dawson, Toohey and Gaudron JJ) ('Smith').
 EB (n 9).
 Ibid .
 Smith (n 12) 267.
 EB (n 9) .
 Reid (n 11) .
 EB (n 9) .
 Smith (n 12) 267.
 EB (n 9) .
 Ibid .
 Ibid .
- Published Case Name:
Lewis Richard Fowler v Workers' Compensation Regulator
- Shortened Case Name:
Fowler v Workers' Compensation Regulator
 QIRC 149
03 Oct 2019