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- Unreported Judgment
INDUSTRIAL COURT OF QUEENSLAND
Parks v Workers’ Compensation Regulator  ICQ 15
WORKERS’ COMPENSATION REGULATOR
20 November 2019
19 March 2019
Martin J, President
The appeal is dismissed.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – INTERFERENCE WITH FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – where the appellant contends that the Queensland Industrial Relations Commission made an error of fact – where the application to amend the ground to an error of law was withdrawn – where the appellant did not seek leave in the Industrial Court of Queensland to appeal on the ground of an error of fact – whether the ground of appeal can be pursued
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – INTERFERENCE WITH FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – where the appellant contended in the Commission that she developed a pain disorder, secondary to a physical injury – where the appellant contends on appeal that the Commission failed to consider evidence relating to whether or not she was displaying symptoms of a pain disorder during a particular time – where the appellant further contends that the Commission erred in finding that MRI imaging was evidence that the appellant did not develop a pain disorder – where the critical issue before the Commission was whether or not the appellant’s employment was a major contributing factor to the pain disorder – whether the Commission considered certain evidence – whether the grounds of appeal assert errors of law or errors of fact – whether the grounds of appeal can be pursued
Industrial Relations Act 2016, s 557
Abbott v Blackwood  ICQ 031, cited
Carlton v Blackwood (2017) 264 IR 414;  ICQ 001, cited
Nutley v Workers’ Compensation Regulator  ICQ 002, cited
Pollard v RRR Corporation Pty Ltd  NSWCA 110, cited
Waterford v Commonwealth (1987) 163 CLR 54, cited
G Carter instructed by Kare Lawyers on behalf of the appellant
S Grey instructed directly by the Workers’ Compensation Regulator
- In October 2014, Ms Parks was employed as a Carton Meat Assessor by Teys Australia Biloela Pty Ltd. She suffered a lower back injury which was accepted by the self-insurer as an “episode of a soft tissue injury”.
- Between that time and the end of February 2015 she was cleared to take part in a return to work program. The self-insurer ceased her workers’ compensation benefits upon determining that she no longer had an incapacity for work. Although she still had some symptoms, the self-insurer, on the basis of reports it had, decided that they were not consistent with the existing pathology. Ms Parks did not seek a review of that decision.
- Notwithstanding the decision to end paying her benefits, Teys did not allow her to return to her position as she was presenting at work with physical limitations. Ms Parks provided three medical certificates advising she was unfit to work and she resigned on 21 May 2015.
- In early October 2015, Dr Rofe, a consultant psychiatrist, issued a workers’ compensation medical certificate in which he said that she suffered from chronic pain/major depression. Ms Parks made a claim based on that certificate. The self-insurer rejected it.
- That rejection was upheld by the Commissioner. The applicant seeks an order setting aside the decision of the Commission and an order that her claim of a psychological injury, secondary to her physical injury, be accepted.
The grounds of appeal
- In her application to appeal, the applicant originally set out five grounds. The fourth and fifth of those grounds were abandoned before the hearing took place. The applicant originally sought leave to amend both the first and second grounds. The application to amend the first ground was withdrawn but the application to amend the second ground was maintained. There was no objection to the amendment sought to ground 2 and so the amendment was allowed. The grounds upon which the appeal was heard were as follows:
“1. In dismissing the appeal, the Commission erred in fact in failing to consider the evidence adduced by the appellant that the origin of her pain experience was the physical injury.
- The Commission erred at law by:
- (a)unreasonably finding that the MRI imaging was evidence that the appellant did not develop a Pain Disorder as a result of the physical injuries and;
- (b)failing to consider evidence adduced by the appellant that a finding of Pain Disorder was available in spite of the MRI imaging.
- The Commission erred by failing to consider the evidence that, although the clinical diagnosis of Pain Disorder may not have been available during her employment, the appellant was suffering symptoms from the date of her physical injury that ultimately did crystallise into a clinically observable disorder.”
Error of law v error of fact
- There was some confusion in the case advanced by the applicant about the nature of the error that was available to be argued. Section 557 of the Industrial Relations Act 2016 (IR Act) applies. It provides:
“557 Appeal from commission
- (1)The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
- (a)error of law; or
- (b)excess, or want, of jurisdiction.
- (2)Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
- (a)error of law; or
- (b)excess, or want, of jurisdiction.
- In Nutley v Workers’ Compensation Regulator, the following was said:
“ Section 561(2) of the [Workers’ Compensation and Rehabilitation] Act applies the relevant provisions of the Industrial Relations Act 2016 to an appeal of this kind. An aggrieved party may appeal a decision of the Commission on the grounds of error of law or excess, or want, of jurisdiction, but may only appeal on a question of fact where leave has been given. Leave was not sought and so the appellant may not argue any ground which relies upon an alleged error of fact.”
- The effect of s 557 was further considered in Carlton v Blackwood. Applying the principles referred to in those cases in cases such as this one, decisions made about symptoms, causes and effects of injuries or illnesses are all questions of fact. If a member of the Commission makes a wrong finding on a question of fact, then that is not able to be used as a ground of appeal unless leave is given under s 557(2). There is no error of law simply in making a wrong finding of fact. When a question arises about a particular finding of fact, the task for an appellant, generally, is to show an absence of evidence supporting the finding. Provided that there is some factual basis for a finding by a member of the Commission, there can be no error of law on the “no evidence” ground. If a member of the Commission makes a finding for which there is no evidence, that will be an appealable error if it is relevant to the case conducted before the Commission.
Sufficiency of reasons
- The applicant relies upon passages from the decision in Abbott v Blackwood. In that decision, consideration was given to the duty of a decision-maker and reference was made to the decision of McColl JA in Pollard v RRR Corporation Pty Ltd. In  of the reasons in Abbott, a summary was given of the analysis undertaken by McColl JA. In this case, the applicant refers to one part of the summary of that analysis, in particular:
“(s) where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried;” …
- Immediately following the summary of the effect of the decision of McColl JA, there is consideration of the application of those types of principles in the Commission. I repeat what is set out there:
“ Of course, when considering whether or not a Tribunal has either overlooked some relevant evidence or misconstrued the issue to be determined, an appeal court must not be quick to apply a critical magnifying glass. I agree, with respect, with what Hall P said in Cameron v Q-Comp:
‘ It is, however, important for an appeal court to refrain from undue ebullience in seeking-out error in decisions written under the pressure of other work and after lengthy trials. I adhere to the view expressed by this Court in Cunningham and Others (Flower and Hart) v William Hamilton Hart, viz:
‘… However, I accept that the Court should not be overly enthusiastic to seek out error. Cases abound in which the need for caution and restraint have been emphasised. It is convenient to commence with the observations of Meagher JA in Beale v Government Insurance Office of NSW:
‘It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.’
Over twenty years later, the nuances of meaning carried by the colourful phrase, ‘miscarriage of justice’, render the passage less helpful than it once was. However, the more moderate formulation in Collector of Customs v Pozzolanic, viz.:
‘This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts: …The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth).’,
continues to be helpful. The observations of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors, are to the same effect. Footnotes omitted, the passage is:
‘These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.’.’ (citations omitted, emphasis added)”
- In the applicant’s written submissions, leave was sought to amend this ground so that it asserted an error of law. But, in the applicant’s submissions in reply the application for leave to amend was withdrawn. Notwithstanding that, the applicant pursued arguments that the Commissioner had erred at law by not considering certain evidence. The respondent replied to that argument both in writing and in oral submissions.
- This ground, on its own terms, was not available to the applicant.
- As it stands, ground 1 asserts an error of fact. The application to amend the ground to a certain error of law was withdrawn. Leave was not sought under s 557(2) of the IR Act. Thus, this ground may not be pursued.
- Under this ground, the applicant argues that it was an error of law for the Commissioner:
- (a)to have “unreasonably” found the “MRI imaging” was evidence that the applicant did not develop a pain disorder, and
- (b)to fail to consider evidence adduced by the applicant that a finding of pain disorder was available despite the “MRI imaging”.
- The applicant submitted that it was an error of law for the Commissioner to “incorrectly” consider the “MRI imaging” evidence and to fail to consider relevant psychiatric evidence.
- In support of this argument, the applicant cites some short passages from the transcript of the evidence of Dr Keys, Dr Rofe, Dr Hendry and Dr Baker. The failure to make reference to those particular parts of the evidence and to assess it demonstrates an error – the applicant says – because that evidence was critical to the issue in dispute.
- In oral submissions, the applicant contended that the evidence did not support a finding that the MRI scan could be determinative of the question of whether employment had been the major significant contributing factor to the applicant’s condition. Mr Carter was asked to identify where the alleged error was encapsulated in the reasons and he relied on .
- In  of her reasons, the Commissioner said:
“ In circumstances where both Dr Rofe and Dr Hendry have largely based their opinions as to what caused Ms Parks’ pain disorder on the occurrence of the initial fall and subsequent MRI imaging (L4-5 disc prolapse and annular tear), I am satisfied the preponderance of evidence from the appropriate medical experts in this matter supports a conclusion that any pathology indicated by the MRI is largely degenerative in nature. I am not persuaded that employment (insofar as it is linked to Ms Parks’ physical workplace injury) has been the major significant contributing factor in the onset of any pain disorder from which she may now be suffering.”
- If there has been a mistake in the reasoning in , then it is an error of fact and not of law. It is clear that the Commissioner gave consideration to the evidence of Dr Rofe and Dr Hendry. In paragraphs  to , the Commissioner refers to the evidence given by Dr Rofe, Dr Hendry and Dr Keys.
- The opinions which the applicant says should have been taken into account by the Commissioner are referred to in . The Commissioner commences that paragraph with:
“The difficulty I have with accepting the opinions of both Dr Rofe and Dr Hendry is that they have been …”
- It is not necessary for the Commissioner to set out the parts of the opinion which she does not accept by reference to transcript. A commissioner is entitled to refer, as this commissioner has, compendiously to the opinions given either by way of report or oral evidenced by experts and explain why she does not accept them. This is what occurred in this case.
- This ground is rejected on the basis that it is based on a misunderstanding of the Commissioner’s reasons and a misunderstanding of the extent to which a commissioner must go in setting out what has been accepted and what has been rejected. Further, on the basis of the reasons given by the Commissioner, this could only be a question of fact which is not able to be pursued on this appeal.
- This ground is effectively determined by the treatment of ground 2. Even if the Commissioner did err by failing to consider evidence that the appellant was suffering symptoms from the date of her physical injury that ultimately did crystallise into a clinically observable disorder, the point is that the Commissioner determined that employment had not been the major significant contributing factor in the onset of any pain disorder. Further, the ground is inconsistent with the evidence of the applicant and the submissions made at the hearing of this application. The evidence was uncontested that the applicant suffered pain from the date of her physical injury due to the injury. The issue for consideration was the continuing experience of pain after the point at which her physical injuries should have resolved. The determination of the Commissioner was that employment was not the major contributing factor to that pain.
- Once again, this is an assertion of an error of fact. The error of law which is alleged is a failure to consider evidence relating to whether or not the applicant was displaying symptoms of pain disorder during a particular time. That is described as a critical issue in dispute. The critical issue, though, is whether or not the applicant’s employment was a major contributing factor to the pain disorder. The determination made by the Commissioner about that, if it was in error, was an error of fact, not of law. It follows that this ground cannot be accepted.
- The application is dismissed.
- Published Case Name:
Norma Parks v Workers' Compensation Regulator
- Shortened Case Name:
Parks v Workers' Compensation Regulator
 ICQ 15
20 Nov 2019