Sharples v Workers' Compensation Regulator
[2015] ICQ 22
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- Sharples v Workers' Compensation Regulator[2015] ICQ 22
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Sharples v Workers' Compensation Regulator[2015] ICQ 22
Sharples v Workers' Compensation Regulator[2015] ICQ 22
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Sharples v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 022 |
PARTIES: | Sharples, Kaye Leslie (Applicant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) |
CASE NO: | C/2015/38 |
PROCEEDING: | Appeal against decision of Industrial Commissioner |
DELIVERED ON: | 13 August 2015 |
HEARING DATE: | 13 August 2015 |
MEMBER: | Deputy President O'Connor |
ORDERS : |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPLICATION FOR COSTS – Appeal against a decision of an Industrial Commissioner to order the applicant to submit to an independent medical examination – Appeal dismissed. |
CASES: | Workers Compensation and Rehabilitation Act 2003, s 556 House v The King (1936) 55 CLR 499 Simon Blackwood (Workers' Compensation Regulator) v Sharples [2015] QIRC 139 |
APPEARANCES: | Mr C.J. Clark, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator). Mr T.P. Sharples, representative of the Applicant. |
DECISION from the bench
- [1]This is an appeal by Kaye Leslie Sharples against a decision given by Industrial Commissioner Neate at Brisbane on 31 July 2015, where the Commissioner made a number of orders pursuant to section 556 of the Workers' Compensation and Rehabilitation Act 2003, requiring that Mrs Sharples submit to an independent medical examination.
- [2]Section 556 of the Act provides:
"Section 556 Additional medical evidence
- (1)This section applies if—
- (a)the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or
- (b)the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal.
- (2)The appeal body may, at any time before or after the start of the hearing, order the claimant or worker to submit to a personal examination by 1 or more specified registered persons.
- (3)The appeal body may also, as the appeal body considers appropriate, make an order about—
- (a)the way, time and place of the examination; and
- (b)costs of the application for the order and of the examination.
- (4)An opinion formed on the examination must be given to the respondent and the respondent must make the opinion available to the appellant.
- (5)Subsection (6) applies if the claimant or worker—
- (a)fails, without reasonable excuse, to attend for the examination at the time and place ordered by the appeal body; or
- (b)having attended, refuses to be examined by a registered person; or
- (c)obstructs, or attempts to obstruct, the examination."
- [3]Mrs Sharples challenges a number of the orders made by the Commissioner on that occasion. The applicant was required to be medically examined to assess her psychiatric and psychological health in regard to being able to effectively participate in some forthcoming hearings which have been set down to commence in Brisbane on 31 August 2015.
- [4]An amended application of appeal was filed in the Commission on 5 August 2015. Not all of the matters contained within the amended application of appeal were argued before me today. Mrs Sharples relevantly is claiming that she suffered a personal injury by way of a psychiatric or psychological disorder, namely a major depressive order and generalised anxiety disorder, or aggravation of her injury. The injury she says, as a secondary teacher at the Palm Beach Currumbin State High School, arose out of or of the course of her employment and that her employment was the major significant contributing factor to her injury for aggravation of the injury.
- [5]On 12March 2015, Mrs Sharples lodged her notice of appeal with the Queensland Industrial Relations Commission against the decision of the Regulator rejecting her application for compensation. Mrs Sharples was represented before the court today by her representative, Mr Terry Patrick Sharples.
- [6]The matter before Commissioner Neate was that the Regulator was seeking an order under section 556 of the Act, requiring Mrs Sharples to submit to a medical examination. In particular, to be satisfied she was medically fit firstly to litigate her own appeal, give evidence-in-chief, be cross-examined, call her own witnesses and cross-examine any witnesses called by the Regulator or alternatively to provide instructions to litigate her own appeal, give evidence-in-chief and to be cross-examined.
- [7]The application was opposed by Mrs Sharples.
- [8]In dealing with the preconditions for the exercise of the discretion in s 556(1) of the Act, the Commissioner found:
"[52] Any litigant in person or their lay representative will find that there are many and varied challenges and difficulties in effectively litigating an appeal under the Act. Some of those challenges must be met well in advance of a hearing (including identifying the issues to be decided and the evidence to be called in relation to each, locating and securing the attendance of witnesses, identifying relevant documents to assist in the prosecution of the case and potentially be tendered as evidence in support of the appeal, preparing lines of examination and cross-examination of witnesses, and complying with the various directions orders made in relation to steps which precede a hearing). Other challenges have to be faced in the course of a hearing (including adducing relevant evidence in ways which conform to the rules of evidence, and making submissions directed to the matters in issue by reference to relevant evidence and legal concepts). It is not unusual for litigants in person to appear before the Commission, and the Commission and the Regulator are experienced in conducting such cases.
[53] Successfully meeting those challenges is potentially more difficult where the appellant is suffering from a psychiatric or psychological condition. The strain of preparing and prosecuting an appeal can be considerable and might exacerbate the appellant's condition, or at least impede their recovery.
[54] The current appeal seems to have all those challenges and potential difficulties, but on a larger scale than usual. The Appellant has indicated that she wishes to call evidence from 18 witnesses. The Regulator has indicated that it wishes to call evidence from 12 witnesses. The hearing time has been estimated as eight to 10 days, and the hearing is scheduled to commence on Monday 31 August 2015 and continue on the following consecutive hearing days.
[55] Assuming that the hearing begins as scheduled and is completed within that timetable, the costs to both parties of presenting their cases are likely to be significant. Those costs would increase if the commencement of the hearing is adjourned at short notice or if the hearing is disrupted (and hence delayed) at some stage for no reason other than that the Appellant is medically unfit to proceed with the hearing, either as a witness or as the person providing instructions to her representative.
[56] In that context, and having regard to:
- (a)the limited direct personal involvement of the Appellant in pre-hearing proceedings before the Commission; and
- (b)the fact that three months ago there was a medical statement that a conference within a confrontational atmosphere would be substantially detrimental to her psychological wellbeing, it is reasonable that the Regulator wishes to be satisfied that the Appellant is medically fit to give evidence-in-chief and be cross-examined and to provide instructions to litigate her appeal.
[57] The Regulator's application must be dealt in accordance with the statutory requirements and by reference to the evidence and submissions summarised above.
[58] I am satisfied that:
- (a)the condition of the worker (i.e. Mrs Sharples), who is said to have sustained a psychological injury, is relevant to the appeal; and
- (b)the nature and extent of her incapacity arising from the injury is relevant to the appeal.
Consequently, both conditions of s 556(1) of the Act are met."[1]
- [9]The Commissioner identified in his reasons for decision, the factors which influenced the exercise of the Commission's discretion. Whilst he recognised that those factors were evenly balanced he nevertheless was of the view that any litigant in person or their lay representative will find that there are many and varied challenges and difficulties in effectively litigating an appeal under the Act. In his reasons, the Commissioner noted that the appellant intended calling 18 witnesses, and the regulator 12 witnesses for a hearing scheduled for eight to 10 days commencing on 31 August 2015. He concluded by finding that successfully meeting those challenges is potentially more difficult where the appellant is suffering from a psychiatric or psychological condition.
- [10]In those circumstances, the Commissioner concluded that it was not unreasonable for the regulator to ensure that the appellant was medically fit firstly to litigate her own appeal, give evidence-in-chief, be cross-examined, call her own witnesses and cross-examine any witnesses called by the Regulator or alternatively to provide instructions to litigate her own appeal, give evidence-in-chief and to be cross-examined.
- [11]After considering the medical evidence before him the Commissioner also observed:
"I have decided to direct that Mrs Sharples be subject to an independent psychiatric examination. In essence, I am concerned that at least two of the three doctors on whose statements Mrs Sharples relies apparently did not have information about the length and complexity of the hearing of the appeal. There is no reason to doubt that their opinions were honestly given, but there is reason to doubt whether those opinions were based on information about the particular circumstances of this appeal. I will not speculate as to whether that information would have affected the opinion of any or all of those doctors."[2]
- [12]The Commissioner was entitled to make the conclusions that he did. It was, in my view, open for him to do so on the evidence before him.
- [13]I cannot be satisfied that the burden upon the appellant in this case to seek to upset the exercise of the discretion, which is provided for under s 556 of the Act has been demonstrated. The principle authority on the exercise of a discretion is the well-known decision of the High Court in the House v The King[3]. It states as follows:
"The manner in which an appeal against the exercise of discretion should be determined is governed by established principles. It is not enough that a judge comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in the exercising of the discretion. If the judge acts upon a wrong principles, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determinations should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order but if, upon the facts, it is reasonably or plainly unjust, the appellate court may infer that, in some way, there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such cases, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the grounds that a substantial wrong has, in fact, occurred."[4]
- [14]On the material before me, the appellant has not demonstrated that the Commissioner has erred in some way in the exercise of his discretion as contemplated by House v The King in that he failed to take account of a material consideration; acted upon a wrong principle; or mistook the facts.
- [15]A number of other aspects of the appeal were not fully canvassed before me and I do not propose to deal with them on this occasion. Having regard to the conclusion I have reached, I would dismiss the appeal. In doing so, I will need to make a series of orders to give effect to what happened before the Commissioner.
Orders
- [16]I make the following orders:
- The appeal is dismissed.
- Pursuant to s 556 of the Workers' Compensation and Rehabilitation Act 2003, Kaye Leslie Sharples is to submit to an independent medical examination by Dr Martin Nothling at Silverton Place, 101 Wickham Tce, Spring Hill, QLD, 4000 at 10.00 am on Tuesday 18 August 2015.
- Dr Nothling is to examine Mrs Sharples for the purpose of assessing her and preparing a medical report to advise the Commission whether in his opinion Mrs Sharples is medically fit:
- (a)to provide instructions to litigate her own appeal, give evidence-in-chief, and be cross-examined; or
- (b)to litigate her own appeal, give evidence-in-chief, be cross-examined, call her own witnesses, and cross-examine any witnesses called by the Regulator.
- As soon as practicable after that examination, Dr Nothling is to provide to the Commission a written report containing his opinion, and the basis on which he has formed that opinion, in relation to the matters specified in order 2.
- The Regulator is to pay the costs of that independent medical examination, the report and the reasonable travel costs to and from the medical examination incurred by Mrs Sharples.
- If, without reasonable cause, Mrs Sharples does not attend the medical examination by Dr Nothling at the time and place specified, she will be required to reimburse the Regulator for the reasonable costs, if any, incurred by it in relation to the medical examination.
- The parties' costs in 2015/WC000059 will be reserved to the Member hearing that appeal.
- There will be no order as to costs with regards to this appeal.