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Workers' Compensation Regulator v Adcock[2022] ICQ 16

Workers' Compensation Regulator v Adcock[2022] ICQ 16

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Workers’ Compensation Regulator v Adcock [2022] ICQ 016

PARTIES:

WORKERS’ COMPENSATION REGULATOR

(appellant)

v

MALCOLM ADCOCK

(respondent)

FILE NO/S:

C/2021/14

PROCEEDING:

Appeal

DELIVERED ON:

24 May 2022

HEARING DATE:

20 October 2021 and 4 March 2022

MEMBER:

Davis J, President

ORDER/S:

  1. The appeal is dismissed.
  2. The respondent file and serve upon the appellant by 3 June 2022 any written submissions on the costs of the appeal.
  3. The appellant file and serve upon the respondent by 10 June 2022 any written submissions on the costs of the appeal.
  4. The respondent file and serve upon the appellant by 17 June 2022 any submissions in reply on the costs of the appeal.
  5. The parties have leave to file and serve by 1 July 2022 any application for leave to make oral submissions on the costs of the appeal.
  6. In the absence of any application to make oral submissions on the costs of the appeal being filed by 1 July 2022, the question of costs will be decided on any written submissions filed without further oral hearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where the appellant is the Workers’ Compensation Regulator (the Regulator) under the Workers’ Compensation and Rehabilitation Act 2003 (WorkCover Act) – where the respondent was injured at work and claimed workers’ compensation payments – where WorkCover ceased the payments on the basis that the respondent was no longer incapacitated – where the Regulator confirmed the decision of WorkCover – where the Queensland Industrial Relations Commission (QIRC) ruled that the respondent was incapacitated at a later date – where the Regulator appealed the QIRC’s ruling – where the Regulator alleged that the Industrial Commissioner asked herself the wrong question – where the Regulator alleged that the Industrial Commissioner had made findings not supported by any evidence – where the respondent contended that the judgment of the QIRC should be upheld on grounds that he was partially incapacitated – whether error in the QIRC is shown

Industrial Relations Act 2016, s 557

Workers’ Compensation and Rehabilitation Act 2003, s 114B, s 144, s 144A

CASES:

Abalos v Australian Postal Commission (1990) 171 CLR 167, followed

Adcock v Workers’ Compensation Regulator [2017] QIRC 086, related

Adcock v Workers’ Compensation Regulator [2021] QIRC 227, related

Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, followed

Colbran v Workers’ Compensation Board of Queensland (1996) 152 QGIG 1180, cited

DL v The Queen (2018) 266 CLR 1, followed

Fox v Percy (2003) 214 CLR 118, followed

Greer v Greer [2021] QCA 143, followed

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed

APPEARANCES:

D Callaghan instructed by the Workers’ Compensation Regulator, the appellant

A Wright of Boylan Lawyers for the respondent

  1. [1]
    This is an appeal by the Workers’ Compensation Regulator against a decision of the Queensland Industrial Relations Commission (QIRC)[1] varying the Regulator’s decision made under s 144A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Workers’ Compensation Act).

Background

  1. [2]
    The respondent, Mr Adcock, was employed as a camp cook.  On 25 August 2015, he suffered an injury to his left ankle while at work.
  2. [3]
    As he was not capable of resuming employment, Mr Adcock made a claim under the Workers’ Compensation Act.  Mr Adcock’s claims for compensation have a lengthy history which is not necessary to repeat.[2]
  3. [4]
    By the time the present case fell for decision in the QIRC, the Regulator’s decision was:
  1. there was no entitlement to payments of weekly compensation after 26 August 2016;[3] and
  2. Mr Adcock has an entitlement to payment of medical expenses and hospitalisation until 21 February 2018 but not beyond.[4]
  1. [5]
    Mr Adcock appealed that decision to the QIRC.  The appeal was allowed and the following orders made:

“1. That the decision of the Workers’ Compensation Regulator be set aside.

  1. 2.That pursuant to s 144A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the Appellant’s[5] incapacity is determined to have ceased as at 30 November 2017.
  1. 3.That pursuant to s 144B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the Appellant’s requirement for medical treatment continued until 27 February 2018, being 20 business days following receipt of the notice of assessment and offer pursuant to s 190.
  1. 4.That the Respondent pay the costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.”
  1. [6]
    The Regulator appeals part of the QIRC’s decision.  It accepts order 3 made by the QIRC but submits that the QIRC erred in making order 2.  It submits that the entitlement to payments of weekly compensation ended on 26 August 2016, not 30 November 2017.
  2. [7]
    By application to appeal, the Regulator raised three grounds of appeal and a fourth was added by amendment.  The four grounds of appeal are:

“1. Whilst acknowledging the onus of proof rested with the appellant worker in the Commission (now the respondent) to demonstrate that he had an incapacity to work after 26 August 2016 arising from the accepted left ankle injury arising from his employment on 25 August 2015, the Commission erred in effectively reversing the onus of proof onto the respondent Regulator (now the appellant) by basing its decision on being ‘not persuaded that there is sufficient evidence that the appellant was no longer incapacitated for work after 26 August 2016 as a result of his injury’.

  1. 2.The Commission erred in determining that the respondent has an incapacity to work after 26 August 2016 when there was no accepted evidence to support that finding.
  1. 3.The Commission erred in making its determination by drawing an inference about incapacity based on a possibility, rather than applying the required standard of proof.
  1. 4.The Commission erred by improperly rejecting or ignoring material evidence of Dr Ng.”

The issues in the present appeal

  1. [8]
    It was common ground in the QIRC and is common ground here that Mr Adcock was, after the accident, relevantly incapacitated.  In context, incapacity means being of reduced physical capacity such as to be unable to work in the labour market in which he was working or might reasonably be expected to work.[6]
  2. [9]
    It is also well-established that Mr Adcock, being the appellant to the QIRC, bore the onus of proving the wrongness of the Regulator’s decision.  Therefore, the issue in the QIRC was whether Mr Adcock proved incapacity after 26 August 2016 and up to 30 November 2017.  The central issue here is whether the QIRC’s determination that the incapacity continued to 30 November 2017 is affected by legal error.[7]
  3. [10]
    The appeal came before me for hearing on 20 October 2021.  It appeared that Mr Adcock sought to defend the appeal on grounds which might be different to the grounds upon which he was successful in the QIRC.
  4. [11]
    On 20 October, the appeal was adjourned and I made the following orders:

“1. The respondent has leave to support on appeal the orders made by the Queensland Industrial Relations Commission on a ground other than those found by the Commission, namely:

That the capacity of the respondent to return to restricted duties as described by Dr Wilson in his report and evidence does not amount to capacity relevantly to the issues between the parties (the contention).

  1. 2.By 4pm on 17 November 2021, the respondent file and serve submissions on the contention.
  1. 3.By 4pm on 1 December 2021, the appellant file and serve submissions on the contention.
  1. 4.Unless either party files an application by 4pm on 15 December 2021 for leave to make oral submissions or further written submissions, the appeal, including the contention, will be decided without further oral hearing.
  1. 5.Costs reserved.”
  1. [12]
    Written submissions were exchanged and, pursuant to the grant of leave,[8] Mr Adcock sought to make further oral submissions.  I heard further oral submissions from both parties on 4 March 2022.

The grounds

Ground 1: Reversal of onus

  1. [13]
    Once it is understood that Mr Adcock bore the onus of proof to show that the Regulator had erred, the question for determination by the QIRC was whether Mr Adcock had shown that he was incapacitated up to 17 November 2016.
  2. [14]
    There are various statements in the QIRC’s reasons which bear on the onus of proof. 
  3. [15]
    The Industrial Commissioner began the judgment with a description of the history of Mr Adcock’s claim for compensation and an explanation of the decisions of WorkCover and the Regulator.[9]  She then turned to record some non-contentious facts[10] before making some observations as to the “Nature of the Appeal”.  In this respect she said:

“[9] The appeal to the Commission is conducted by way of a hearing de novo in which the Appellant[11] bears the onus of proof.[12] The questions to be answered in the determination of the appeal are:

  1. (a)
    whether the Appellant had an incapacity for work after 26 August 2016 arising from the effects of the injury to his left ankle sustained at work on 25 August 2015; and
  1. (b)
    whether the Appellant had an entitlement for medical treatment after 21 February 2018.”
  1. [16]
    The Regulator takes no issue with the statement of principle in paragraph [9] of the judgment below.
  2. [17]
    The Industrial Commissioner referred to various provisions of the Workers’ Compensation Act.[13]  She analysed the medical evidence[14] and then turned to the other evidence[15] before recording the parties’ submissions.[16]
  3. [18]
    On the consideration of the parties’ submissions, this was stated by the Industrial Commissioner:

“[73] The Appellant submits that the medical evidence supports the proposition that the Appellant’s injury continues to incapacitate him for work, stating:

  • the Appellant disputes that his injury stopped on 26 August 2016 and says his injury continues to incapacitate him for work, at least partially to this day;
  • Dr Wilson stated that the Appellant could return to full time employment at least by 30 November 2017. The 30 November 2017 date is important as that is the date the Respondent’s own expert is suggesting the incapacity ends, not 26 August 2016. Remedial legislation gives the benefit to the worker and so 30 November 2017 would be the correct date all else being agreed; and
  • it is not accepted, however, that the incapacity ends on 30 November 2017 as the above restrictions would remain. Those restrictions would still reduce the sale of the Appellant's labour on the open labour market.”

And:

“[77] The Respondent made the following submissions with respect to the medical evidence:

  • The Appellant did not provide any consistent and persuasive medical evidence that he had a partial or total incapacity to work as at or in the months after 26 August 2016 as a result of his work related injuries; …”
  1. [19]
    These submissions, as recorded by the Industrial Commissioner, are consistent with the proper legal inquiry as to whether Mr Adcock has proved incapacity past 26 August 2016.
  2. [20]
    At paragraphs [81] and [82] of the judgment below, this was said:

“[81] The decision to be made is whether the Appellant had an ongoing incapacity for work at the time compensation ceased on 26 August 2016 and had an entitlement to medical treatment beyond 21 February 2018. The Appellant bears the onus of proof that his incapacity because of the work related injury had not ceased at 26 August 2016 and compensation for medical treatment continued beyond 21 February 2018.

[82] Whether the incapacity had resolved on or before weekly payments and benefits were ceased is a question to be determined primarily on the medical evidence. The onus rests with the Appellant to show that after 26 August 2016, in accordance with the principles in Thompson, the Appellant had a disability preventing him from doing work in the labour market open to a cook or in any other labour market which, based on the Appellant’s employment history, he may have reasonably expected to work.”[17] (emphasis added)

  1. [21]
    The Regulator takes issue with paragraph [82].  It is submitted that the question is not “whether the incapacity had resolved” but “whether [Mr Adcock] adduced probative and persuasive evidence that it[18] had continued”.[19]
  2. [22]
    That submission reflects a semantic and overly critical analysis of the reasons which is contrary to authority.
  3. [23]
    In Soulemezis v Dudley (Holdings) Pty Ltd,[20] Kirby P (as his Honour then was) in dissent in the result said, in a passage subsequently approved by the High Court in DL v The Queen:[21]

“This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed fact questions and to list the findings on the principal contested issues.”[22]

  1. [24]
    In DL,[23] it was observed, following Soulemezis:

“At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge’s conclusion’.[24] At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[25]”

  1. [25]
    The parties both accepted that there was an incapacity.  Whether the incapacity had resolved or whether the incapacity had continued is, in the context of the forensic contest before the QIRC, the same question.
  2. [26]
    The Regulator’s real complaint is with paragraph [107].  That is:

“[107] In consideration of all the evidence in the proceedings, there is insufficient evidence to support the conclusion that the incapacity had resolved and that the Appellant was no longer incapacitated at 26 August 2016. In these circumstances I find, pursuant to s 144A of the Act, that the incapacity had not conclusively ceased until 30 November 2017.”

  1. [27]
    One interpretation of paragraph [107] is that the Industrial Commissioner is requiring evidence to prove that the incapacity had resolved or, in other words, looking for evidence that the incapacity did not continue past 26 August 2016.  That, the Regulator submits, evidences an impermissible reversal of the onus of proof.
  2. [28]
    Paragraph [107] cannot be looked at in isolation and must be approached consistently with the principles explained in Soulemezis and DL.
  3. [29]
    In paragraph [98] of the judgment below, the Industrial Commissioner observed:

“[98] After considering all of the medical evidence, I am not persuaded that there is sufficient evidence that the Appellant was no longer incapacitated for work after 26 August 2016 as a result of his injury. The weight of medical evidence suggests that the incapacity ceased in November 2017. I accept Dr Wilson’s opinion that the incapacity had ceased by 30 November 2017.” (emphasis added)

  1. [30]
    The Industrial Commissioner has, in my view, made one of two errors:
  1. reversed the onus of proof so that the absence of evidence between 26 August 2016 and 30 November 2017 left her “unpersuaded” and so the Regulator fails; or
  2. misunderstood the evidence of Dr Wilson as being an opinion that the incapacity subsisted until, but resolved in, November 2017.
  1. [31]
    The reference to “the weight of medical evidence [suggesting] that the incapacity ceased in November 2017” is certainly consistent with a positive finding based on the balance of probabilities.  That is made clear by the sentence which follows, namely “I accept Dr Wilson’s opinion that the incapacity had ceased by 30 November 2017”.
  2. [32]
    As will emerge from the reasons which explain other grounds, the evidence from Dr Wilson that the incapacity had ceased by 30 November 2017 seems to have been regarded as evidence that the incapacity persisted until 30 November 2017.  That is the only reasonable explanation for the Industrial Commissioner’s finding at paragraph [98] that “the incapacity ceased in November 2017”.
  3. [33]
    When the reasons below are read as a whole and are read fairly, it is clear that the Industrial Commissioner has not reversed the onus.  She properly directed herself to the onus of proof, she recorded the submissions of the parties in a way which showed a proper understanding of the onus of proof and she made positive findings.[26]  Taken in context, the Industrial Commissioner was not, in paragraph [107], expressing her conclusions in a way that ought to be regarded as sensitive to the existence of the onus of proof.
  4. [34]
    Ground 1 is not made out.

Grounds 2, 3 and 4 and the contention:  Error in making ultimate finding in the absence of evidence; error in drawing inference; error in ignoring probative evidence of Dr Ng;[27] the QIRC should have found relevant partial incapacity[28]

  1. [35]
    These grounds of appeal are inextricably bound up with each other and also with Mr Adcock’s point of contention which is stated in order number 1 of my orders of 20 October 2021.[29]  These three grounds and the point of contention ought to be considered together.
  2. [36]
    There were four doctors called to give evidence before the QIRC:
  1. Dr Anthony Grant.  He is Mr Adcock’s treating general practitioner.
  2. Dr Kar Loong Ng.  His is an occupational physician who was engaged by the Regulator and first saw Mr Adcock in early 2016.
  3. Dr Anthony Wilson.  He is an orthopaedic surgeon who examined Mr Adcock on 24 November 2017.
  4. Dr Dion Suyapto.  He is an occupational physician retained Mr Adcock.
  1. [37]
    As will become clear, the critical evidence in the judgment of the QIRC was the evidence of Dr Wilson.  The other evidence can be described quite briefly.
  2. [38]
    Dr Grant certified Mr Adcock unfit for work up to 26 August 2016.  That is the date from which the Regulator says Mr Adcock cannot prove that he was unfit for work and the date from which weekly compensation payments should cease.
  3. [39]
    Dr Grant’s view was that from 30 November 2015 to 26 August 2016 Mr Adcock could return to work but not to normal duties which he described as:

“Yes. And why is it, if you could just elaborate a bit more on that point, why you say he wasn’t fit to return to normal duties?---Because my understanding that the time was that he worked long hours - worked long shifts, and required to - to carry - I think the injury was - he was carrying 20 kilograms of goods, and he was required to carry goods, prepare meals and then - and then have prolonged standing - have prolonged periods of standing.

Yeah, that’s right, doctor. And I think the appellant’s evidence is that he was working 12 and up to 14-hour shifts in a mining camp?---Yeah, that was my understanding.

And so is your report then based upon those types of hours, or is it just based upon a normal eight-hour shift?---It- it was - it was based on those hours at the time.”[30]

  1. [40]
    Under cross-examination, Dr Grant confirmed his opinion as expressed in the WorkCover certificates:

“And then there was one certificate which was at page 12 of that bundle where you certified that Mr Adcock was temporarily unfit to continue his usual occupation and that was for a period of one week. And that suggest that for that one week you were - you certified that Mr Adcock was totally unfit for work for that period. Is that correct?---Correct.

And then we turn over the page, and there’s now a WorkCover certificate dated 30 November 15, and with the following restrictions:

Fit to return to modified or other duties, with the following restrictions: return-to-work plan as documented.

That’s correct?---Correct.

And then the similar notation is on each and every one of the medical certificates you’ve provided, which then covers the period up to the 23rd of June 2016. Sorry, covers the period up to the 26th of August 2016?---Correct.

So your view at that time was that at all times Mr Adcock was fit to return to some modified duties and that was to be in accordance with the return-to-work plan as from the 30th of November 2015. That’s correct? Doctor?---Sorry - I’m just - I’m just checking - - -”[31]

  1. [41]
    The evidence shows that Mr Adcock did not participate in the return to work plan.
  2. [42]
    Dr Ng examined Mr Adcock on 24 February 2016 and 9 November 2017.  He prepared three reports:  24 February 2016,[32] 18 April 2016[33] and 10 November 2017.[34]
  3. [43]
    Dr Ng’s evidence was that:
  1. as at 24 February 2016, Mr Adcock could have worked more than four hours a day, five days a week: and
  2. could potentially have worked his full hours if he had an opportunity of sitting to rest his ankle periodically.
  1. [44]
    An ultrasound scan of Mr Adcock’s ankle was performed on 17 March 2016.  That was not available to Dr Ng when he examined Mr Adcock on 24 February 2016 and he concluded that Mr Adcock could return to work on limited duties.  The ultrasound was available to Dr Ng by November 2017 and he noted that it showed arthritis and degeneration but no acute injury to the ankle.  He opined that his earlier view was too conservative given the scan and that had the scan been available earlier he would have reported, in February 2016, that Mr Adcock had the capacity to complete full hours if he had the ability to rest when required at the early stages of the return to work plan.
  2. [45]
    Dr Suyapto, like Dr Ng, is an occupational physician.[35]  He examined Mr Adcock on 3 September 2020, some four and a half years after Dr Ng’s first examination.  He reported on ongoing partial incapacity.[36]  Under cross-examination, he deferred to the opinion of Dr Ng.[37]
  3. [46]
    Dr Wilson, as already observed, is an orthopaedic surgeon.  He examined Mr Adcock on 24 November 2017.[38]
  4. [47]
    Dr Wilson assessed capacity as at 24 November 2017.  In his report, he opined that any incapacity had resolved by that time.
  5. [48]
    Dr Wilson was cross-examined as to the possibility of a partial incapacity.  This exchange occurred:

“Yeah. I guess, the question to you is - on the 24th of November of 2017 when you assess him, was there a partial incapacity to work those type of hours?---Look, I didn’t really think so. No. I think - I think that his function was good enough that he could have done those hours, but I felt that maybe some restrictions may be required, especially, you know, he wouldn’t be too keen to sustain the same injury. So you know, he’d avoid circumstances where he carries 25 kilograms of bacon in a - you know, in a - down some steps, for example. But generally, I’ve thought he would have been capable of working as a chef provided that there was some consideration given to - given to his circumstances which suggest that he had an ankle injury which was ongoing. And I think there’s a psychological circumstance whereby, you know, if he was given 25 kilograms of bacon and asked to walk down the steps, I think that would - that would not be a lot of fun. And he may - may not be too happy to do that. So that sort of circumstance, definitely I would be avoiding. So then I would avoid uneven ground, I would probably avoid circumstances where the mat - where the floor is uneven or slippery. But most of those things I think probably can be covered within reason in a - in work as a chef.”[39]

  1. [49]
    The exchange which follows shows the real thrust of Mr Adcock’s case:

“But it’s your opinion, Doctor, that he would need to at least disclose that to his employer - that those sort of precautions need to be taken into account?---Yeah. I mean, I guess so, yeah. I mean, if he’s applying for a job and he’s got a minor problem with his ankle, then he may mention that to his employer and just say look, I - there’s a couple of things that I’m not too good with, but mostly I’m pretty good. And the injury was over two years ago - two years from when I saw him.”[40]

  1. [50]
    The suggestion of a partial incapacity was rejected by Dr Wilson:

“Yep. But in respect of what you have mentioned in your report, Doctor, with the swelling, the rolling of the ankle, the instability, that there was still a significant component of that inability to work due to the action - the foot injury itself?---Well, no, no. I think really, I expected him to be able to work at an almost full level, with some considerations. I mean, we have discussed before that his pain went from nine down to three out of 10. So, you know, he wasn’t greatly suffering from this ankle injury anymore and if he was suffering significantly he would have entertained further treatment with a view to possible surgery.”[41]

  1. [51]
    Mr Adcock’s submissions are recorded in the judgment below as:

“[73] The Appellant submits that the medical evidence supports the proposition that the Appellant’s injury continues to incapacitate him for work, stating:

  • the Appellant disputes that his injury stopped on 26 August 2016 and says his injury continues to incapacitate him for work, at least partially to this day;
  • Dr Wilson stated that the Appellant could return to full time employment at least by 30 November 2017. The 30 November 2017 date is important as that is the date the Respondent’s own expert is suggesting the incapacity ends, not 26 August 2016. Remedial legislation gives the benefit to the worker and so 30 November 2017 would be the correct date all else being agreed; and
  • it is not accepted, however, that the incapacity ends on 30 November 2017 as the above restrictions would remain. Those restrictions would still reduce the sale of the Appellant's labour on the open labour market.

[74] The Appellant notes Dr Wilson’s comments regarding future medical expenses, including:

  • that it would be reasonable to inject his left ankle with a steroid, which occurred approximately five months after Dr Wilson’s recommendation on 31 May 2018; and
  • Dr Wilson’s report dated 19 January 2018 suggesting that the Appellant has a 2% permanent impairment of the left ankle.

[75] The Appellant submits the following with respect to the Appellant’s working situation:

  • The Appellant was working long hours in the mines as a FIFO worker. He was required to work in the kitchen in a role that was labour intensive. It is not conceivable that he could go back to working those same or similar hours and shifts in the same or similar circumstances;
  • Mr Romano advised at the hearing that the company was winding up at around mid-2016 and so the Appellant with his accepted injury, would face the real prospect of having to sell his labour in the open labour market when he recovered (if at all) and it is clear, based on the medical evidence and evidence from the Appellant, that this was reduced, consistent with Arnotts;
  • the Respondent did not challenge the Appellant about the hours he worked, the duties he undertook as a cook, the pain he was in on a regular basis, the actual time he was on his feet when cooking for friends or the additional alcohol use related to the stress associated with the pain in his left ankle;
  • it was never put to the Appellant in cross-examination that his left ankle injury did not continue after 26 August 2016. While the Respondent’s defence in the statement of facts and contentions may alert the Commission to their legal argument, the rule in Browne v Dunn requires the cross-examiner to put their case to the Appellant. That was not done in this instance;
  • there remains a clear incapacity with respect to the Appellant on the basis that he was working up to 14 days, was standing for all that time, was also doing heavy lifting, labour intensive work outside of cooking duties and FIFO; and
  • the Appellant was at an age where selling his labour on the open labour market with an ongoing injury and a predominantly labour intensive skill set was and remains diminished.”
  1. [52]
    After reviewing the medical evidence[42] of Drs Grant, Ng and Suyapto, the Industrial Commissioner observed:

“[91] In consideration of the medical evidence, I afford greater weight to the opinion of Dr Wilson due to his specialist training and experience as an orthopaedic surgeon particularly focussed on foot and ankle treatment. Dr Wilson indicated that he would have expected the incapacity to have ceased 16 to 20 weeks after the injury occurred. However, this was not as a result of an assessment of the Appellant at the time, and as such I place greater weight on Dr Wilson’s more conclusive opinion that by the 30 November 2017, the incapacity had ceased.

[92] Dr Wilson gave the following evidence:

Mr Wright: I guess, the question to you is – on the 24th of November of 2017 when you assessed him, was there a partial incapacity to work those type of hours?

Dr Wilson: Look, I didn’t really think so. No. I think – I think that his function was good enough that he could have done those hours, but I felt that maybe some restrictions may be required, especially, you know, he wouldn’t be too keen to sustain the same injury.” (emphasis added)

  1. [53]
    That then led to what might be regarded as a problematic finding:

“[93] Dr Wilson’s opinion that the incapacity had ceased by 30 November 2017 is broadly consistent with the opinion of Dr Ng, who stated that as of 10 November 2017, the incapacity for work had ceased. Dr Grant also considered that by 12 October 2017, the Appellant was fit for modified duties with the only modification recommended being increased rest breaks if he returned to his previous role. Fitness for ‘modified duties’ in these circumstances does not mean that the Appellant has an ongoing incapacity. Allowing for modifications in the form of occasional rests, the use of orthotics and lifting restrictions to prevent further injury would not normally render a worker incapacitated as these modifications can occur within a range of usual job requirements. Similar restrictions recommended by Dr Wilson were largely concerned with preventing the likelihood of a recurrent injury.” (emphasis added)

  1. [54]
    At paragraph [93], there is a finding the effect of which is that Mr Adcock was not incapacitated in the sense under consideration once he was fit for modified duties.  All the evidence (except Dr Wilson’s) was to the effect that Mr Adcock was fit to return to modified duties as of 26 August 2016:
  1. Dr Ng said so;[43]
  2. Dr Grant said so;[44]
  3. Dr Suyapto agreed with Dr Ng.
  1. [55]
    Dr Wilson did not give evidence that Mr Adcock was incapacitated up to November 2017.
  2. [56]
    Subject to consideration of the notice of contention, the Regulator has made out its appeal.  Accepting that a capacity to return to only modified duties is not, in the circumstances of this case, incapacity for the purposes of the Workers’ Compensation Act, the incapacity has ceased sometime before 26 August 2016.
  3. [57]
    The real issue on the appeal is whether the Industrial Commissioner’s finding at paragraph [93], that the partial incapacity does not amount to incapacity, withstands challenge from Mr Adcock on his point of contention.
  4. [58]
    The question of physical capacity, or otherwise, to perform tasks is a matter of fact which, in cases such as this, is almost invariably determined on expert medical opinion evidence.  Whether a worker is incapacitated in the sense used in the Workers’ Compensation Act involves a broader consideration.  It involves a consideration of the impact of any physical restrictions upon the marketability of the worker’s labour.[45]
  5. [59]
    Despite the passage set out at paragraph [50] of these reasons, Mr Adcock relies on the evidence of Dr Wilson.  He is right to do that.  The Industrial Commissioner had the benefit of seeing and hearing the various medical witnesses,[46] and preferred Dr Wilson.
  6. [60]
    The Industrial Commissioner did not accept Mr Adcock’s evidence that he could only perform basic domestic tasks with constant pain.[47]  Again, in assessing Mr Adcock, the Industrial Commissioner enjoyed an advantage over the Court in that she saw and heard him give evidence.
  7. [61]
    The Industrial Commissioner found that the relevant restrictions identified by Dr Wilson were:
  1. Mr Adcock required occasional rests;
  2. he needed to use orthotics; and
  3. there were lifting restrictions.
  1. [62]
    In a comprehensive list of references to relevant evidence,[48] Mr Adcock identified several restrictions identified by Dr Wilson which do not fit within the categories identified by the Industrial Commissioner.  They include:
  1. There is ongoing pain and swelling in Mr Adcock’s ankle.
  2. Mr Adcock’s ankle occasionally rolls.
  3. There is instability in the ankle when standing on uneven ground.
  4. No climbing is possible, including onto ladders or steps.
  5. No manoeuvring in tight places is possible.
  1. [63]
    Although aspects of Mr Adcock’s evidence were rejected, he was not challenged in his evidence that:
  1. his last white collar work was in a bank in 1994, some 23 years before Dr Wilson’s examination of him;
  2. from 1994, he has undertaken manual, outdoor work;
  3. since 2005, he has been employed as a cook.
  1. [64]
    It is common ground that Mr Adcock’s last employer is now not in business.  The question is as to Mr Adcock’s worth in the open market.[49]
  2. [65]
    While Dr Wilson opined that Mr Adcock could return to white collar work, his last answer in cross-examination was:

“Yeah, certainly.  And paragraph 8, you say - and again I apologise, Doctor, I know I’ve asked you this question, it’s just - it’s a slightly different question. But, you’ve stated here that Mr Adcock was capable of returning to fulltime employment by at least 30 November of 2017. I take that to mean, given your evidence this morning, is that he would have been able to undertake fulltime duties but with restrictions?---Yes. So from my recollection, he - I did mention that he’s working under capacity, so he’s done white-collar work as well as chef work and so, that’s what I’m saying. He could return could return to white-collar work - to office work or similar and probably possibly even before that time for white-collar work, just - but if he was going to be a chef and the ground was uneven or something like that then he would need that extra time.”[50] (emphasis added)

  1. [66]
    In Arnotts Snack Products Pty Ltd v Yacob,[51] with reference to Thompson v Armstrong & Royse Pty Ltd,[52] the test was expressed in this way:

“Fullagar J said (81 CLR at 613): ‘'A man is totally incapacitated for work when he is, by reason of his injury, physically unable to work. The words in their natural and primary sense mean that. When their meaning has been expounded by reference to inability to earn wages, the purpose has been to make the meaning more specific, and the result has been to extend rather than restrict the meaning.’

The same point was made, though less directly, by Kitto J who remarked (81 CLR at 621): ‘Loss of wages is in most cases a result of, but it does not itself constitute, the relevant economic fact. That fact is the inability, or the reduced ability, by reason of a physical deficiency, to sell work for wages.’ See also McTiernan J (81 CLR at 602-3).

The judgments in Thompson were discussed by Jacobs J (with whom Gibbs, Stephen and Aickin JJ agreed) in Commonwealth v Muratore (1978) 22 ALR 176 at 179-80; 141 CLR 296 at 300-1, which related to the Compensation (Commonwealth Government Employees) Act 1971 (Cth). His Honour said (at (ALR) 179; (CLR) 300): ‘It has always been recognized that ‘incapacity for work’, those words being taken to refer to physical incapacity, is only relevant where it produces an economic incapacity.’ He was speaking, as the passage at the foot of p 301 makes plain, of compensable incapacity for work, so that the employee’s incapacity is: ‘... measured by the extent that the amount per week that he is able to earn in some suitable employment or business is less than his average weekly earnings before his injury.’”[53]

  1. [67]
    The evidence was that, in the decade before his accident, Mr Adcock had only worked as a cook and had only performed outdoor work for over two decades before the accident.  His only reasonable prospect of employment was as a cook and he was restricted in that way because he could not stand for long periods, he could not stand on uneven ground, climbing ladders and stairs could not be achieved, manoeuvring in tight positions like food store rooms was difficult and there is general instability and pain in his ankle.
  2. [68]
    In my view, those restrictions reduced his physical capacity diminishing his ability to earn wages in a work environment suitable to him.
  3. [69]
    The Industrial Commissioner ought to have found, based on the expert evidence of Dr Wilson which she accepted, that Mr Adcock was relevantly incapacitated as at 30 November 2017.  Mr Adcock therefore succeeds on his contention and the fact that the Regulator succeeded in its grounds of appeal does not alter the result in the QIRC. 
  4. [70]
    The appeal should be dismissed.

Conclusions and orders

  1. [71]
    The appeal must be dismissed.  Directions should be given for the determination of issues of costs.
  2. [72]
    It is ordered that:
  1. The appeal is dismissed.
  2. The respondent file and serve upon the appellant by 3 June 2022 any written submissions on the costs of the appeal.
  3. The appellant file and serve upon the respondent by 10 June 2022 any written submissions on the costs of the appeal.
  4. The respondent file and serve upon the appellant by 17 June 2022 any submissions in reply on the costs of the appeal.
  5. The parties have leave to file and serve by 1 July 2022 any application for leave to make oral submissions on the costs of the appeal.
  6. In the absence of any application to make oral submissions on the costs of the appeal being filed by 1 July 2022, the question of costs will be decided on any written submissions filed without further oral hearing.

Footnotes

[1] Adcock v Workers’ Compensation Regulator [2021] QIRC 227.

[2] Adcock v Workers’ Compensation Regulator [2021] QIRC 227 at [3]-[7] and see Adcock v Workers’ Compensation Regulator [2017] QIRC 086.

[3] Workers’ Compensation and Rehabilitation Act 2003, s 144.

[4] Workers’ Compensation and Rehabilitation Act 2003, s 144B.

[5]  A reference to Mr Adcock.

[6] Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 177-178.

[7] Industrial Relations Act 2016, s 557.

[8]  Order number 4.

[9]  See the heading “Introduction”:  paragraphs [1]-[7].

[10]  Under the heading “Background”:  paragraph [8].

[11]  Mr Adcock.

[12] Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301.

[13]  Under the heading “Legal framework”:  paragraphs [10]-[17].

[14]  Under the heading “Medical Evidence”:  paragraphs [18]-[55].

[15]  Paragraphs [56]-[71].

[16]  Paragraphs [72]-[80].

[17] Adcock v Workers’ Compensation Regulator [2021] QIRC 227.

[18]  The incapacity.

[19]  Written submissions filed on 2 August 2021 at [35].

[20]  (1987) 10 NSWLR 247.

[21]  (2018) 266 CLR 1 at [33].

[22]  At 259.

[23]  At [33].

[24] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.

[25] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443.

[26]  Paragraph [98].

[27]  Grounds 2, 3 and 4.

[28]  Mr Adcock’s contention.

[29]  Set out at paragraph [11] of these reasons.

[30]  T 1-53, l 42 to T 1-54, l 6.

[31]  T 1-57, ll 9-30.

[32]  Exhibit 13.

[33]  Exhibit 14.

[34]  Exhibit 16; these were perhaps more progress notes than reports.  There were also file notes of a conference which became exhibit 17.

[35]  Report 11 September 2020, exhibit 19 and report 22 October 2020, exhibit 20.

[36]  Exhibit 19, page 5; exhibit 20, page 1.

[37]  T 2-58, ll 19-40.

[38]  Report 30 November 2017 is exhibit 10; supplementary report 19 January 2018 is exhibit 11; and a file note 7 August 2019 is exhibit 12.

[39]  T 2-10, l 40 to T 2-11, l 9.

[40]  T 2-11, ll 10-15.

[41]  T 2-11, ll 34-42.

[42] Adcock v Workers’ Compensation Regulator [2021] QIRC 227 at [88]-[90].

[43]  See paragraph [43] of these reasons.

[44]  Paragraphs [39]-[40] of these reasons.

[45] Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 177-178.

[46] Fox v Percy (2003) 214 CLR 118 at [65], Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179, Greer v Greer [2021] QCA 143.

[47]  At [94].

[48]  The Respondent’s Submissions on Issues of Contention filed 15 November 2021.

[49] Colbran v Workers’ Compensation Board of Queensland (1996) 152 QGIG 1180.

[50]  T 2-15, ll 1-10.

[51]  (1985) 155 CLR 171.

[52]  (1950) 81 CLR 585.

[53]  At 177-178.

Close

Editorial Notes

  • Published Case Name:

    Workers' Compensation Regulator v Adcock

  • Shortened Case Name:

    Workers' Compensation Regulator v Adcock

  • MNC:

    [2022] ICQ 16

  • Court:

    ICQ

  • Judge(s):

    Davis J

  • Date:

    24 May 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abalos v Australian Postal Commission (1990) 171 CLR 167
2 citations
Jump To
Cite 1 - (1990) 171 CLR 167
Cite 2 - (1990) 171 CLR 167
Adcock v Workers' Compensation Regulator [2017] QIRC 86
2 citations
Jump To
Cite 1 - [2017] QIRC 86
Cite 2 - [2017] QIRC 86
Adcock v Workers' Compensation Regulator [2021] QIRC 227
5 citations
Jump To
Cite 1 - [2021] QIRC 227
Cite 2 - [2021] QIRC 227
Cite 3 - [2021] QIRC 227
Cite 4 - [2021] QIRC 227
Cite 5 - [2021] QIRC 227
Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171
4 citations
Jump To
Cite 1 - (1985) 155 CLR 171
Cite 2 - (1985) 155 CLR 171
Cite 3 - (1985) 155 CLR 171
Cite 4 - (1985) 155 CLR 171
Beale v Government Insurance Officer of New South Wales (NSW) (1997) 48 NSWLR 430
1 citation
Jump To
Cite 1 - (1997) 48 NSWLR 430
Colbran v Workers' Compensation Board of Queensland (1996) 152 QGIG 1180
2 citations
Jump To
Cite 1 - (1996) 152 QGIG 1180
Cite 2 - (1996) 152 QGIG 1180
Commonwealth v Muratore (1978) 22 ALR 176
1 citation
Jump To
Cite 1 - (1978) 22 ALR 176
Commonwealth v Muratore (1978) 141 CLR 296
1 citation
Jump To
Cite 1 - (1978) 141 CLR 296
DL v R (2018) 266 CLR 1
2 citations
Jump To
Cite 1 - (2018) 266 CLR 1
Cite 2 - (2018) 266 CLR 1
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Greer v Greer [2021] QCA 143
2 citations
Jump To
Cite 1 - [2021] QCA 143
Cite 2 - [2021] QCA 143
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
1 citation
Jump To
Cite 1 - (2006) 181 QGIG 301
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
4 citations
Jump To
Cite 1 - (1987) 10 NSWLR 247
Cite 2 - (1987) 10 NSWLR 247
Cite 3 - (1987) 10 NSWLR 247
Cite 4 - (1987) 10 NSWLR 247
Thompson v Armstrong & Royse Pty Ltd (1950) 81 CLR 585
1 citation
Jump To
Cite 1 - (1950) 81 CLR 585

Cases Citing

Case NameFull CitationFrequency
Adcock v Workers' Compensation Regulator [2025] ICQ 142 citations
Adcock v Workers' Compensation Regulator (No. 2) [2023] QIRC 2662 citations
Workers' Compensation Regulator v Adcock (No 2) [2022] ICQ 203 citations
1

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