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Burton v Workers' Compensation Regulator[2022] ICQ 17

Burton v Workers' Compensation Regulator[2022] ICQ 17

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Burton v Workers’ Compensation Regulator [2022] ICQ 017

PARTIES:

EVAN GILBERT BURTON

(appellant)

v

WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

C/2022/2

PROCEEDING:

Appeal

DELIVERED ON:

Order dismissing the appeal made on 8 June 2022, other orders made and reasons delivered on 17 June 2022

HEARING DATE:

8 June 2022

MEMBER:

Davis J, President

ORDER/S:

  1. Appeal dismissed.
  2. Any written submissions on costs by the respondent to be filed and served by 24 June 2022.
  3. Any written submissions on costs by the appellant to be filed and served by 1 July 2022.
  4. Any written reply on costs by the respondent to be filed and served by 8 July 2022.
  5. Both parties have liberty to apply by application filed on or before 22 July 2022 for leave to make oral submissions on costs.
  6. In the absence of any application for leave being filed by 22 July 2022, the question of costs will be decided on the written submissions without oral hearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – INFERENCE WITH JUDGE’S FINDINGS OF FACT – where the appellant made claim for workers’ compensation – where the Workers’ Compensation Regulator found no causal connection between the appellant’s injury and his work – where the appellant appealed to the Queensland Industrial Relations Commission (QIRC) – where the QIRC heard evidence from four doctors called by the appellant and one doctor called by the respondent – where the QIRC accepted the evidence of the doctor called by the respondent – where that doctor opined there was no causal connection between the appellant’s work and the appellant’s injury – where the QIRC dismissed the appeal – where the appellant appealed to the Industrial Court – where the appeal challenged the finding that there was no causal connection between the injury and the work – whether an error of law was established in the making of that finding of fact

Industrial Relations Act 2016, s 557, s 561, s 565, s 567

Workers’ Compensation and Rehabilitation Act 2003, s 5, s 32, s 34, s 35, s 561, s 567

CASES:

Aldrich v Ross [2001] 2 Qd R 235, cited

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, cited

Burton v Workers’ Compensation Regulator [2021] QIRC 437, related

Church v Blackwood (Workers’ Compensation Regulator) (2015) 252 IR 461, cited

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

Eastman v The Queen (2000) 203 CLR 1, cited

Fox v Percy (2003) 214 CLR 118, cited

Nutley v President, Industrial Court (2019) 1 QR 354, followed

Ribeiro v Workers’ Compensation Regulator [2019] QIRC 203, cited

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

Turnbull v Medical Board (NSW) [1976] 2 NSWLR 281, cited

APPEARANCES:

T Nielsen for the appellant instructed by Carter Capner Law

D Callaghan for the respondent instructed directly by the Regulator

  1. [1]
    Evan Gilbert Burton appealed from a decision of the Queensland Industrial Relations Commission (QIRC) which confirmed a decision of the Workers’ Compensation Regulator denying his claim for workers’ compensation.[1]
  2. [2]
    On 8 June 2022, the appeal was dismissed.  These are the reasons for the dismissal of the appeal.

Background

  1. [3]
    Mr Burton was employed by JJ Richards & Sons Ltd (JJ Richards) from 1991 to 2015.
  2. [4]
    In 1992, Mr Burton began an apprenticeship with JJ Richards in auto-electrics.  He qualified as an auto-electrician in 1996.  He then worked for JJ Richards as an auto-electrician in various workshops.
  3. [5]
    There is no doubt that Mr Burton suffers from cervical spondylosis. 
  4. [6]
    The Workers’ Compensation and Rehabilitation Act 2003 (Workers’ Compensation Act) establishes a scheme to provide benefits for workers who sustain an injury at work.[2]  There is no dispute that Mr Burton is a worker.  There is no doubt that cervical spondylosis is an injury and Mr Burton suffered it.  The issue before the QIRC was whether Mr Burton’s injury is one that is compensable under the legislation.
  5. [7]
    That falls to be determined, relevantly here, by reference to s 32 of the Workers’ Compensation Act.  As relevant, that section provides:

“32 Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
  1. (2)
    However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.[3]
  1. (3)
    Injury includes the following—
  1. (a)
    a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  1. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
  1. (i)
    a personal injury;
  1. (ii)
    a disease;
  1. (iii)
    a medical condition, if the condition becomes a personal injury or disease because of the aggravation; …
  1. (4)
    For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. …”
  1. [8]
    The Regulator determined that the cervical spondylosis suffered by Mr Burton was not an “injury” as defined by s 32 as there was no causal connection between the injury and Mr Burton’s work.  Mr Burton sought review of that decision.  That review was brought to the QIRC pursuant to s 549 of the Workers’ Compensation Act.  Such a review by the QIRC is not a genuine appeal from the Regulator’s decision but is a hearing de novo.[4]
  2. [9]
    The QIRC posed the following questions for itself on the hearing of the review:

“[9] The issues for my determination are:

  • did Mr Burton’s cervical spondylosis arise out of, or in the course of, his employment or did Mr Burton suffer an aggravation of his cervical spondylosis which arose out of, or in the course of, his employment? and, if so
  • was Mr Burton’s employment a significant contributing factor to his cervical spondylosis or to an aggravation of his cervical spondylosis?”[5]
  1. [10]
    Both these issues are factual ones.
  2. [11]
    In the QIRC, Mr Burton gave evidence himself and led evidence from two of his former co-workers, Mr Gregory McDermott and Mr Thomas Ferguson.  He called four doctors:  Dr Delaney, his general practitioner, and Drs Tomlinson, Campbell and Johnson, all neurosurgeons.  Dr Johnson has a particular specialty as a brain and spinal neurosurgeon.
  3. [12]
    The Regulator called two current employees of JJ Richards, Mr Ben Parsons and Mr Tony Ray.  It also called Dr Atkinson, a neurosurgeon and pain physician.
  4. [13]
    After analysing the evidence and holding that the onus of proof was upon Mr Burton, the QIRC held:

“[197] The questions in this appeal were whether Mr Burton’s employment with JJ Richards between 1992 and 2015 had a causal connection with his cervical spondylosis or an aggravation of his cervical spondylosis and whether his employment was a significant contributing factor to his cervical spondylosis or an aggravation of it.

[198] For the reasons given, I am not persuaded that Mr Burton has discharged the onus on him and I confirm the review decision of the Regulator.”

And ordered, relevantly:

“[200] I make the following orders:

  1. 1.Pursuant to s 558(1)(a) of the Workers’ Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 14 September 2017 is confirmed. …”[6]

The present appeal

  1. [14]
    The appeal to this Court is by force of s 561 of the Workers’ Compensation Act.  That relevantly provides:

“561 Appeal to industrial court

  1. (1)
    A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.
  1. (2)
    The Industrial Relations Act 2016 applies to the appeal.
  1. (3)
    The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
  1. (4)
    The court’s decision is final.”
  1. [15]
    By s 561(2) of the Workers’ Compensation Act, the Industrial Relations Act 2016 (IR Act) “applies to the appeal”.  Section 557 of the IR Act provides, relevantly:

“557 Appeal from commission

  1. (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—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (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—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction. …”
  1. [16]
    There is a potential tension between s 561(3) of the Workers’ Compensation Act and s 557 of the IR Act.  Usually an appeal “by way of rehearing” contemplates the appeal court making its own assessment of the evidence and drawing its own inferences, but acknowledging the advantage of the court or tribunal at first instance in hearing the witnesses give their evidence.[7]  An appeal based only on an error of law or excess or want of jurisdiction is a narrower appeal in that error must be shown upon the factual findings made below or some error of law must be shown in the fact finding below.[8]
  2. [17]
    Section 567 of the IR Act provides:

“567 Nature of appeal

  1. (1)
    An appeal to an industrial tribunal, other than a public service appeal to the commission, is by way of re-hearing on the record.
  1. (2)
    However, the industrial tribunal may hear evidence afresh or additional evidence if the industrial tribunal considers it appropriate to effectively dispose of the appeal.”
  1. [18]
    Section 567(1) refers to an “appeal by way of rehearing on the record” and s 567(2) provides for leave to be given to adduce further evidence.  Reading ss 557 and 567 together, it is clear that the term, “by way of re-hearing”[9] is not to be used in its usual sense.  The appeal is on the grounds of error of law or want of jurisdiction and that is determined by “re-hearing” in the sense that without leave, any error of law or want of jurisdiction must be identified on the record below.[10]  Section 561(3) of the Workers’ Compensation Act should be similarly construed.
  2. [19]
    Section 557(2) of the IR Act provides for an appeal on grounds other than error of law or excess or want of jurisdiction, but only by leave.  That leave may only be granted in limited circumstances.[11]  No application for leave has been made here.
  3. [20]
    Mr Burton’s application to appeal contained eight grounds, but only three were pressed, being grounds (2), (3) and (5).  They are:

“(2) The Deputy President erred in finding that the Appellant’s employment was not a significant contributing factor to his injury (or an aggravation thereof) in accordance with Section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

  1. (3)
    The Deputy President erred in finding that the Appellant’s injury (or an aggravation thereof) did not arise out of the course of his employment in accordance with Section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
  1. (5)
    The Deputy President erred in preferring Dr Atkinson’s opinion to the opinions expressed Drs Tomlinson, Delaney, Campbell and Johnson.”
  1. [21]
    Section 32 of the Workers’ Compensation Act defines “injury” as a personal injury “arising out of, or in the course of” employment (the first limb), or an aggravation of an injury where the aggravation “arises out of, or in the course of” employment (the second limb).
  2. [22]
    On the hearing of the appeal, Mr Nielson, for Mr Burton, accepted that no error could be identified in the Deputy President’s finding that the first limb was not established.  The complaint on appeal is that the QIRC ought to have found that the second limb was made out.
  3. [23]
    Grounds (2) and (3) of the application to appeal should be understood only as applying to the failure to find an aggravation of injury.  Ground (5) should be understood to relate only to the opinions of the various doctors on the question of aggravation of injury.
  4. [24]
    In both Mr Burton’s written and oral submissions, ground (5) was pressed, and grounds (2) and (3) were not separately argued.  Mr Burton’s point on appeal was that the opinions of the doctors he called to give evidence should have been preferred to the opinion of Dr Atkinson.  If that was made out, ground (5) would succeed and grounds (2) and (3) would follow.

Consideration

  1. [25]
    Mr Burton’s appeal faced significant difficulty.  As earlier observed, the issues posed and answered by the QIRC were factual ones.  There was no issue below as to the construction of s 32 of the Workers’ Compensation Act or any other provisions.  The only issue was as to the causal connection between the injury (or its exacerbation) and Mr Burton’s work.
  2. [26]
    Grounds of appeal (2), (3) and (5) do not on their face identify any error of law.  Grounds (2) and (3) allege error in finding that Mr Burton’s work was not a contributing factor or aggravation of the injury and ground (5) alleges an error in preferring the opinion of one doctor over another.
  3. [27]
    Mr Burton, in his submissions, submits that the factual errors were the result of misapplication of legal principles in the assessment of the medical evidence.  This submission is founded in Ribeiro v Workers’ Compensation Regulator.[12]  There, the Deputy President analysed the authorities relevant to the assessment of medical evidence.  Several of the principles there identified are said to be relevant here but were neither mentioned nor applied by the QIRC.[13]  They are:
  1. “[45]
    A medical doctor’s appreciation of the legal aspects of a case, if relevant, is of no probative value. …
  1. [47]
    A finding of a causal connection may be open even if there is no medical evidence to support it.
  1. [48]
    Where medical science is prepared to say it is possible there is such a causal connection, then the tribunal, after examining the lay evidence, may decide that it is probable there is such a connection.
  1. [49]
    It is only where the medical evidence denies any causal connection between an event and an injury, that a tribunal cannot act on its own intuitive reasoning as if there was such a connection. …
  1. [52]
    Other guiding considerations include the expert’s qualifications, impressiveness and cogency of reasoning and exposition (not always a decisive ground), preparation for and application to the problem in hand, and the extent to which the witness had a correct grasp of the basic, objective facts relevant to the problem. …
  1. [54]
    Questions of credit and credibility are applicable in the evaluation of an expert's evidence in that, sometimes, expert witnesses display signs of partisanship in the witness box or lack objectivity or refuse to make proper concessions to the viewpoint of the other side.
  1. [55]
    Finally, demeanour in the witness box is usually of little importance in resolving conflicts between well-qualified medical experts.”
  1. [28]
    It is submitted, on Mr Burton’s behalf, that the Deputy President has not referred to various pieces of evidence and considerations.  In particular, he has not at least expressly considered those principles discussed in Ribeiro which are listed in paragraph [27] of these reasons. 
  2. [29]
    In DL v The Queen,[14] the High Court observed as to the adequacy of reasons:

“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’. 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.”[15]

  1. [30]
    In making those observations, the High Court followed the judgment of Kirby P (as his Honour then was) in dissent in the result in Soulemezis v Dudley (Holdings) Pty Ltd,[16] where his Honour said:

“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.”[17]

  1. [31]
    The reasons of the QIRC here, when viewed fairly and sensibly, show a completely conventional approach.  As the evidence unfolded in the QIRC, the real issue became whether Mr Burton’s injury was exacerbated by posture which he adopted at work, or whether the injury was caused or exacerbated by other activity such as a variety of sporting and leisure pursuits which Mr Burton undertook.
  2. [32]
    The complaint made by Mr Burton on appeal is as to the QIRC’s findings concerning the medical evidence.  The contested opinions of each of the four doctors called by Mr Burton was to the effect that Mr Burton’s employment aggravated the injury.  Of course, the QIRC made other factual findings which were relevant to the medical opinions which were expressed.
  3. [33]
    At paragraphs [101]-[106] of the judgment, the Deputy President summarised the evidence of Dr Delaney.  At paragraphs [180]-[182] of the judgment, the Deputy President considered the evidence of Dr Delaney and rejected his opinion that Mr Burton’s employment aggravated his cervical spondylosis.  He did so because:
  1. Dr Delaney’s opinion was that it was not a matter of science, but simply a deduction that in the absence of any obvious mechanism of injury, Mr Burton’s work must be an aggravating factor; which
  2. caused the Deputy President to be cautious about accepting Dr Delaney’s evidence; and
  3. Dr Delaney, in his reports, otherwise did not consider alternative mechanisms; but
  4. Dr Delaney thought that physical exercise being done by Mr Burton may have been an aggravating factor but thought the work was “the most likely explanation”; so
  5. Dr Delaney’s evidence then supported the proposition that the other physical activity may have contributed to the injury.
  1. [34]
    At paragraphs [107]-[111] of the judgment, the Deputy President summarised the evidence of Dr Tomlinson.  At paragraphs [183]-[184], the Deputy President considered the evidence of Dr Tomlinson and found that:
  1. Dr Tomlinson’s opinion was based upon his understanding of Mr Burton’s work practices while working at a work bench;
  2. the factual findings made by the Deputy President were different to Dr Tomlinson’s understandings.
  1. [35]
    Dr Johnson’s evidence was summarised by the Deputy President at paragraphs [112]-[120].  That evidence was considered at paragraph [185].  Again, the Deputy President found that the work practices actually followed by Mr Burton were different to the assumptions of Dr Johnson.
  2. [36]
    Dr Campbell’s evidence was summarised by the Deputy President at paragraphs [121]-[125] of the judgment.  That evidence was analysed at paragraphs [186]-[188].  The Deputy President found that:
  1. Dr Campbell’s opinions were based on assumptions different to the facts found;
  2. Dr Campbell accepted that other external contributors may have contributed to the injury;[18] and
  3. therefore, Dr Campbell’s opinion only established that “it is a possibility that Mr Burton’s work aggravated his cervical spondylosis”.
  1. [37]
    Dr Atkinson’s evidence was summarised at paragraphs [126]-[137] of the judgment.  That evidence was that Mr Burton’s employment with JJ Richards was not a significant contributing factor to the injury and did not aggravate it.  Dr Atkinson’s evidence was analysed at paragraphs [189]-[191] and was preferred over that of the other doctors.  It is necessary to descend to an analysis of some aspects of Dr Atkinson’s evidence and I will return to that later.
  2. [38]
    Mr Burton criticises the Deputy President’s findings at paragraph [191] which is the paragraph in the judgment were the reasons for acceptance of Dr Atkinson’s evidence are given.  Paragraph [191] is:

“[191] I am of the opinion that Dr Atkinson’s evidence is more persuasive. On my reading of the three articles to which Dr Atkinson’s attention was drawn, his criticisms about those articles are valid. The first article was about an individual study about a person using an iPhone. The second article was equivocal in relation to the connection between a person bending the neck and neck pain. The third article was equivocal in relation to the relationship between neck rotation and neck pain. The AMA Guides suggested that neck flexion and rotation were not statistically significantly associated with neck pain. Dr Atkinson’s opinion was that Mr Burton’s history of intermittent neck pain from 2012, until it worsened after doing chin-ups in 2015, was typical of cervical spondylosis. Mr Burton was a kayaker doing that activity five to seven times per year after 2011 and, at least from 2008, he was a rock climber. Dr Atkinson’s opinion was that he was inclined to the view that the sporting activities Mr Burton was doing were more likely to cause an aggravation of cervical spondylosis.”

  1. [39]
    The first criticism of that paragraph is:
  1. “(a)
    To the extent that the Decision says, “the AMA Guides suggested that neck flexion and rotation were not statistically significantly associated with neck pain” ignores a statement to the contrary at exhibit 16 - the Table 8-2 at page 188.”[19]
  1. [40]
    Exhibit 16 before the QIRC is the AMA Guides.  It contains both text and tables.  It states:

“Sedentary Work, Repetitive Work, and Precision Work

Ariens noted that several literature reviews considered work-related physical risk factors for the development of neck pain with some inconsistencies related to study design. However, there seemed to be a consensus that static postures, neck flexion, repetitive arm use, and sitting were potentially the main physical risk factors. Neck flexion and rotation were not statistically significantly associated with neck pain, even for longer periods of time. Work with hands above the shoulders was not associated with either incidence or recurrence of neck pain in the study of nursing-home and elderly-care workers by Luime.

Prolonged work in a sedentary position, including use of a mouse or keyboard, had a dose-related association with neck pain in 2 studies. Those who worked in a sitting position for more than 95% of the time were at a statistically significant risk for increased neck pain with a RR of 2.34 (95% CI 1.05-5.21) in the Ariens study. Work with a mouse more than 30 hours per week was also statistically significantly associated with neck pain in 1 study, although the same association was not noted with keyboard use. The authors noted that their data did not support a threshold above which an increasing effect could be anticipated. Jensen found no association between work time or using a mouse, and Luime found only a weak relationship between prolonged work in the same position and the onset of neck pain but not the recurrence. In 3 other studies, no significant association was identified for repetitive work or with use of a mouse.

There is insufficient evidence for neck posture, prolonged work in a sedentary position, or repetitive and precision work as risk factors for neck pain (Table 8-2).”

  1. [41]
    The last part of that passage refers to Table 8-2 which is the table referred to in Mr Burton’s first complaint about paragraph [191] of the judgment.  Relevantly, Table 8-2 is:

Neck Posture

   

Neck flexion >20°

<60% of the time

60-70% of the time

>70% of time

RR

1.0

1.21 (0.58-1.97)

1.63 (0.70-3.82)

Ariens GA, Bongers PM, Douwes M, et al. Are neck flexion, neck rotation, sitting at work risk factors for neck pain? Results of a prospective cohort study. Occup Environ Med 2001: 58(3):200-207

Prospective cohort with results of the Bone and Joint Decade Task Force reported that neck flexion more than 45° more than 70% of the time increased workers’ risk of development neck pain; however, the risk ratio remained less than 2.0

Neck flexion >45°

<5% of the time

5-10% of the time

>10% of the time

RR

1.0

1.27 (0.81-1.97)

1.16 (0.62-2.17)

Ariens GA, Bongers PM, Douwes M, et al. Are neck flexion, neck rotation, sitting at work risk factors for neck pain? Results of a prospective cohort study. Occup Environ Med 2001: 58(3):200-207

‘No clear relationship was found between neck rotation and neck pain in the scientific literature’

Neck rotation >45°

<25% time

25-30% time

>30% time

RR

1.0

1.40 (0.81-2.43)

0.98 (0.42-2.26)

Ariens GA, Bongers PM, Douwes M, et al. Are neck flexion, neck rotation, sitting at work risk factors for neck pain? Results of a prospective cohort study. Occup Environ Med 2001: 58(3):200-207

 
  1. [42]
    What is put by Mr Burton is that Ariens, Bongers, Douwes et al, found that neck flexion more than 45 degrees more than 70 per cent of the time caused neck pain.  However, that comment in Table 8-2 has to be looked at in light of the following:
  1. The comment is qualified by reference to the statement “… the risk ratio remained less than 2.0”.
  2. While there is no specific explanation of what a “risk ratio less than 2.0” means, Table 8-2 is cited in support of the proposition that “there is insufficient evidence for neck posture, prolonged work in a sedentary position or repetitive and precision work as risk factors”.  Table 8-2 was not therefore considered to be contrary to the text.
  1. [43]
    Mr Burton’s first complaint about paragraph [191] of the judgment has no substance.
  2. [44]
    The second complaint is:
  1. “(b)
    The Deputy President failed to acknowledge that the article by Ariens et al concluded a positive connection between neck flexion and neck pain in certain work environments, namely those set out in the top of Table 8-2 reproduced above.”[20]
  1. [45]
    What the Deputy President did hold in paragraph [191] of the judgment was, “The AMA Guides suggested that neck flexion and rotation were not statistically significantly associated with neck pain”.  That in fact is the finding made by Ariens, Bongers and Douwes.[21]  There is no substance in Mr Burton’s second complaint.
  2. [46]
    Mr Burton’s third complaint is:
  1. “(c)
    The Deputy President correctly concluded that the article did not find a positive relationship between neck rotation [my emphasis] and neck pain, but that was irrelevant as Dr Atkinson acknowledged at T 4-4.25.”[22]
  1. [47]
    It was common ground that neck rotation was irrelevant to Mr Burton’s case.  The Deputy President was making no findings about neck rotation.  He was simply recording what was stated in the third article.  There is no substance to Mr Burton’s third complaint.
  2. [48]
    Mr Burton’s fourth complaint is:
  1. “(d)
    The decision, at [191], refers to Dr Atkinson’s assessment of three articles and his rejection of the same in favour of the AMA Guides. However, Ariens et al was actually the basis of the passage Dr Atkinson adopted from the AMA Guides.”[23]
  1. [49]
    There is, in my view, nothing inconsistent or illogical with Dr Atkinson accepting a general statement made in the body of the AMA Guides without then accepting each and every article referenced in Table 8-2.  In his evidence, he was critical of that particular article.[24]  There is no substance in this criticism.
  2. [50]
    The last criticism of the findings at paragraph [191] is:
  1. “(e)
    The relevant period for considering neck pain was the events from 2012-2015, when there was evidence available that in fact the events in 2011 were key.”[25]
  1. [51]
    Dr Campbell, in his report, thought that the events in 2012 were key[26] and, in oral evidence, he corrected the reference to “2011”.[27]
  2. [52]
    This was put to Dr Atkinson.  The Deputy President referred to that evidence:

“[135] It was further put to Dr Atkinson that Mr Burton’s evidence, that for 10 months in 2011 he spent 80% to 90% of his work time at a bench, was consistent with Mr Burton, within six months, complaining of neck pain which led him to go to see his General Practitioner and physiotherapist. Dr Atkinson disagreed and referred to the fact that Mr Burton seemed like a very active sportsman, despite all of his pain, because of the sporting and physical activities undertaken by Mr Burton outside of work such as kayaking, rock climbing, golf and paddle boarding. Dr Atkinson opined that it was more likely that he could have injured his neck rock climbing or doing chin-ups rather than what he was doing at work. Again, Dr Atkinson stated that there were no workers, such as garment manufacturers, postal workers and cannery workers, who had their necks in a flexed position all day long, reporting frequent neck pain.”

  1. [53]
    The findings at [191] cannot be looked at in isolation.  Paragraph [135] explains the finding in [191].
  2. [54]
    It is not an error of law to prefer Dr Atkinson’s evidence.  There is no substance in this complaint.
  3. [55]
    Mr Burton made a series of other criticisms.  The first further criticism was:
  1. “(a)
    The decision does not consider the qualifications of any expert, other than Dr Atkinson.”[28]
  1. [56]
    There was no dispute as to the qualifications of any of the doctors who were called to give expert evidence.  The Deputy President recorded that Dr Delaney was a general practitioner, Drs Tomlinson, Campbell and Johnson were all neurosurgeons and that Dr Johnson was a “brain and spinal neurosurgeon”.[29]  Detailed reasons were given for preferring the evidence of Dr Atkinson to the others.[30]  Those reasons are clearly set out and are logical.  The failure to record further details of the qualifications of the experts is not an error of law and there is no substance in this first further criticism.
  2. [57]
    The second further criticism is:
  1. “(b)
    At [101], the decision did not record that Dr Delaney has 35 years experience as a general practitioner, with a particular interest in work injuries and workers’ compensation medicine. Further, it did not record that he regularly deals with certain large employers such as Woolworths, Aldi and Chiefs Australia.”[31]
  1. [58]
    This criticism has no substance for the same reason the first further criticism has no substance.
  2. [59]
    The third further criticism is:
  1. “(c)
    At [107], there is no recognition that Dr Tomlinson is a practising neurosurgeon.”[32]
  1. [60]
    As already observed, Dr Tomlinson’s status as a neurosurgeon is mentioned in the reasons.[33]  Otherwise, this criticism fails for the same reasons as the first further criticism fails.
  2. [61]
    The fourth further criticism is:
  1. “(d)
    At [112] of the decision, there is no recognition that Dr Johnson is a brain and spinal neurosurgeon.”[34]
  1. [62]
    Again, this is recognised in the judgment.[35]  Otherwise, this criticism fails for the same reason the first further criticism fails.
  2. [63]
    The fifth further criticism is:
  1. “(e)
    At [121], there is no recognition that Dr Campbell is a neurosurgeon.”[36]
  1. [64]
    As previously observed, Dr Campbell’s status as a neurosurgeon is mentioned in the judgment.[37]  This criticism fails for the same reason the first further criticism fails.
  2. [65]
    The sixth further criticism is:
  1. “(f)
    However, at [126], there is specific reference to Dr Atkinson’s qualifications and states that he is a neurosurgeon and has expertise in rehabilitation. It is uncertain what the relevance of that latter expertise is to the question of medical causation.”[38]
  1. [66]
    The obvious answer to this submission is that Dr Atkinson, in his report, says that he has expertise in rehabilitation.  The Deputy President’s decision to record that fact does not constitute an error of law.
  2. [67]
    The last complaint is:
  1. “(g)
    Dr Atkinson’s written evidence in chief was that there was no scientific literature going to the issues in this case. He then produced the AMA guidelines in his evidence, but was still quite dismissive of the literature. He did not give the impression of being prepared for the issue at hand or in the possession of all of the facts.”[39]
  1. [68]
    The “written evidence in chief” which is cited is a note of a telephone conference on 15 February 2019 with Dr Atkinson and lawyers representing the Regulator.  In that note, this is said:

“Dr Atkinson said he had not seen and did not believe there was any evidence-based scientific literature that showed that either ‘static flexion for prolonged periods’ or the type of work duties described by Mr Burton were a significant contributing factor to cervical spondylosis.”

  1. [69]
    Dr Atkinson referred to the AMA Guides which, in the text which I have set out, supports the statement.  As already observed, the reference in the AMA Guides to the Ariens study was considered by the authors of the AMA Guides to support the text.[40]
  2. [70]
    Dr Atkinson was critical of the Ariens study, but that hardly contradicts what appears in the memorandum and certainly does not expose an error of law in the Deputy President’s reasoning.
  3. [71]
    In the end, Mr Burton submitted that while the Ribeiro principles were identified, they were not applied.  Not all the Ribeiro principles can be applied to every piece of evidence.  It is not an error of law to fail to slavishly apply the principles to each and every consideration.  What is necessary is for the reasons for judgment to illuminate the QIRC’s reasons for preferring Dr Atkinson’s evidence.  The reasons do that and the findings are logical and solid.
  4. [72]
    None of the submissions raise any error of law or any determination or actions by the Deputy President in excess of jurisdiction.  The case was decided by the QIRC upon a consideration of the expert evidence.  For reasons carefully articulated in the judgment, the Deputy President preferred the evidence of Dr Atkinson over the evidence of the doctors called on behalf of Mr Burton.  The assessment of the expert evidence was the exercise that the Deputy President was called on to perform and no error of law in the undertaking of that exercise has been identified.
  5. [73]
    For those reasons, I dismissed the appeal.
  6. [74]
    At the hearing of the appeal, the parties agreed that I should make directions for written submissions on costs once the reasons were delivered.
  7. [75]
    In relation to costs, I make the following orders:
  1. Appeal dismissed.
  2. Any written submissions on costs by the respondent to be filed and served by 24 June 2022.
  3. Any written submissions on costs by the appellant to be filed and served by 1 July 2022.
  4. Any written reply on costs by the respondent to be filed and served by 8 July 2022.
  5. Both parties have liberty to apply by application filed on or before 22 July 2022 for leave to make oral submissions on costs.
  6. In the absence of any application for leave being filed by 22 July 2022, the question of costs will be decided on the written submissions without oral hearing.

Footnotes

[1] Burton v Workers’ Compensation Regulator [2021] QIRC 437.

[2]  Section 5(1).

[3]  Sections 34(2) and 35 have relevance where the injury was not sustained at a place of work.

[4] Church v Blackwood (Workers’ Compensation Regulator) (2015) 252 IR 461 at [27].

[5] Burton v Workers’ Compensation Regulator [2021] QIRC 437 at [9].

[6] Burton v Workers’ Compensation Regulator [2021] QIRC 437 at [197], [198] and [200].  Directions were also given for the exchange of written submissions on costs.

[7] Turnbull v Medical Board (NSW) [1976] 2 NSWLR 281 at 297, Aldrich v Ross [2001] 2 Qd R 235 and Fox v Percy (2003) 214 CLR 118.

[8] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-622 and Eastman v The Queen (2000) 203 CLR 1 at 40-41.

[9]  Which may have different meanings depending upon the particular statute; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620-621.

[10] Nutley v President, Industrial Court (2019) 1 QR 354 at [25]-[26].

[11] Industrial Relations Act 2016, s 565.

[12]  [2019] QIRC 203.

[13]  Other principles mentioned in Ribeiro v Workers’ Compensation Regulator are mentioned at first instance; Burton v Workers’ Compensation Regulator [2021] QIRC 437 at [144].

[14]  (2018) 266 CLR 1.

[15]  At [33].

[16]  (1987) 10 NSWLR 247.

[17]  At 259 and DL at [33].

[18]  And see T 3-7, ll 1-10.

[19]  Written submissions filed 3 February 2022.

[20]  Written submissions filed 3 February 2022.

[21]  See Table 8-2 to the AMA Guides which is Exhibit 16.

[22]  Written submissions filed 3 February 2022.

[23]  Written submissions filed 3 February 2022.

[24]  T 4-4 to T 4-5 and T 4-11.

[25]  Written submissions filed 3 February 2022.

[26]  Exhibit 10, page 118A, fourth last paragraph.

[27]  T 3-3.

[28]  Written submissions filed 3 February 2022.

[29] Burton v Workers’ Compensation Regulator [2021] QIRC 437 at [7].

[30] Burton v Workers’ Compensation Regulator [2021] QIRC 437 at [179]-[191].

[31]  Written submissions filed 3 February 2022.

[32]  Written submissions filed 3 February 2022.

[33]  At [7].

[34]  Written submissions filed 3 February 2022.

[35]  At [7].

[36]  Written submissions filed 3 February 2022.

[37]  At [7].

[38]  Written submissions filed 3 February 2022.

[39]  Written submissions filed 3 February 2022.

[40]  Paragraph [42] of these reasons.

Close

Editorial Notes

  • Published Case Name:

    Burton v Workers' Compensation Regulator

  • Shortened Case Name:

    Burton v Workers' Compensation Regulator

  • MNC:

    [2022] ICQ 17

  • Court:

    ICQ

  • Judge(s):

    Davis J, President

  • Date:

    17 Jun 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
Aldrich v Boulton[2001] 2 Qd R 235; [2000] QCA 501
2 citations
Jump To
Cite 1 - [2001] 2 Qd R 235
Cite 2 - [2001] 2 Qd R 235
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
3 citations
Jump To
Cite 1 - (1976) 135 CLR 616
Cite 2 - (1976) 135 CLR 616
Cite 3 - (1976) 135 CLR 616
Burton v Workers' Compensation Regulator [2021] QIRC 437
7 citations
Jump To
Cite 1 - [2021] QIRC 437
Cite 2 - [2021] QIRC 437
Cite 3 - [2021] QIRC 437
Cite 4 - [2021] QIRC 437
Cite 5 - [2021] QIRC 437
Cite 6 - [2021] QIRC 437
Cite 7 - [2021] QIRC 437
Church v Simon Blackwood (Workers' Compensation Regulator) (2015) 252 IR 461
2 citations
Jump To
Cite 1 - (2015) 252 IR 461
Cite 2 - (2015) 252 IR 461
DL v R (2018) 266 CLR 1
3 citations
Jump To
Cite 1 - (2018) 266 CLR 1
Cite 2 - (2018) 266 CLR 1
Cite 3 - (2018) 266 CLR 1
Eastman v The Queen (2000) 203 CLR 1
2 citations
Jump To
Cite 1 - (2000) 203 CLR 1
Cite 2 - (2000) 203 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
Nutley v President of the Industrial Court of Queensland(2019) 1 QR 354; [2019] QSC 167
2 citations
Jump To
Cite 1 - (2019) 1 QR 354
Cite 2 - (2019) 1 QR 354
Ribeiro v Workers' Compensation Regulator [2019] QIRC 203
2 citations
Jump To
Cite 1 - [2019] QIRC 203
Cite 2 - [2019] QIRC 203
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
2 citations
Jump To
Cite 1 - (1987) 10 NSWLR 247
Cite 2 - (1987) 10 NSWLR 247
Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281
2 citations
Jump To
Cite 1 - (1976) 2 NSWLR 281
Cite 2 - (1976) 2 NSWLR 281

Cases Citing

Case NameFull CitationFrequency
Burton v Workers' Compensation Regulator (No 2) [2022] ICQ 292 citations
Schlumberger Australia Pty Ltd v Workers' Compensation Regulator [2023] ICQ 72 citations
Shaw v Workers' Compensation Regulator [2022] ICQ 244 citations
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Neville Stretton [2023] ICQ 154 citations
Turay v Workers' Compensation Regulator [2023] ICQ 134 citations
Turay v Workers' Compensation Regulator (No 2) [2023] ICQ 192 citations
Workers' Compensation Regulator v Carr [2023] ICQ 12 citations
1

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