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Simon Blackwood (Workers' Compensation Regulator) v Sharples[2015] QIRC 139

Simon Blackwood (Workers' Compensation Regulator) v Sharples[2015] QIRC 139

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Simon Blackwood (Workers' Compensation Regulator) v Sharples [2015] QIRC 139

PARTIES:

Simon Blackwood (Workers' Compensation Regulator)

(Applicant)

v

Sharples, Kaye

(Respondent)

CASE NO:

WC/2015/207

PROCEEDING:

Application for an Order that the worker submit to a personal examination by a registered medical specialist

DELIVERED ON:

31 July 2015

HEARING DATES:

30 July 2015

MEMBER:

Industrial Commissioner Neate

ORDERS:

  1. 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 Bradley Ng at Currumbin Clinic, Suite 3, 37 Bilinga Street, Currumbin, at 1.30 pm on Monday 10 August 2015.
  1. Dr Ng 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:
  1. (a)
    to provide instructions to litigate her own appeal, give evidence-in-chief, and be cross-examined; or
  1. (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.
  1. As soon as practicable after that examination, Dr Ng 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.
  1. 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.
  1. If, without reasonable cause, Mrs Sharples does not attend the medical examination by Dr Ng 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.
  1. The parties' costs of this application are reserved to the Member hearing the appeal in 2015/WC000059.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Application by Workers' Compensation Regulator for order that the worker submit for medical examination - whether worker is medically fit to provide instructions to her agent to litigate her appeal - whether worker is medically fit to give evidence and be cross-examined - whether factors in s 556(1) of Workers' Compensation and Rehabilitation Act 2003 are satisfied - whether Commission should exercise its discretion to make an order 

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 556

Blackwood v Mana [2014] ICQ 027 (31 October 2014)

Darius Adair Carter AND Q-COMP (2007) 185 QGIG 245

APPEARANCES:

Mr C.J. Clark, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator)

Mr T. Sharples, representative of the Appellant

Decision

 Introduction

  1. [1]
    Kaye Leslie Sharples is a secondary school teacher.  She claims that:
  1. (a)
    she suffered a personal injury by way of a psychiatric or psychological disorder (namely a Major Depressive Order and Generalised Anxiety Disorder) or an aggravation of her injury;
  1. (b)
    the injury arose out of, or in the course of, her employment at Palm Beach Currumbin State High School; and
  1. (c)
    her employment was the major significant contributing factor to her injury, or the aggravation of the injury,

and hence that she is entitled to compensation under the Workers' Compensation and Rehabilitation Act 2003 ("the Act").

  1. [2]
    On 12 March 2015, Mrs Sharples lodged a Notice of Appeal with the Queensland Industrial Relations Commission ("the Commission") against a decision by Simon Blackwood (Workers' Compensation Regulator) ("the Regulator") rejecting her application for compensation.  That appeal is numbered WC/2015/59.  It is scheduled to be heard by the Commission for eight, or possibly 10, days commencing on 31 August 2015.  The Vice President of the Commission has issued, and has amended, directions orders in relation to steps to be taken by each of the parties before that hearing.
  1. [3]
    In her Notice of Appeal, Mrs Sharples stated that her representative is her husband, Terry Patrick Sharples. 
  1. [4]
    On 22 July 2015, an application was made to the Commission on behalf of the Regulator for an order under s 556 of the Act requiring Mrs Sharples to submit to a medical examination with a psychiatrist for the purpose of assessment and preparation of a medical report to advise the Commission if Mrs Sharples is medically fit:
  1. (a)
    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
  1. (b)
    to provide instruction to litigate her own appeal, give evidence-in-chief, and be cross-examined.
  1. [5]
    The Regulator's application for an order under s 556 of the Act is the only matter to be decided in the present proceedings. 
  1. [6]
    In response to the Directions Order dated 23 July 2015, Mr Sharples filed a written submission and supporting affidavit sworn on 28 July 2015.  He subsequently provided two medical certificates.

Background to the application

  1. [7]
    The events leading to, and said to provide the basis of, the Regulator's application for the order under s 556 are set out (together with 16 relevant documents) in the affidavit of Marisha Mees, a Senior Appeals Officer employed in the office of the Regulator who has the conduct and control of this matter on behalf of the Regulator.  It is not necessary to repeat all that information.  However, it is appropriate to summarise some of the events preceding the filing of the Regulator's application.
  1. [8]
    Mrs Sharples had a separate workers' compensation appeal before the Commission in relation to a different decision of the Regulator (WC/2014/244).  On 2 February 2015, Mr Sharples wrote to the Commission in relation to that matter advising, among other things, that his wife "is still currently under psychiatric care and would be unable to give evidence in the immediate future."  Dr Adem Cam, a consultant psychiatrist, issued a medical certificate dated 2 February 2015 in which he stated that Mrs Sharples was not fit to attend the hearing listed on 11 February 2015 "due to her psychiatric predicaments."  On 14 April 2015 the Commission granted Mrs Sharples leave to withdraw the application in relation to WC/2014/244.
  1. [9]
    On 26 March 2015, Ms Mees attended a call over held by Vice President Linnane.  According to Ms Mees's affidavit, Mrs Sharples was not in attendance but Mr Sharples attended and advised the Commission that his wife was not currently well but was hoping her condition would improve prior to the matter being heard, and he stated that she needed to be better as they were not able to continue with this financially.  A conference under s 552A of the Act was scheduled.  The Vice President directed that Mrs Sharples attend in person as this would give her an opportunity to see how she would cope. 
  1. [10]
    Mr Sharples disputes aspects of Ms Mees' statement in relation to the call over.  In particular, he states that:
  1. (a)
    he advised the Vice President that Mrs Sharples had suffered a work-related psychological injury from which she was recovering; and
  1. (b)
    the Vice President made no direction for Mrs Sharples to attend the s 552A conference.

(I note that s 552A(2) of the Act states: "The parties must attend the conference.")

  1. [11]
    In an email dated 23 April 2015 to the relevant Commissioner's associate, Mr Sharples stated that no directions were made for either himself or Mrs Sharples to attend the conference in person.  He advised that Mrs Sharples "currently suffers from a psychological injury" and that he would attend the conference in person on his wife's behalf.
  1. [12]
    Mr Harry Theodore, a clinical psychologist, signed the following statement dated 23 April 2015 which was addressed to the Commission:

"Mrs Sharples has attended 17 appointments since November 18, 2013.  She was referred by her GP for stress and anxiety and continues to receive regular treatment.

At Mrs Sharples' last appointment, she stated that she was to attend a conference at the Industrial Relations Commission.  Mrs Sharples psychological state continues to be fragile.  Attending this conference within a confrontational atmosphere, will be substantially detrimental to her psychological well-being.

I recommend that questioning by the commission be held privately and independently of confrontational circumstances."

  1. [13]
    In an email dated 24 April 2015, Mr Sharples advised the Commission that he would not be attending the conference later that day in person as planned as he would need to support his wife as her registered representative in the telephone conference.  He further advised that he had purchased a mobile phone with an external speaker system to aid clear communication, and that Mrs Sharples would be available during the conference to take questions from the Commissioner (if necessary) and would be fully able to hear all matters to be discussed and respond as required.
  1. [14]
    An extract from the transcript of the conference on 24 April 2015 records the following response of Mr Sharples to an enquiry from the Commissioner as to whether Mrs Sharples was not in a position to go through to a hearing:

"MR SHARPLES:  I think the true nature of the situation is she's recovering, and both the psychiatrist and psychologist are very hopeful that she'll reach a stage fairly rapidly over the next two months where she is."

  1. [15]
    Later in the conference, Mr Sharples stated:

"Kaye is not currently able to be put in any position that might risk her health.  They're extremely hopeful that she'll be able to deal with the hearing, and she is well aware of what that's going to be like, as they are, in approximately two months.  And we certainly want to see the matter moved forward without any delay."

On that estimate, it might have been thought and that Mrs Sharples would have recovered sufficiently by the end of June 2015.

  1. [16]
    On 19 May 2015, the Vice President issued a Further Directions Order which required the Appellant to file her list of witnesses by 3 July 2015.  The Commission's records indicated that the Appellant had not complied with this Direction.  On 10 July 2015, the Manager of the Vice President's Chambers sent an email to Mr Sharples requesting the list of witnesses as soon as possible but no later than 12 noon on Monday 13 July 2015, and sending amended Directions 6, 7, 8 and 9 of the Further Directions Order in relation to that list and other lists relevant to the hearing.  Mr Sharples was also advised that the matter was listed for mention on 15 July 2015, and attendance was compulsory, and failure to comply may attract unnecessary costs and risk of the hearing dates being vacated.
  1. [17]
    A Review Mention was held before the Vice President on 15 July 2015.  Mrs Sharples did not attend the mention.  Mr Sharples attended on his wife's behalf and advised that she had an appointment.  At the mention, the Regulator's representative advised of the Regulator's intention to make an application under s 556 of the Act.
  1. [18]
    Mr Sharples was also unwell in July 2015.  He provided three medical certificates certifying that he would be unfit for his appointment from 14 to 16 July 2015 (inclusive) as he was unwell, and that he was unfit for his normal work from 16 to 19 July 2015 (inclusive) and 20 to 22 July 2015 (inclusive).
  1. [19]
    In an email dated 21 July 2015, the Manager of the Vice President's Chambers advised Mr Sharples that he had an extension of time until 4.00 pm on 22 July 2015 to provide the amended list of witnesses and the amended statement of stressors (previously required by 17 July 2015).
  1. [20]
    In his email in reply on 21 July 2015, Mr Sharples said that he would do his best to comply, "but I have been extremely unwell and still am."  He advised that Mrs Sharples had an appointment to see Dr Can, her treating psychiatrist, on 27 July 2015.  He asked for an extension until 31 July 2015 "until a final report from Dr Can is available, which in part will deal with my wife's fitness to give evidence at the hearing.  The same request is made from Dr Pischeck-Simpson."  Mr Sharples also advised that all other reports would be supplied "as per the orders and the time table will be able to proceed as set down without any prejudice or delay."
  1. [21]
    In summary, the chronology of events since the appeal was lodged shows that:
  1. (a)
    because of her psychiatric condition, Mrs Sharples has been unable to participate in person in some key steps in the process leading to the hearing; and
  1. (b)
    extensions of time were sought and granted in relation to her compliance with particular orders for specified actions to be taken before the hearing of her appeal.
  1. [22]
    At hearing of the Regulator's application on 30 July 2015, Mr Sharples said that "everything is back on track" and any outstanding directions would be complied with.

Legal framework for dealing with the application

  1. [23]
    The Regulator's application is made, and must be decided, by reference to s 556 of the Act.  That section provides:

"556Additional medical evidence

  1. (1)
    This section applies if—
  1. (a)
    the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or
  1. (b)
    the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal.
  1. (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.
  1. (3)
    The appeal body may also, as the appeal body considers appropriate, make an order about—
  1. (a)
    the way, time and place of the examination; and
  1. (b)
    costs of the application for the order and of the examination.
  1. (4)
    An opinion formed on the examination must be given to the respondent and the respondent must make the opinion available to the appellant.
  1. (5)
    Subsection (6) applies if the claimant or worker—
  1. (a)
    fails, without reasonable excuse, to attend for the examination at the time and place ordered by the appeal body; or
  1. (b)
    having attended, refuses to be examined by a registered person; or
  1. (c)
    obstructs, or attempts to obstruct, the examination.
  1. (6)
    Any entitlement the claimant or worker may have to compensation is suspended until the claimant or worker undergoes the examination."
  1. [24]
    That section has been the subject of decisions of the Commission and Industrial Court.  Most of those cases involved applications for orders so that a party could be independently medically assessed in relation to the injury which was the subject of the appeal. 
  1. [25]
    In summary, having regard to the words of s 556 and decisions interpreting and applying s 556, it appears that:
  1. (a)
    before the Commission makes an order of the type sought by the Regulator, the Commission must be satisfied that either or both of the criteria in s 556(1) have been met;
  1. (b)
    even where either or both of those criteria are met, the Commission has a discretion about whether to make an order under s 556; and
  1. (c)
    when deciding how to exercise its discretionary power, the Commission will take into account factors relevant to the particular case.
  1. [26]
    The present application is different from most cases in that it concerns the capacity of the person making the appeal to either conduct the appeal proceedings or give instructions to her representative in relation to the conduct of those proceedings.
  1. [27]
    There might be a question about the scope of the phrase "the appeal" in each of paragraphs (a) and (b).  In particular, whether a criterion (or both criteria) must be relevant only to the subject of the appeal or whether that criterion (or those criteria) might be relevant to the conduct of the appeal (at least where the worker is the appellant).
  1. [28]
    In Darius Adair Carter AND Q-COMP,[1] Hall P considered whether the Commission should have exercised the power under s 556 to require the appellant to submit to a personal examination to establish his capacity to conduct the appeal.  Although it was not necessary to answer that question, Hall P wrote:

"As a matter of first impression, I should have thought that the power vested by s. 556 was a power to obtain more information about an alleged 'injury'.  In any event, the power at s. 556 is discretionary.  The suggestion that struggling self-represented litigants should be subjected to the humiliation of psychiatric examination by order of a court of record with limited statutory jurisdiction to which they have turned for redress, is quite Orwellian."[2]

Read in context, that passage does not prevent an application such as in this case from succeeding.  The final sentence in that paragraph referred to a self-represented appellant who had struggled in presenting his case adequately and had been criticised in relation to such things as inadequate presentation, exaggeration and elusiveness.  However, Hall P stated that those and other criticisms did not go to the appellant's capacity.

  1. [29]
    The current application, however, is only about the Appellant's capacity to present evidence and give instructions in relation to her appeal and, potentially, to litigate her appeal.  In my opinion, both her medical condition and the nature or extent of her incapacity are relevant to whether the Appellant can ensure that evidence and submissions in relation to her appeal are put adequately to the Commission.  Accordingly, her medical condition and the nature or extent of her injury or incapacity are "relevant to the appeal."

Regulator's submissions

  1. [30]
    The Regulator submits that s 556(1)(a) of the Act applies in the unusual, but not unique, circumstances of this case.  In support of the submission that Mrs Sharples submit to examination by an independent psychiatrist, the Regulator refers to the history of the proceedings set out in the affidavit of Ms Mees and, in particular, to Mrs Sharples' non-compliance with direction orders issued by the Vice President, and the late provision of her list of witnesses (dated 24 July 2015) and list of stressors (dated 23 July 2015).
  1. [31]
    In her affidavit, Ms Mees states that:
  1. (a)
    Mrs Sharples has encountered difficulties with being able to comply with directions made in this matter to date;
  1. (b)
    Mrs Sharples has not been physically in attendance at any mention, conference or call over so that she may get a feel for the environment and process involved;
  1. (c)
    to date, Mrs Sharples has not been well enough to be involved in her own litigation; and
  1. (d)
    Mr Sharples has indicated that they are hopeful that she will be well enough by the time the matter proceeds to a hearing commencing on 31 August 2015.
  1. [32]
    In his oral submissions, the Regulator's representative noted that the medical evidence submitted on behalf of Mrs Sharples (quoted below) was provided at short notice, contains little or no detail in relation to her history, and does not set out the basis for the opinions expressed.
  1. [33]
    The Regulator notes that the hearing is set down for approximately two weeks, and that numerous witnesses (18 for Mrs Sharples and 12 for the Regulator) are to be called.  There would be significant costs in time and money to the parties and the Commission if the hearing does not commence as scheduled and proceed as expeditiously as possible.
  1. [34]
    In essence, the reason for the Regulator's application is that it wants to be confident that the hearing will proceed on the dates scheduled and, in particular, that the hearing will not be delayed or disrupted because Mrs Sharples has any medical incapacity.
  1. [35]
    The Regulator provided the names of three psychiatrists who are available on various dates in August to conduct such an assessment and who apparently can complete a report on an urgent basis within a week of that assessment.

Appellant's submissions

  1. [36]
    The written submissions made on behalf of Mrs Sharples are to the effect that:
  1. (a)
    there is no credible evidence to support the Regulator's submission;
  1. (b)
    the Regulator's application is designed to put unnecessary pressure upon Mrs Sharples before the hearing;
  1. (c)
    the expert medical evidence relied upon by Mrs Sharples supports a finding that she is medically fit to litigate her case; and
  1. (d)
    the Regulator's application should be dismissed.
  1. [37]
    An affidavit of Mr Sharples sworn on 28 July 2015 was filed in support of those submissions.  In it he traversed many of the events referred to in the affidavit of Ms Mees.  As noted earlier, he took issue with some of her recollection of events.
  1. [38]
    Relevantly for present purposes, Mr Sharples deposed that Mrs Sharples has instructed him through the history of the primary matter from March 2004 and in relation to the current application.  According to Mr Sharples, she has been involved in every aspect of the many statements, responses and submissions made to WorkCover, the Regulator and the Commission.  He noted that many of these documents have been extremely detailed and have involved long hours and detailed work by Mrs Sharples as "only she knows the details."  He attached to his affidavit copies of some of the statements produced by Mrs Sharples,
  1. [39]
    In his oral submissions, Mr Sharples focused on the relatively short period between receiving the Regulator's application with associated documents and the date by which the response from Mrs Sharples was to be filed and served.  Despite having to deal with the application at short notice, Mrs Sharples was able to obtain medical statements which, Mr Sharples suggested, are short because they were prepared within a limited time frame.
  1. [40]
    Mr Sharples took issue with, or offered explanations in response to some of the Regulator's submissions about apparent breaches of orders and directions orders in relation to the appeal.  For example, he stated that the failure to comply with at least some directions by the due dates was as a consequence of his illness with the flu rather than Mrs Sharples' psychiatric condition.
  1. [41]
    On Mrs Sharples' behalf he continued to resist the application by the Regulator and indicated there was nothing to stop the hearing going ahead. 
  1. [42]
    In support of her submission, Mrs Sharples provided to the Commission recent written statements from her treating clinical psychologist, (Mr Theodore), her treating psychiatrist (Dr Can) and her general practitioner (Dr Edward Lyle).
  1. [43]
    In his statement dated 28 July 2015, Mr Theodore wrote:

"Mrs Sharples has attended psychological intervention on 24 occasions since her initial appointment in November 2013 until the last appointment June 26 2015.

At this last appointment I found Mrs Sharples to be medically fit to litigate her own appeal.

I also found her medically fit to provide instruction to litigate her own appeal and is medically fit to give evidence in chief and medically fit to be cross-examined."

  1. [44]
    In his statement dated 27 July 2015, Dr Can wrote:

"I am writing in response to Kaye's current mental state.

I have been seeing Kaye since the 28th January, 2014.  She was diagnosed with Major Depressive Disorder and Generalized Anxiety Disorder.  She has been treated with psycho pharmalogical treatment since then.  She is currently on [specified medication] on an as needed basis.

I last saw Kaye on the 27th July, 2015.  I certify that based on the latest mental state examination she is medically fit to litigate her own on appeal, is medically fit to give evidence in chief, is medically fit to be cross-examined, is medically fit to call her own witnesses and is medically fit to cross-examine those witnesses if necessary."

  1. [45]
    Dr Lyle's medical certificate dated 29 July 2015 states that Mrs Sharples has been a patient under his care since 4 November 2013.  It continues:

"I am of the opinion that she is medically fit to litigate her own appeal, medically fit to give evidence in chief, medically fit to be cross examined, medically fit to call her own witnesses and cross-examine those witnesses if necessary."

  1. [46]
    I have quoted most or all of each of the statements provided by medical practitioners to indicate not only their opinions but the absence of any references to information in support of those opinions.  That is not a criticism of any of the medical experts.  It is clear that each was asked by the Appellant to provide a statement or certificate at relatively short notice and in response to terms of the application made by the Regulator.  However, as Martin J wrote in a decision of the Industrial Court of Queensland:

"It is an uncontestable requirement that, for an expert opinion to be of any value, the facts upon which it is based must be proved by admissible evidence."[3]

  1. [47]
    None of the medical experts was called to give evidence in relation to the opinion expressed in their written statement.  With the agreement of the parties, Mrs Sharples gave evidence in response to questions from the Commission about what, if anything, she had told each doctor about the features and likely duration of the hearing of her appeal.  At Mr Sharples' request, the Commission also heard oral evidence from him in relation to one consultation with Mr Theodore, which Mr Sharples attended with Mrs Sharples.  Because the Regulator's application is being dealt with as a matter of priority, I do not have the benefit of transcript of their evidence.  However, the following is a summary of the key aspects of that evidence, some of it corroborated by or drawn from documents in evidence in relation to this application.
  1. [48]
    Dr Can: Mrs Sharples was referred to Dr Can in January 2014 and has been seeing him since that date.  Initially her visits were relatively frequent, on a fortnightly basis, but became less frequent to the stage where there was a gap of approximately two months between her most recent appointment on 27 July 2015 and her previous appointment.  Mrs Sharples said that her most recent appointment was for the purpose of a general review and lasted 30 minutes.  She told Dr Can that the purpose of the hearing before the Commission on 30 July 2015 was to ascertain whether she should be directed to undergo an independent psychiatric examination.  She did not talk to him about the hearing of her appeal due to commence on 31 August 2015. 
  1. [49]
    Mr Theodore: Mrs Sharples was referred to the Living Well practice in November 2013 and has been seeing Mr Theodore since then.  She has seen him on 24 occasions, most recently on 26 June 2015 for one hour.  The purpose of that consultation was to "see how she is travelling," and on that occasion she mentioned the hearing of her appeal but did not go into any detail about it. 
  1. [50]
    Mr Sharples gave evidence that he attended a consultation with Mr Theodore some weeks after the s 552A conference on 24 April 2015.  He was not sure of the date of that consultation.  Although he usually does not get involved in Mrs Sharples' consultations with Mr Theodore, Mr Sharples said he became involved after the conference so that Mr Theodore understood about the appeal proceedings.  According to Mr Sharples, he alerted Mr Theodore to the extent of the likely cross-examination of Mrs Sharples, the difficulties being faced by her, technicalities in relation to the appeal, and the length of the trial (in the sense that he informed Mr Theodore that there would be a dozen witnesses called by the Regulator and that he was planning to call a number of witnesses to present the case for Mrs Sharples).  Mr Sharples said that he also informed Mr Theodore that it was likely that Mrs Sharples would have to go through more than one day in the witness box and be cross-examined.
  1. [51]
    Dr Lyle: Dr Lyle has been Mrs Sharples' general practitioner since late 2013.  She has consulted him "quite often" in relation to a range of medical matters, including in relation to alleged injury which is the subject of her appeal.  Her most recent appointment with Dr Lyle was on 29 July 2015.  Her purpose in seeing him on that occasion was to ask if he would support her in relation to the application that she be independently examined by a psychiatrist.  She told Dr Lyle that the appeal was happening after a lull.  She did not tell him about the length of the hearing, but asked him how he felt about appearing as a witness at the hearing.

Consideration

  1. [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.
  1. [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.
  1. [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. 
  1. [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.
  1. [56]
    In that context, and having regard to:
  1. (a)
    the limited direct personal involvement of the Appellant in pre-hearing proceedings before the Commission; and
  1. (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. 

  1. [57]
    The Regulator's application must be dealt in accordance with the statutory requirements and by reference to the evidence and submissions summarised above.
  1. [58]
    I am satisfied that:
  1. (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
  1. (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. [59]
    The remaining question is whether the Commission should exercise its discretionary power to order Mrs Sharples to submit to a personal examination by a specified registered psychiatrist for the purpose of assessing whether she is medically fit to give evidence-in-chief and be cross-examined and to provide instructions to litigate her appeal.
  1. [60]
    The medical evidence provided in support of the submissions made on behalf of Mrs Sharples has the following key features:
  1. (a)
    it is provided by a general practitioner and two relevantly qualified medical specialists, each of whom has been treating Mrs Sharples regularly for a year and a half or more;
  1. (b)
    it directly addresses the issues raised in the Regulator's application; and
  1. (c)
    it is based on recent examinations of Mrs Sharples.
  1. [61]
    On that basis, it might seem appropriate to conclude that the statements and medical certificate satisfy the concerns of the Regulator when bringing the application and provide a sufficient answer to that application.
  1. [62]
    However, Mrs Sharples gave evidence to the effect that she did not provide any of the doctors with information about the expected length of the hearing, the number of witnesses to be called, and other features of the hearing in which she would be directly involved.  On the basis of Mr Sharples' evidence, it would appear that Mr Theodore had some knowledge of those features some months ago.  Apart from their evidence, there is no nothing by reference to which the Commission can assess the basis on which those opinions were given.
  1. [63]
    I note that at the hearing on 30 July 2015, Mrs Sharples appeared attentive to the proceedings.  She appeared to follow them closely, and frequently provided observations and instructions to her representative.  When she gave evidence at short notice and with little time to prepare, her evidence was responsive to the questions and clearly expressed.  Where she did not recall something (such as the number of times when she had consulted a particular doctor), she was frank about that.  Her demeanour on that occasion, albeit in relatively benign circumstances, suggests that she is capable of giving evidence in the appeal and providing instructions to her representative.  However, I am not a medical specialist and have not had any previous dealings with Mrs Sharples so am not able to assess her capacity to function in that way in the course of a protracted and detailed appeal hearing.

Conclusion

  1. [64]
    It will be apparent from the discussion above that the factors which could influence the exercise of the Commission's discretion are relatively evenly balanced.  However, because of some unusual features of this case, 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.
  1. [65]
    Consequently, I am satisfied that it is appropriate that an independent medical opinion be sought.  Although Mrs Sharples has appointed Mr Sharples to represent her, and it is clear that she intends to proceed on the basis that he will be present throughout the hearing, I will also seek a report on Mrs Sharples' capacity to conduct the appeal as a litigant in person.  I have decided to do that because:
  1. (a)
    some of the delays in complying with directions have been as a direct result of Mr Sharples being unwell, and consequently it is at least possible that Mrs Sharples will have to take over the conduct of her appeal at some stage; and
  1. (b)
    if Mr Sharples is to give evidence at the hearing (a course of action that is apparently intimated by including him in the latest list of witnesses to be called by Mrs Sharples), then Mrs Sharples may need to conduct the examination-in-chief and any re-examination of him.
  1. [66]
    The Regulator nominated three possible medical specialists, one of whom (Dr Bradley Ng) practises relatively close to Mrs Sharples' residence.  Mrs Sharples expressed a preference to attend at his practice if a direction was made under s 556 of the Act, and that seems appropriate.
  1. [67]
    It is important that Dr Ng be made aware of the proposed duration of the hearing, the number of witnesses to be called by each party, the estimated time for the Sharples to give evidence, and the other features of the case with which she will have to deal as a litigant in person.  It might assist if Dr Ng were provided with a copy of the trial plan prepared by the parties in accordance with directions orders, and with relevant extracts from these reasons for decision (particularly paragraphs [52] to [54]).  The Regulator should provide that material to Dr Ng before the date of the medical examination.
  1. [68]
    Before making the order, I remind the parties that they should proceed on the basis that the hearing will commence on Monday 31 August 2015 and will continue on each consecutive hearing day thereafter until 9 September 2015 or possibly 11 September 2015.  Accordingly, each party should continue to comply with any outstanding directions orders in relation to the hearing of the appeal and should make appropriate preparations for the hearing.
  1. [69]
    I note also that, on at least two occasions (the mention before the Vice President on 15 July 2015 and the hearing of the Regulator's application before the Commission as presently constituted on 30 July 2015), the Commission provided Mrs Sharples and Mr Sharples with guidance as to how they might prepare for the hearing so that the hearing can proceed as smoothly and expeditiously as practicable.  I will not repeat the guidance given on those occasions, but urge Mrs and Mr Sharples to obtain and study the transcript for both those proceedings to refresh their memories in relation to that guidance.

 Orders

  1. [70]
    For the reasons given above, I make the following orders:
  1. 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 Bradley Ng at Currumbin Clinic, Suite 3, 37 Bilinga Street, Currumbin, at 1.30 pm on Monday 10 August 2015.
  1. Dr Ng 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:
  1. (a)
    to provide instructions to litigate her own appeal, give evidence-in-chief, and be cross-examined; or
  1. (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.
  1. As soon as practicable after that examination, Dr Ng 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.
  1. 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.
  1. If, without reasonable cause, Mrs Sharples does not attend the medical examination by Dr Ng 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.
  1. The parties' costs of this application are reserved to the Member hearing the appeal in 2015/WC000059.
  1. [71]
    Order accordingly.

Footnotes

[1] Darius Adair Carter AND Q-COMP (2007) 185 QGIG 245.

[2] Darius Adair Carter AND Q-COMP (2007) 185 QGIG 245, 246.

[3] Blackwood v Mana [2014] ICQ 027 (31 October 2014) [13].

Close

Editorial Notes

  • Published Case Name:

    Simon Blackwood (Workers' Compensation Regulator) v Sharples

  • Shortened Case Name:

    Simon Blackwood (Workers' Compensation Regulator) v Sharples

  • MNC:

    [2015] QIRC 139

  • Court:

    QIRC

  • Judge(s):

    Member Neate IC

  • Date:

    31 Jul 2015

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
Blackwood v Mana [2014] ICQ 27
2 citations
Jump To
Cite 1 - [2014] ICQ 27
Cite 2 - [2014] ICQ 27
Darius Adair Carter AND Q-COMP (2007) 185 QGIG 245
3 citations
Jump To
Cite 1 - (2007) 185 QGIG 245
Cite 2 - (2007) 185 QGIG 245
Cite 3 - (2007) 185 QGIG 245

Cases Citing

Case NameFull CitationFrequency
SAMI Bitumen Technologies Pty Ltd v Workers' Compensation Regulator [2024] QIRC 2902 citations
Sharples v Workers' Compensation Regulator [2015] ICQ 223 citations
1

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