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JJ Richards & Sons Pty Ltd v Workers' Compensation Regulator[2016] QIRC 147

JJ Richards & Sons Pty Ltd v Workers' Compensation Regulator[2016] QIRC 147

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

JJ Richards & Sons Pty Ltd v Workers' Compensation Regulator [2016] QIRC 147

PARTIES:

JJ Richards & Sons Pty Ltd

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2015/317

PROCEEDING:

Appeal

DELIVERED ON:

22 December 2016

HEARING ON:

24 October 2016

MEMBER:

Deputy President O'Connor

ORDERS:

  1. The application is allowed;
  2. The appellant is granted leave to file and serve an amended notice of appeal by Friday 14 January 2017; and
  3. Costs reserved.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Whether injury arose out of, or in the course of employment - Whether employment was a significant contributing factor - where decision of the Medical Assessment Tribunal was sought - whether Commission has jurisdiction to hear matter where Tribunal has already issued a decision in relation to injury - whether decision of Tribunal limited to medical matters

CASES:

Workers' Compensation and Rehabilitation Act 2003 ss 32, 500, 501, 514, 549, 515

Accident Compensation Act 1985

McKinnon-Domingo v QComp [2006] QIC 23; 182 QGIG 28

WorkCover Queensland v Walch-Ryan [2000] QIC 50; 165 QGIG 84

CSR Ltd v General Medical Assessment Tribunal-Thoracic and Anor [2010] QSC 321

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43

Zecevic v Simon Blackwood (Workers' Compensation Regulator) & Anor [2015] QSC 232

Davidson v Blackwood [2014] ICQ 008

Sherlock v Lloyd (2010) 27 VR 434

APPEARANCES:

Mr C Clark of Counsel, instructed by Sparke Helmore  Lawyers for the appellant

Mr P O'Neill of Counsel, instructed directly by the respondent

  1. [1]
    On 23 December 2015, JJ Richards & Sons Pty Ltd (the appellant) lodged a Notice of Appeal in the Industrial Registry of the Commission pursuant to s 549 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
  1. [2]
    The respondent contends the Commission has no jurisdiction to hear and determine this appeal.  It is argued by the respondent that, as a consequence of the referral by WorkCover to the Medical Assessment Tribunal (the Tribunal) and its decision, the appellant is bound by that decision, namely, that the matters alleged in the application constitute an injury to the claimant within the meaning of s 32 of the Act.
  1. [3]
    The appellant accepts that by virtue of s 515(1)(a) of the Act, the Tribunal's decision on a "medical matter" is final.  However, the appellant contends that on a proper consideration of the provisions of the Act the referral to the Tribunal of a "medical matter" and the utilisation of the Tribunal's decision does not put any subsequent decision by the Regulator beyond the reach of the appeal rights enshrined in s 549 of the Act.
  1. [4]
    The respondent contends that the Commission does not have jurisdiction to hear the appeal or, alternatively, is bound to adhere to the decision of the Tribunal.  To do otherwise, it is submitted, would contravene the clear intent of s 515 of the Act.
  1. [5]
    The respondent submits that in accordance with the clear intent of section 515 of the Act and the decisions of the Industrial Court in McKinnon-Domingo v QComp[1] and WorkCover Queensland v Walch-Ryan,[2] the respondent submits that the decision of the Tribunal on those issues is final and would be inappropriate for that decision to be now questioned in the manner proposed in the Notice of Appeal and the appellants Statements of Facts and Contentions.
  1. [6]
    If it was the intention of the appellant to challenge the decision of the Tribunal then there was, on the respondent's submission, an appropriate mechanism to do so pursuant to s 515(2) of the Act.  It was argued that it is now not possible for the appellant, particularly given its failure to seek relief in the appropriate jurisdiction to now seek to challenge the decision of the Tribunal through the Commission.

Background

  1. [7]
    The Donald Joseph Bergin (the claimant) was at the relevant time employed by JJ Richards & Sons Pty Ltd as a heavy truck driver, driving garbage collection trucks.
  1. [8]
    On Thursday 30 October 2014, the claimant was performing a normal garbage collection run.  In order to avoid a parked car, the claimant had to swing the truck out and around the parked car.  When turning the steering wheel, the claimant alleges that he felt a sharp pain in his right shoulder.
  1. [9]
    The medical evidence received by WorkCover was contradictory and, as a consequence, the claim was referred to the Tribunal pursuant to s 501 of the Act.
  1. [10]
    The terms of reference for the Tribunal were as follows:

"Mr Bergin lodged an application for compensation relating to injuries alleged to have been sustained as a result of an event that occurred in the course of his employment with JJ Richards & Sons Pty Ltd as a heavy truck driver on 6 November 2014.

WorkCover Queensland has not yet determined liability for the following injury:

  • Right shoulder tendinitis

The referral is with respect to right shoulder tendinitis.

The matter is referred to the Tribunal in accordance with Workers' Compensation and Rehabilitation Act 2003. The terms of reference to the Tribunal are:

Section 501:

  1. (2)
    If the injury has not been admitted that an injury was sustained by a worker, and the nature of the injury, the tribunal must decide-
  1. (a)
    whether the matters alleged in the application for compensation constitute an injury to the worker and, if so, the nature of the injury.
  1. (b)
    whether an incapacity for work resulting from the injury-
  1. (i)
    is total or partial; and
  2. (ii)
    is permanent or temporary."
  1. [11]
    The Orthopaedic Assessment Tribunal convened on 19 June 2015 was constituted by Dr B McPhee (Chairperson), Dr T Foot and Dr W Sugars.
  1. [12]
    It was necessary for the Tribunal to determine whether the matters alleged in the application for compensation constitute an injury to the worker and, if so, the nature of the injury.
  1. [13]
    By a decision dated 19 June 2015, the Tribunal determined that the matters alleged constituted an injury to the Claimant, namely, an acute rupture of the right biceps tendon.
  1. [14]
    On 14 July 2015 WorkCover accepted the claim concluding that it was satisfied "On the balance of probabilities that the Claimant had suffered a personal injury arising out of, or in the course of his employment when he was turning the steering wheel of his truck on 06/11/14."
  1. [15]
    The appellant sought a review of the decision and on 27 November 2015 the respondent's review unit confirmed the decision WorkCover to accept the application for compensation.
  1. [16]
    The review decision of the respondent concluded by noting:

  "Appeal Rights

If either party disagrees with this decision then either party may appeal to the Queensland Industrial Relations Commission in Brisbane. Either party has 20 business days from the date of receipt of this decision in which to lodge an appeal. A copy of the notice lodged with the commission must also be served on the regulator within 10 business days."

  1. [17]
    The appellant argues that notwithstanding what is set out above, the respondent has taken its current position.
  1. [18]
    The grounds of appeal are as follows:
  1. (a)
    Mr Bergin did not sustain any injury at work on 6 November 2014 within the application of the Workers' Compensation and Rehabilitation Act 2003.
  1. (b)
    Mr Bergins alleged injury on 6 November 2014 did not arise out of or in the course of his employment;
  1. (c)
    employment was not a significant contributing factor to Mr Bergin's alleged injury; and
  1. (d)
    in particular, the Appellant contends that the decision maker erred in:
  1. (i)
    failing to give sufficient weight to the opinion of Dr English, Orthopaedic Surgeon;
  1. (ii)
    failing to give sufficient weight to the evidence of Dr Ness, Orthopaedic Surgeon;
  1. (iii)
    determining that the mechanism of injury is consistent with Mr Bergin's work duties;
  1. (iv)
    failing to give sufficient weight to the evidence and Jodie Hind, Ryan Liddell, Jason Farrell and Lass Borune;
  1. (v)
    failing to take into account the extent of the claimants degenerative condition; and
  1. (vi)
    in preferring the opinion of the Medical Assessment Tribunal, which relied on a finding that the steering of truck was defective, when it is disputed by the Appellant that was any defect with the truck in question.
  1. [19]
    It is from the review decision of the respondent that the present appeal has been lodged an Industrial Registry.

 Relevant Legislation

  1. [20]
    WorkCover's capacity to make a reference to a tribunal is provided for in s 500 which relevantly provides:

"(1) An insurer may refer the following matters in relation to an injury under this Act to the appropriate tribunal for decision on the medical matters involved -

  1. (a)
    a worker's application for compensation for an alleged injury;

 …"

  1. [21]
    The appellant did not admit that an injury had been sustained by the claimant and therefore s 501(2) is relevant:

"(2) If the insurer has not admitted that an injury was sustained by a worker, and the nature of the injury, the tribunal must decide -

  1. (a)
    whether the matters alleged in the application for compensation constitute an injury to the worker and, if so, the nature of the injury; and
  1. (b)
    whether an incapacity for work resulting from the injury -

is total or partial; and

is permanent or temporary; …"

  1. [22]
    The Tribunal may, if non-medical matters are included in the terms of reference refer those matters back to the insurer under s 514:

"(1) If the tribunal considers that the terms of a reference to it involve -

  1. (a)
    both medical and non-medical matters; or
  1. (b)
    entirely non-medical matters;

the tribunal may refer the non-medical matters back to the insurer for a decision.

  1. (2)
    To remove any doubt, it is declared that if the tribunal decides a medical matter mentioned in subsection (1)(a), section 515 applies to that decision.
  1. (3)
    Section 513 applies to a reference back to the insurer under subsection (1)."
  1. [23]
    The finality of the Tribunal's decision (apart from Judicial Review) is provided for in s 515:

"Either of the following decisions of the tribunal is final and cannot be questioned in a proceeding before a tribunal or a court, except under section 512 -

  1. (a)
    a decision on a medical matter referred to the tribunal under section 500;
  1. (b)
    a decision under section 514(1).

 (2)  Subsection (1) has no effect on the Judicial Review Act 1991."

  1. [24]
    The appellant submits that on a proper consideration of the material before the Commission, all that WorkCover sought and did achieve pursuant to s 501 of the Act was to obtain a decision on medical matters involved in the claim compensation. Having received that decision, WorkCover then proceeded to make its own decision in respect of the employee's claim.
  1. [25]
    The appellant accepts that by virtue of 515(1)(a) of the Act, the Tribunals decision on a medical matter is final.  However, a consideration of the provisions of the Act make it clear that WorkCover's referral of a medical matter to the Tribunal does not put any subsequent WorkCover decision (or by the Regulator) beyond the reach of the appeal rights contained within s 549 of the Act.
  1. [26]
    It is abundantly clear that s 501 of the Act confine's the Tribunal's power to the determination of issues of a medical nature necessary to make an assessment of the claim.  Whilst the term "medical matter" is not defined in the Act it can be said, that the expression contemplates issues within the specialist panel's expertise and knowledge of medical science. 
  1. [27]
    The consideration of any claim of compensation will involve resolution of a number issues, not all of which can be properly characterised as being of a medical nature.
  1. [28]
    To determine an injury within the meaning of s 32 of the Act, it is necessary, for present purposes, to prove three elements.  First, whether the worker sustained a personal injury; secondly, whether the personal injury arose out of or in the course of the workers employment; and thirdly, that the employment was a significant contributing factor to the injury.
  1. [29]
    It was submitted by the applicant that s 501 (1) of the Act confines the Tribunal's powers to those issues of a medical nature involved in the assessment of the claim. Consequently, the power of the Tribunal would be limited to matters of diagnosis as to whether an alleged mechanism of injury could potentially result in that particular diagnosis.  Whether a particular mechanism of injury occurred or otherwise is a question of fact and not a medical matter.  Therefore, the resolution of such an issue is beyond the prescribed power of the Tribunal.  The resolution of that issue remains with the insurer in assessing the employer's entitlement to compensation.
  1. [30]
    To support that contention, the appellant made reference to the decision of CSR Ltd v General Medical Assessment Tribunal – Thoracic and Anor.[3]  In that case, the appellate employer sought judicial review of the tribunal's findings the claim that case were seeking compensation for a condition called Bagassosis which is caused by exposure to spores from mouldy stored bagasse.
  1. [31]
    Whilst the case involved a judicial review of the Tribunal's decision, it is contended by the appellant the case provides some guidance as to the interpretation of the expression "medical matters".  Martin J found that the Tribunal had proceeded to make findings as to the extent of exposure.  His Honour was prepared to conclude that the Tribunal had relied upon the claimant's account which was described as "a clear history of exposure to bagasse and other dust".  The extent of exposure was not, in his Honour's view, a medical matter.
  1. [32]
    The High Court of Australia in Wingfoot Australia Partners Pty Ltd v Kocak[4] ('Wingfoot') was asked to determine the effect of s 68(4) of the Accident Compensation Act 1985 (Vic).  That section relevantly provides:

"For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted in applied by any court, body or person and it must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question the to the Medical Panel or when the medical question or was referred."

  1. [33]
    Wingfoot involved a determination by a Medical Panel's which was binding for the purposes of determining the question under the Accident Compensation Act 1985. Mr Kocak had substantial expert medical opinion to support his claim that a neck injury suffered in the course of his employment was a cause of his serious medical condition.  However, the Medical Panel found that the 1996 injury was merely a soft tissue injury that could not possibly have caused his chronic neck/cervical spine condition.  The Victorian Court of Appeal quashed the opinion of the Medical Panel. It found the Panel was obliged to provide a comprehensible explanation for rejecting Mr Kocak's expert medical opinions.  As the reasons did not provide this explanation, they were not proper or adequate reasons.  Wingfoot then sought special leave to appeal to the High Court.
  1. [34]
    The High Court said:

"What s 68(4) of the Act on that construction requires is that an opinion of a Medical Panel on a medical question referred to it must thereafter be adopted and applied for the purposes of determining the question or matter, arising under or for the purposes of the Act, in which the medical question arose and in respect of which the medical question was referred to the Medical Panel. What s 68(4) does not require is that the opinion must thereafter be adopted and applied for the purposes of determining some other question or matter."[5]

  1. [35]
    The Court went on to note:

"The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions [57]. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."[6]

And:

"The legal effect of an opinion of a Medical Panel on a medical question referred to it is that given by s 68(4) of the Act. The legal effect given by s 68(4) is not that the opinion must be adopted and applied for the purposes of determining all questions or matters arising under or for the purposes of the Act. The legal effect given by s 68(4) is that the opinion must be adopted and applied for the purposes of determining the question or matter, arising under or for the purposes of the Act, in which the medical question arose and in respect of which the medical question was referred to the Medical Panel. The opinion is given no greater legal effect through the operation of issue estoppel."[7]

  1. [36]
    P McMurdo J in Zecevic v Simon Blackwood (Workers' Compensation Regulator) & Anor,[8] a judicial review challenging the decision that the applicant's scleroderma was not the consequence of his employment.  His Honour wrote:

"The Tribunal's power was limited to a consideration of so-called medical matters, according to s 500. By s 514, if the Tribunal considered that the terms of a reference to it involved both medical and non-medical matters, the Tribunal was able to refer the non-medical matters back to the insurer for a decision. A Tribunal's decision is final in so far as it is a decision on a medical matter referred to it and subject to the operation of the Judicial Review Act 1991 (Qld). The term "medical matter" was and is undefined in the Act."

  1. [37]
    His Honour goes on the note:

"Indisputably, the Tribunal was performing its proper role in its consideration of whether the applicant was suffering from scleroderma. In my view, it was also doing so in considering, by the application of the professional knowledge and experience of its members, whether the disease has been caused by the applicant's employment. The absence of a known aetiology did not mean that the Tribunal's decision was made beyond its role as the decision maker for medical matters. Whether the disease had resulted from the applicant's employment was a medical matter, which was the subject of evidence from two doctors, each of whom expressed a professional opinion."

  1. [38]
    In my view, the opinion of the Tribunal as to what constitutes a "personal injury" is by virtue of s 515 of the Act binding on the parties.  The parties would, in particular, be precluded from challenging the accepted diagnosis of acute rupture of the right biceps tendon. However, notwithstanding that view, the parties would not been precluded from challenging the factual and legal issues as to whether or not the personal injury was an injury within the meaning of s 32 of the Act.  That is, whether the personal injury arose out of or in the course of the workers employment; and whether the claimant's employment was a significant contributing factor to the injury.
  1. [39]
    It must be remembered that the factual background used to assist the Tribunal in the determination of the mechanics of the injury is untested.
  1. [40]
    The approach adopted by the Tribunal is, in reality, no different to any independent expert opinion relied upon in a hearing before the Commission.  The expert medical witness serves as a witness of opinion, asked to provide an independent opinion based on the facts of the particular case.  If facts are in dispute, the expert medical witness will be asked to assume certain facts.  The opinion of a particular medical expert witness is sought because of the expert's professional experience and expertise in a particular field relevant to the case.
  1. [41]
    As Martin J noted in Davidson v Blackwood:[9]

"It is inevitable in cases such as this that expert witnesses will play an important, if not determinative, roles for both parties to a dispute.  The outer limits of these roles must, however, be marked out by the law of evidence, and, in particular, the ultimate issues rule, according to which an expert must not seek to substitute himself or herself for the tribunal of fact, or for the Court."

  1. [42]
    In Sherlock v Lloyd[10] the Victoria Court of Appeal described a medical tribunal as a statutory expert, providing an expert opinion for the assistance of the court and the parties on medical (not legal) questions.
  1. [43]
    In my view, what is assessed by the Tribunal is whether a claimant has suffered a personal injury within s 32 of the Act.
  1. [44]
    The legislative provisions recognise as much in s 514(1) of the Act where the Tribunal may refer non-medical matters back to the insurer for determination. Section 514 (2) reinforces the fact that only a medical question is protected from challenge when it provides that if the tribunal decides a medical matter mentioned in subsection (1)(a), s 515 applies to that decision.  In short, the only matter which is final and cannot be questioned is a decision of the Tribunal on a medical matter.
  1. [45]
    I cannot accept that it was the legislature's intention to create through the Medical Assessment Tribunals an alternate review mechanism to the Industrial Commission. The current provision effects the rights of the parties both before the Commission and at Common Law.  As Hall P observed in WorkCover Queensland v Walch-Ryan:

"Further, looking at the matter purposely rather than treating words literally, I cannot understand why the legislature would bar an appeal against the determination of the Medical Assessment Tribunal whilst permitting collateral attack on the reference to Tribunal based on an attack on the inadequacy of the Tribunal's determination."[11]

  1. [46]
    The approach adopted by the Commission in determining this issue recognises the expertise of the panel, does not challenge or bring into question the determination of the Tribunal and, at the same time, recognises the role of the Commission as both the tribunal of fact and of law.

Conclusion

  1. [47]
    I accept that the opinion of the Tribunal is by virtue of s 515 of the Act binding on the parties. The appellant is, in particular, precluded from challenging the accepted diagnosis of acute rupture of the right biceps tendon.
  1. [48]
    Having determined that the matters alleged constituted a personal injury to the claimant, it will be necessary for the appellant's notice of appeal to be amended to accord with this decision. 

Orders

  1. [49]
    I make the following orders:

 1. The application is allowed;

 2. The appellant is granted leave to file and serve an amended notice of appeal by Friday 14 January 2017; and

 3. Costs reserved.

Footnotes

[1] [2006] QIC 23; 182 QGIG 28.

[2][2000] QIC 50; 165 QGIG 84.

[3] 2010 QSC 321.

[4] [2013] HCA 43.

[5] [2013] HCA 43, [37].

[6] [2013] HCA 43, [47].

[7] [2013] HCA 43, [64].

[8] [2015] QSC 232, [22].

[9] [2014] ICQ 008.

[10] (2010) 27 VR 434, 439 as per Maxwell P, Ashley JA and Byrne AJA.

[11] [2000] QIC 50; 165 QGIG 84.

Close

Editorial Notes

  • Published Case Name:

    JJ Richards & Sons Pty Ltd v Workers' Compensation Regulator

  • Shortened Case Name:

    JJ Richards & Sons Pty Ltd v Workers' Compensation Regulator

  • MNC:

    [2016] QIRC 147

  • Court:

    QIRC

  • Judge(s):

    O'Connor DP

  • Date:

    22 Dec 2016

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
CSR Ltd v General Medical Assessment Tribunal - Thoracic [2010] QSC 321
2 citations
Jump To
Cite 1 - [2010] QSC 321
Cite 2 - [2010] QSC 321
Davidson v Blackwood [2014] ICQ 8
2 citations
Jump To
Cite 1 - [2014] ICQ 8
Cite 2 - [2014] ICQ 8
Kinnon-Domingo v QComp [2006] 182 QGIG 28
2 citations
Jump To
Cite 1 - [2006] 182 QGIG 28
Cite 2 - [2006] 182 QGIG 28
McKinnon-Domingo v QComp [2006] QIC 23
2 citations
Jump To
Cite 1 - [2006] QIC 23
Cite 2 - [2006] QIC 23
Sherlock v Lloyd (2010) 27 VR 434
2 citations
Jump To
Cite 1 - (2010) 27 VR 434
Cite 2 - (2010) 27 VR 434
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
5 citations
Jump To
Cite 1 - [2013] HCA 43
Cite 2 - [2013] HCA 43
Cite 3 - [2013] HCA 43
Cite 4 - [2013] HCA 43
Cite 5 - [2013] HCA 43
WorkCover Queensland v Walch-Ryan [2000] QIC 50
3 citations
Jump To
Cite 1 - [2000] QIC 50
Cite 2 - [2000] QIC 50
Cite 3 - [2000] QIC 50
WorkCover Queensland v Walch-Ryan [2000] 165 QGIG 84
3 citations
Jump To
Cite 1 - [2000] 165 QGIG 84
Cite 2 - [2000] 165 QGIG 84
Cite 3 - [2000] 165 QGIG 84
Zecevic v Blackwood [2015] QSC 232
2 citations
Jump To
Cite 1 - [2015] QSC 232
Cite 2 - [2015] QSC 232

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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