Kim, Insung v Workers' Compensation Regulator
[2018] QIRC 48
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- Unreported Judgment
- Kim, Insung v Workers' Compensation Regulator[2018] QIRC 48
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Kim, Insung v Workers' Compensation Regulator[2018] QIRC 48
Kim, Insung v Workers' Compensation Regulator[2018] QIRC 48
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kim, Insung v Workers' Compensation Regulator [2018] QIRC 048 | |
PARTIES: | Kim, Insung (Appellant) v Workers' Compensation Regulator (Respondent) | |
CASE NO: | WC/2017/14 | |
PROCEEDING: | Application to Dismiss | |
DELIVERED ON: | 16 April 2018 | |
HEARING DATES: | 11 December 2017 12 December 2017 (Regulator's Submissions) 5 January 2018 (Appellant's Submissions) | |
HEARD AT: | Brisbane (11 December 2017) | |
MEMBER: | Deputy President Swan | |
ORDERS |
| |
CATCHWORDS: | WORKERS' COMPENSATION - APPLICATION TO DISMISS - Application to dismiss made under Industrial Relations Act 2016 by Workers' Compensation Regulator to dismiss substantive Appeal - No reliable evidence to support the Appellant's claim - Further proceedings before the Commission not desirable in the public interest - Application to Dismiss granted and substantive Appeal is dismissed. | |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2003 Industrial Relations Act 2016 Industrial Relations Act 1999 (superceded)
| |
APPEARANCES: | Mr R. Green of Counsel instructed by Ms L. Lee of Park and Co Lawyers for the Appellant. Ms D. Callaghan of Counsel directly instructed by Ms L. Hedges of the Workers' Compensation Regulator. |
Decision
- [1]The Workers' Compensation Regulator' (the Regulator) has submitted that the Appeal filed by Mr Insung Kim (the Appellant), be dismissed for the following reasons:
"10. The basis of the Appellant's appeal is that the Appellant has the onus of proof to demonstrate that:
(a)first, that he has sustained the injury of intervertebral disc herniations of both the cervical and lumbar spine;
(b) secondly, whether these conditions arose out of or in the course of employment and employment is a significant contributing factor.
11. The basis for the application to strike out is that the Appellant has no reasonable prospects of success, the cause is trivial and further proceedings are not necessary or desirable in the public interest." [Regulator's submissions]
Progression of the Appeal
- [2]The matter had commenced by way of hearing before the Commission, however it was during the course of the Appellant's opening submissions and consideration of the information provided by the Appellant that the Regulator sought to have the matter dismissed.
Legal considerations
- [3]Section 451 of the Industrial Relations Act 2016 (IR Act) is as follows:
"451 General powers
(1) The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
(2) Without limiting subsection (1), the commission in proceedings may -
- (a)give directions about the hearing of a matter; or
- (b)make a decision it considers appropriate, irrespective of the relief sought by a party; or
- (c)make an order it considers appropriate."
- [4]Section 541 of the IR Act, states:
"541 Decisions generally
The Court or commission may, in an industrial cause do any of the following:
(a)make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial mater to which the cause relates, without being restricted by any specific relief claimed by the parties to the cause;
(b)dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
(i)the cause is trivial; or
(ii)further proceedings by the court or commission are not necessary or desirable in the public interest;
(c)order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate."
- [5]The Regulator submits that the powers under s 541 of the IR Act (or the equivalent provision s 331 under the previous Act[1]), have been used to dismiss applications to the Commission under the Workers' Compensation and Rehabilitation Act 2003 (WCR Act), see Pritchard v Simon Blackwood (Workers' Compensation Regulator)[2].
- [6]However, in Gambaro v Workers' Compensation Regulator[3], Martin J, President, declined to rely upon s 541 of the IR Act in an application to dismiss an appeal to the Industrial Court, on the basis that submissions had not been made in the subject application or in Pritchard about the applicability of that section and it was "well arguable" that a claim for workers' compensation does not fall within the definition of "industrial cause".
- [7]Section 9 of the IR Act states as follows:
"9 What is an industrial matter
(1) An industrial matter is a matter that affects or relates to -
(a) work done or to be done; or
(b) the privileges, rights or functions of -
(i) employers or employees; or
(ii) persons who have been, or propose to be, or who may become employers or employees; or …"
- [8]The Regulator's submissions concerning the applicability of s 541 in its Application to Dismiss is as follows:
"18.In the WCR Act, compensation is repeatedly referred to as an ‘entitlement' of a ‘worker'. [Chapter 3, Parts 1A, 2 and 3]
19.The word ‘rights' referring to legal rights (not proprietary rights) is commonly used interchangeably with the words ‘entitlement' and ‘privilege' - pertinently, by the High Court in relation to retirement allowances [Cunningham v Commonwealth of Australia[4] per French CJ, Kiefel and Bell JJ] and workers' compensation [Adco Constructions Pty Ltd v Goudappel[5]]."
- [9]The Commission was taken to the references made above in Cunningham v Commonwealth of Australia and Adco Constructions Pty Ltd v Goudappel. In Cunningham, per French CJ, Kiefel and Bell JJ (see headnote):
"The four plaintiffs served as members of the House of Representatives for no less than 8 years between 1969 and 2001. After they left parliament, they became entitled to retiring allowances. Two of the plaintiffs were also entitled to use a Life Gold Pass for domestic travel. The plaintiffs claimed that the entitlements were rights in the nature of property and that legislative changes made to those rights and determinations of the Remuneration Tribunal constituted acquisitions of property otherwise than on just terms, in contravention s 51(xxxI) of the Commonwealth Constitution.
Held, answering the questions in the special case:
Per French CJ, Keifel and Bell JJ
The legislative amendments do not reduce the plaintiff's entitlements to retiring allowances. Rather, they alter the method by which the quantum of the retiring allowances is calculated. The rights to retiring allowances are not fixed and certain. They are benefits payable in accordance with s 18 of the Parliamentary Contributory Superannuation Act 1945 (Cth) the Superannuation Act) and are subject to the Act, as it stands from time to time: at [36], [37] and [39]".
- [10]
"[43] The term "property" in s 51(xxxi) has always attracted a liberal construction in this Court. Some cases concerning s 51(xxxi) have drawn a distinction between rights recognised by the general law and those which have no existence apart from statute and whose continued existence depends upon statute. The dichotomy is useful. Rights which have only a statutory basis are more liable to variation than others. As was said in Chaffey, however, where the asserted "property" has no existence apart from statute, further analysis is imperative. It is a truism that statutory rights, which are not constitutionally protected, may be subject to variation or extinguished by legislative action. There are, however, some statutory rights which, having regard to their character and the context and purpose of the statute creating them, can be regarded as inherently variable. Statutory remuneration falls into that category. So too does an entitlement to a retiring allowance."
- [11]Where the Regulator submits that "entitlement" and "accrued right" are used interchangeably subsequently, see Adco Constructions Pty Ltd v Goudappel, per French CJ, Crean, Kiefel and Keane JJ[7]:
"[11] Mr Goudappel's pre-amendment entitlement was an accrued right within the meaning of s 30(1)(c) of the Interpretation Act 1987 (NSW), which, by virtue of s 5(2) of that Act, applies to an Act or instrument except insofar as the contrary intention appears in the Interpretation Act, or in the Act or instrument concerned. Section 30(1)(c) provides that the amendment of an Act or statutory rule does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule. However, a "contrary intention" was evidenced by the savings and transitional provisions of the WCA as amended and by the regulation made pursuant to those provisions."
- [12]The Regulator submits that "an application which affects an employee's entitlement to workers' compensation is an industrial matter and s 541 of the IR Act is enlivened".
- [13]This submission is accepted by the Commission as it relates to s 541 of the IR Act.
The Appellant's Statement of Facts and Contentions
- [14]The Statement of Facts and Contentions submitted by the Appellant should represent a complete statement of the Appellant's case and, unless appropriate amendments are permitted by the Commission, a party is bound by those facts and contentions and may only lead evidence which relates to the identified matters, see Yousif v Workers' Compensation Regulator[8], Martin J at [15] to [17].
- [15]The Commission is required to consider whether or not the injury nominated by the Appellant in the review decision, upon which the decision of the Regulator was made, was a work related injury. See Comcare v Burton[9]at 558 and Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services[10] at 234, as discussed in Glover v Simon Blackwood (Workers' Compensation Regulator)[11].
- [16]The Appellant's Facts and Contentions states, inter alia, that:
"Contentions
…
15. The Appellant contends that he sustained lumbar spine and cervical spinal injuries on 14 June 2016. The Appellant relies upon the medical opinions of Dr Tae-hun Lee and Dr Malcolm Wagner in this regard.
16. The Appellant contends that the injuries resulted from his fall while performing his duty of lifting and transferring trimming tubs and trays in Kilcoy on 14 June 2016.
17. The Appellant therefore contends that the injuries to his lumbar spine and cervical spine arose out of, or in the course of his employment, and that the employment is a significant contributing factor to the injury.
Decision Sought
…
19. That a declaration that the Appellant has sustained a physical injury within the meaning of section 32 of the Act, being an intervertebral disc herniation to lumbar and cervical spine."
Submissions
- [17]In submissions, the Regulator made reference to the Uniform Civil Procedure Rules Qld 1999, which it says:
"25. … provides assistance in identifying matters to be considered when a court or commission are deciding whether a proceeding should be struck out or dismissed on a summary basis:
(a) when the appellant had no real prospect of succeeding on its appeal;
(b) there is no need for a trial of the appeal.
26. In Agar v Hyde (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ at [57], cited with approval in Rich v CGU Insurance Ltd (2005) 214 ALR at [18]:
"The test to be applied has been expressed in various ways but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
- [18]When considering the particulars of this appeal, the Regulator states:
"27. In this appeal, there is no medical evidence before the Commission, based on the witnesses being called, their reports and the admissible documents, which would allow a finding to be made that the appellant had sustained intervertebral disc herniations of his cervical and/or lumbar spine.
28. Mr Matthew Marten, the treating chiropractor, who saw the Appellant on the day of the injury was not consulted about any lumbar or cervical symptoms nor ordered or reviewed any radiology of the appellant's back or neck. [Exhibit 5]
29. Dr Charles Hur, the treating General Practitioner, was advised of ‘sciatica features' and ordered a CT scan of the lumbar spine, which was reported on 24 June 2016 as being normal with ‘no significant disc protrusion/prolapse' and diagnosed a soft tissue injury of the left hip."
30. Dr Malcolm Wallace, Orthopaedic Surgeon, provided a report dated 18 February 2017, having not:
- assessed or examined the appellant;
- seen any radiology films or reports apart from the CT report dated 24 June 2016; or
- reviewed the CCTV of the incident.
- [19]In Dr Wallace's Report, he stated that it would be "… of necessity to interview your client with the assistance of an interpreter to clarify the relationship of the injuries to his current symptoms and make note of any other relevant past medical history as well as to conduct a physical examination". [Exhibit 3]
- [20]The Regulator submits that there is no medical evidence before the Commission that the Appellant has intervertebral disc protrusion in the lumbar spine, and therefore the Appellant cannot discharge his onus of proof on the primary issue of injury or that such an injury was connected with his employment.
- [21]The Regulator referred to Martin J's, decision in Gambaro[12] because the Application to Appeal did not disclose an arguable case. In that decision (Gambaro at [49]), Martin J referred to MNSBJ Pty Ltd v Dowling[13] and stated that an appeal without merit is an abuse of process and should not be allowed to remain on foot.
- [22]It is submitted by the Regulator that it is "appropriate" pursuant to s 451(2)(b) General Powers of the IR Act to dismiss the appeal and confirm the decision of the Regulator.
- [23]The Regulator states that pursuant to s 541(b)(i) Decisions generally of the IR Act, as there is no real prospect of success, it is trite to say that the cause is trivial - "of little value or importance". [Oxford Dictionary]
The Appellant's Claim
- [24]The Appellant is a South Korean national. He has limited English. He arrived in Australia in July 2015 on a working holiday Visa.
- [25]At the time of the alleged incident, the Appellant was working at the Kilcoy slaughter factory. He claims to have suffered a fall at work on 14 June 2016 when he slipped and fell on a set of stairs when carrying a tub of meat offcuts.
- [26]The employer initiated a claim for workers' compensation on 22 June 2016 as the Appellant had not returned to work. The Appellant in fact had returned to South Korea on 28 June 2016.
- [27]While the employer had initiated the application, it had noted that there was no issue in terms of the occurrence of an incident. There was no Workers' Compensation Medical Certificate issued and the only reference to the matter was found in a Communications Report dated 3 August 2016. Prior to the Appellant's departure from Australia he had engaged solicitors to act on his behalf. The documents available to the Appellant indicated that WorkCover Queensland had regarded that initial application as closed. (Communication Report 2 September 2016.
- [28]On 24 August 2016, the Solicitors for the Appellant contacted WorkCover Queensland and a compensation claim, pursuant to s 132 of the WCR Act was made.
- [29]The application referred to an injury identified as including injury to "the left buttock, shoulder and lower back". That diagnosis was based on a certificate supplied by Dr Hur, a General Practitioner. The application had included material in accordance with s 132(3)(b) of the WCR Act, relating to treatment undertaken by the Appellant in South Korea before his return to Australia. The communication referred to injuries of the left hip, lower back, shoulder and elbow.
- [30]The Appellant proceeded to make substantive submissions based upon the reasoning and "mistakes" and "bias" in the Review Decision of the Regulator as it related to correctly identifying the Appellant's injury. It stated that the "injury" considered in the Regulator's Review Decision i.e. that of "disc herniation", was incorrect and that the injury remained that of an injury to the "left buttock, shoulder and lower back".
- [31]Notwithstanding that, in the Appellant's Statement of Facts and Contentions it requests in "Decision Sought" amongst other things, that the Commission make:
"19. … a declaration that the Appellant has sustained a physical injury within the meaning of section 32 of the Act, being an intervertebral disc herniation to lumbar and cervical spine."
Conclusion
- [32]The Appellant is constrained in its Appeal to the matters identified in its Statement of Facts and Contentions (Yousif v Workers' Compensation Regulator[14]). The Appellant's Statement of Facts and Contentions defines and confirms the issues before the Commission (see Carlton v Simon Blackwood (Workers' Compensation Regulator)[15]).
- [33]The Commission is also obliged to address the same question as was before the Regulator at review. That is, whether or not the injury nominated in the review decision on which a decision was made, was a work related injury (see Comcare v Burton[16] and Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services[17], as discussed in Glover v Simon Blackwood (Workers' Compensation Regulator)[18].
Is there medical evidence to support the Appellant's claim that the matter should proceed before the Commission
- [34]The Regulator submits that matters which must be considered in the exercise of the Commission's discretion to grant this Application to Dismiss include the lack of real prospects of success, the purposes of the relevant legislation and matters of justice and fairness to each party. It further states
"In consideration of fairness and justice to the parties, the Regulator set out clearly in its statements of Facts and Contentions in July 2017 the deficits in evidence which the appellant needed to address prior to the hearing. The Regulator advised the appellant that, in the usual course, medical evidence would not be tendered by consent and doctors were required for cross-examination." [Regulator's submissions at 41]
- [35]The Appellant in its Statement of Facts and Contentions relies upon the diagnosis of Dr Tae-hun Lee and the qualified opinion of Dr Wallace to support his claim of injury. In an Affidavit provided to the Commission on 11 December 2017, Ms Jungwon (Leena) Lee, Solicitor for the Appellant advised that Dr Tae-hun Lee (who resides in South Korea) had refused to give evidence in this matter. Dr Tae-hun Lee claimed to have been unable to provide a Korean Workers' Compensation Medical Certificate "because the incident had occurred in Australia and it is out of their standard procedures".
- [36]Counsel for the Regulator also queried Dr Tae-hun Lee's qualification as all that had been provided was what appeared to be a web page reference to his qualifications. That, coupled with the fact that Dr Tae-hun Lee was not going to give evidence and therefore unable to be cross-examined by the Regulator, defeated the prospect of any material which might be attributed to him and tendered by the Appellant of any relevance to the Appellant's claim.
- [37]Notwithstanding that Dr Wallace may have made commentary on the Appellant's situation, at no time had the Appellant consulted with Dr Wallace. Dr Wallace had stated that it would be necessary to interview the Appellant, take a history from him and conduct a physical examination to provide an opinion. This did not occur and that matter can be taken no further.
- [38]The Regulator's claim that there is no reliable medical at all to support the Appellant's claim is correct as it relates to Dr Wallace and to Dr Tae-hun Lee.
- [39]It is clear that further proceedings before the Commission are not desirable in the public interest.
- [40]The Regulator's Application to Dismiss is granted. It follows that the substantive Appeal (filed by the Appellant on 1 February 2017) is dismissed.
- [41]The Appellant is to pay the Regulator's costs of, and incidental to this Application and substantive Appeal.
- [42]Order accordingly.
Footnotes
[1] Industrial Relations Act 1999
[2] Pritchard v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 002
[3] Gambaro v Workers' Compensation Regulator [2017] ICQ 005 at [6]
[4] Cunningham v Commonwealth of Australia [2016] HCA 39, (2016) 335 ALR 363
[5] Adco Constructions Pty Ltd v Goudappel (2014) 254 CLR 1
[6] Cunningham v Commonwealth of Australia [2016] HCA 39 (12 October 2016)
[7] Adco Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 at [11]
[8] Yousif v Workers' Compensation Regulator [2017] ICQ 004 at [15] to [17]
[9] Comcare v Burton (1998) 157 ALR 552 at 558
[10] Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234
[11] Glover v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 215
[12] Gambaro v Workers' Compensation Regulator [2017] ICQ 005
[13] MNSBJ Pty Ltd v Dowling (2017) QCA 141 at [28]
[14] Yousif v Workers' Compensation Regulator [2017] ICQ 004, [15] to [17]
[15] Carlton v Simon Blackwood (Workers' Compensation Regulator)(2017) ICQ 001, [11] to [19]
[16] Comcare v Burton (1998) 157 ALR 552
[17] Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FR 225 at 234
[18] Glover v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 215