Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2024
  4. SAMI Bitumen Technologies Pty Ltd v Workers' Compensation Regulator - [2024] QIRC 290

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

SAMI Bitumen Technologies Pty Ltd v Workers' Compensation Regulator[2024] QIRC 290

SAMI Bitumen Technologies Pty Ltd v Workers' Compensation Regulator[2024] QIRC 290

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

SAMI Bitumen Technologies Pty Ltd v Workers' Compensation Regulator [2024] QIRC 290

PARTIES:

SAMI Bitumen Technologies Pty Ltd

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2024/122

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

11 December 2024

MEMBER:

HEARD AT:

Pratt IC

On the papers

ORDER:

  1. Pursuant to section 556 of the Workers' Compensation and Rehabilitation Act 2003, Mr Ross Stewart must submit to a medical examination by either Dr Peter Boys or Dr Hugh English for the purposes of either of those doctors preparing a medico-legal report to be used in the Queensland Industrial Relations Commission in proceedings WC/2024/122.
  1. The Appellant is to provide at least one week's notice to Mr Stewart of the date and time of the medical examination report appointment referred to above in order 1, however, that medical examination report appointment must occur no later than 15 February 2025.
  1. The cost of the medical examination report appointment, production of any report and any of Mr Stewart's reasonable travel costs to and from such appointment are to be paid by the Appellant.
  1. Should Mr Stewart, without reasonable excuse, fail to attend the scheduled medical examination report appointment referred to in order 1, he must reimburse the Appellant within 28 days for any costs reasonably incurred by it in relation to that failure.
  1. Any medical examination report that is produced to the Appellant pursuant to order 1, must be provided to the Respondent within 7 days after the receipt of that report by the Appellant.
  1. Orders numbered 6 through to 12 inclusive contained within the directions order dated 26 June 2024 are vacated.
  1. The matter be listed for mention on 16 December 2024 at 10.00 AM for timetabling.
  1. Costs be reserved.

CATCHWORDS:

INDUSTRIAL LAW – WORKERS' COMPENSATION APPEAL – where appellant, an employer, appeals decision of respondent to grant a workers' compensation to claim to a former employee, Mr Ross Stewart – where appellant filed an application in existing proceedings seeking orders that, among other things, Mr Stewart attend a medical examination for the purpose of obtaining a medico-legal report – consideration of section 556 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('Act') – where appellant submits that in the substantive matter it will argue that personal lifestyle factors were significant contributing factors to Mr Stewart's injury or aggravation of injury – where the appellant submits that the available medical reports do not consider key factors such as activities in Mr Stewart's personal life and Mr Stewart's body habitus when determining the causal relationship between Mr Stewart's exacerbated condition and Mr Stewart's duties at work – where Mr Stewart submits that he is not comfortable with undergoing a medical examination and does not understand why a further medical examination is necessary – where appellant submits that a key issue in the substantive matter is the extent of causation, if any, of Mr Stewart's alleged medical condition – where appellant submits that the existing medical evidence is inadequate and ambiguous – where appellant submits that an independent medical examination would assist the Commission in its consideration of this appeal – held that the cause, nature and extent of Mr Stewart's injury are issues in the substantive proceedings – held that the current state of the medical evidence is inadequate – held that present application bore similarities to other applications where orders made for person to attend a medical examination – held application not a 'fishing expedition' – held that inconvenience to Mr Stewart overcome by adequate notice – held that a further report not unlikely to come up with a different conclusion to that within the evidence already available – application granted.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 548A, s 556

CASES:

Aldi Stores (A Limited Partnership) v Workers' Compensation Regulator [2019] QIRC 51

Atlas Marine International Pty Ltd v Q-COMP [2013] QIRC 61

Bridges Health & Community Care Ltd v Workers' Compensation Regulator [2020] QIRC 9

Carpenter Investments (Qld) Pty Ltd t/a Lockyer Car & Dog Wash v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 162

RW & G Johnston Pty Ltd v Workers Compensation Regulator [2022] QIRC 78

Serco Australia Pty Ltd v Workers' Compensation Regulator [2017] QIRC 114

Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 010

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

State of Queensland (State Library of Queensland) v Waugh and Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 090

Wang v Workers' Compensation Regulator (No. 2) [2023] QIRC 163

Whitsunday Housing Company Ltd v Workers' Compensation Regulator [2018] QIRC 16

Workers' Compensation Regulator v Simounds [2023] QIRC 245

Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 28

Reasons for Decision

  1. [1]
    This is an application in existing proceedings. The existing proceedings are an appeal against a decision of the Respondent, effectively granting a claim for workers' compensation by Mr Ross Stewart. Whilst the outcome of the proceedings obviously impacts on Mr Stewart, he is not a party to the proceedings. The appellant in the substantive proceedings is SAMI Bitumen Technologies Pty Ltd ('Appellant'). The Appellant was Mr Stewart's employer. By way of this application, the Appellant seeks orders compelling Mr Stewart to attend a medical examination by one of two alternative orthopaedic surgeons. The Commission's discretion to make such and order resides within section 556 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('Act').
  1. [2]
    The Commission directed the parties and Mr Stewart to put on written submissions responding to this application. The Appellant put on comprehensive submissions, Mr Stewart put on very brief submissions and the Respondent chose not to put on any submissions.

Relevant Law

Legislation

  1. [3]
    Section 548A(1) of the Act says:
  1. (1)
    An "appeal body" for this division is the industrial commission.
  1. [4]
    Section 556(1)-(3) of the Act says:
  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.

Case law

  1. [5]
    In Bridges Health & Community Care Ltd v Workers' Compensation Regulator ('Bridges Health'),[1] his Honour, Vice President O'Connor, granted an application seeking orders compelling the claimant to attend an independent medical examination.[2] Key to his Honour's reasoning was that the applicant sought an independent medical examination because "a report about causation has never been obtained from a psychiatrist who had possession of and considered the relevant facts and circumstances."[3] His Honour also noted that the psychiatrist who did the initial medical report was unaware of, or in any case did not consider, relevant clinical records that the Appellant believed were forensically important.[4] In reaching those conclusions, his Honour had regard to the following observations of his Honour, Deputy President Bloomfield, in Atlas Marine International Pty Ltd v Q-COMP about section 556:[5]

In making my decision that this is an appropriate occasion where the worker, Mr Kent, should be directed to attend a medical assessment I also noted the fact that Dr Ljubisavljevic is (now) the only medical practitioner who is not treating Mr Kent. While the Employer might have (and might still) seek his re-consideration of his earlier reports in light of any new and additional material which the Employer might draw to his attention, it is also the case that there is some merit in having a fresh clinical psychiatrist, armed with the potential matters in dispute, to undertake an assessment of the type proposed. This is because, at the end of the day, such an assessment is likely to lead to less disputation between the parties to the foreshadowed appeal proceedings.[6]

  1. [6]
    In Bridges Health, his Honour also had regard to the observations in Simon Blackwood (Workers' Compensation Regulator) v Mahaffey[7] of his Honour, President Martin (as his Honour then was), that an expert medical report must:

at a minimum, discuss, and offer an opinion on:

  1. the subject’s psychiatric condition,
  1. what the subject told the psychiatrist about the employment, and
  1. the causal relationship (if any) between the employment and the condition.

In the process of doing that, the psychiatrist should specifically consider the stressors nominated by the subject and express a view, on the assumption that they will be established, as to any causal relationship.[8]

  1. [7]
    In Simon Blackwood (Workers' Compensation Regulator) v Sharples,[9] Industrial Commissioner Neate granted an application for orders compelling an independent medical examination.[10] That application was made, and granted, in order to confirm that   the appellant would be medically fit to give evidence-in-chief, be cross-examined, and provide instructions.[11] That decision was upheld on appeal by his Honour, Deputy President O'Connor, as his Honour then was.[12]
  1. [8]
    In Workers' Compensation Regulator v Simounds ('Simounds'),[13] Industrial Commissioner Pidgeon granted an application seeking orders compelling an independent medical examination. Pidgeon IC observed that section 556 of the Act "provides a discretion for the Commission to order an appellant to attend an independent medical examination where one of the two pre-conditions set out at s 556(1)(a) and (b) are established."[14] Pidgeon IC also observed that the effect of the word "may" in section 556(2) of the Act is that the fact that one or both of the pre-conditions in subsection 556(1) are met only enlivens, and does not dictate, the Commission's discretion to order a claimant or worker to attend a personal examination.[15] Pidgeon IC also noted that the purpose of the discretion in subsection 556(2) is to ensure that both parties can advance their best case and that the Commission has sufficient information before it to determine the matter.[16] Such a purpose justifies any unknown delay caused to the hearing of the matter.[17]
  1. [9]
    In Simounds, Pidgeon IC found that there were discrepancies in the medical evidence owing to the claimant providing varying accounts to doctors of what he thought caused his injury.[18] Pidgeon IC was satisfied that the lack of precision, combined with the injury and its cause being relevant to the substantive matter, meant that the preconditions in subsection 556(1) were met.[19] Pidgeon IC then turned to subsection 556(2), finding the discretion should be exercised because:
  1. a.
    there was no evidence at the time of the application that a further expert report would necessarily assist one party or the other;[20]
  1. b.
    a further expert report would likely assist the Commission by narrowing the issues in dispute;[21]
  1. c.
    the delay in bringing the application was reasonable;[22]
  1. d.
    a medical report on the papers would be inadequate because the applicant would be denied the opportunity to have an expert examine the claimant or worker personally;[23]
  1. e.
    there were an insufficient number of reports before the Commission;[24]
  1. f.
    it was largely irrelevant that the claimant may not be able to recollect exact details of the injury;[25]
  1. g.
    the application was not a 'fishing expedition';[26]
  1. h.
    the applicant would pay for all costs associated with the assessment;[27] and
  1. i.
    any distress caused to the claimant by the medical assessment is ameliorated by the likely professionalism of the medical professional carrying out the assessment.[28]
  1. [10]
    In RW & G Johnston Pty Ltd v Workers Compensation Regulator ('RW & G Johnston'),[29] Industrial Commissioner Dwyer granted an application seeking orders compelling an independent medical examination.[30] Dwyer IC noted that the discretion under subsection 556(2) is a "clear and unambiguous" grant of power to order a medical examination,[31] though one that "ought to be exercised with care".[32] Dwyer IC also observed that "[o]rdering a medical examination of an individual, especially against their will, is a significant step."[33] Dwyer IC found that the circumstances in subsection 556(1)(a) were met because there was a contest over whether the purported psychiatric injury was caused by the conduct of the employer.[34]
  1. [11]
    Dwyer IC was then narrowly persuaded to exercise the discretion to grant the application.[35] Dwyer IC noted that there were already multiple expert reports available – from a general practitioner, a psychologist, and a psychiatrist – and that factual challenges to the diagnosis could have been advanced through the questioning of the various medical professionals.[36] However, Dwyer IC accepted that appellants in workers' compensation matters have "a significant onus to discharge and they ought to have fair opportunity to present evidence that they have confidence in."[37] Dwyer IC also found it persuasive that the four week delay caused by choosing a particular expert was not prejudicial given the early stage of the proceedings, that the claimant was on workers' compensation benefits, and that there was no telling from the outset whether the medical evidence would support one side or the other.[38] Dwyer IC, however, opined that if the delay had been longer or if the examination disrupted a scheduled hearing of the matter, he may not have exercised the discretion.[39]
  1. [12]
    In Wang v Workers' Compensation Regulator (No. 2),[40] his Honour, Deputy President Merrell, declined the claimant's application to have himself (the claimant) ordered to attend an independent medical examination.[41] His Honour said that section 556 was not applicable because that substantive matter turned on the waiver of a limitation period and not on either of circumstances under subsections 556(1)(a) or (b).[42]
  1. [13]
    In Aldi Stores (A Limited Partnership) v Workers' Compensation Regulator ('Aldi Stores'),[43] Industrial Commissioner Thompson granted an application seeking to compel a medical examination.[44] Thompson IC granted that application on the basis that:
  1. a.
    the cause, nature or extent of the injuries were relevant to the appeal of the substantive matter;[45]
  1. b.
    there were legitimate concerns about the consistency of the medical evidence;[46] and
  1. c.
    additional evidence of a medical nature would assist the Commission in its consideration of the substantive matter.[47]
  1. [14]
    Thompson IC also noted that there was no opposition to the surgeons nominated to carry out the proposed independent medical examination,[48] and that any inconvenience caused to the worker by the proposed independent medical examination could be overcome by sufficient notice.[49]
  1. [15]
    In Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) ('Yarrabee Coal Company'),[50] Thompson IC refused to exercise the discretion under section 556(2) on the basis that the report would be delivered so close to the hearing dates that the respondent would be prejudiced by either having insufficient time to respond to the report or having to vacate the hearing dates.[51]
  1. [16]
    In Whitsunday Housing Company Ltd v Workers' Compensation Regulator ('Whitsunday Housing'),[52] Industrial Commissioner Black declined to exercise the discretion,[53] finding an assessment of the claimant's condition would have questionable relevance. That was in part owing to the fact that the psychological injury was suffered four years prior, and because there was already sufficient evidence of psychological injury closer in time to the date the psychological injured was suffered.[54] Black IC found that it was unlikely that a new assessment would arrive at a significantly different conclusion to the prior assessments.[55]
  1. [17]
    In Serco Australia Pty Ltd v Workers' Compensation Regulator ('Serco'),[56] Black IC granted an application ordering the claimant to submit to a personal medical examination.[57] Black IC did so on the basis that "a report about causation had never been obtained from an orthopaedic surgeon who had possession of all the relevant facts and circumstances."[58]
  1. [18]
    In Carpenter Investments (Qld) Pty Ltd t/a Lockyer Car & Dog Wash v Simon Blackwood (Workers' Compensation Regulator) ('Carpenter Investments'),[59] Industrial Commissioner Fisher exercised the discretion in a matter where the mechanism of injury was disputed,[60]  the initial medical report did not consider key information[61] and because of a "paucity of medical evidence about whether the claimed injury arose out of or in the course of employment and whether employment was a significant contributing factor".[62] Fisher IC assuaged any concerns about inconvenience to the claimant by ordering that the medical examination be undertaken in a way convenient to the claimant.[63]
  1. [19]
    In State of Queensland (State Library of Queensland) v Waugh and Simon Blackwood (Workers' Compensation Regulator) ('Waugh'),[64] Fisher IC declined to exercise the discretion, persuaded not to by the fact that medical evidence was sufficient and that it would be particularly distressful to the claimant to direct her to attend a personal examination.[65] Fisher IC also found it relevant that the case would turn on whether the injury was caused by reasonable management action that was taken reasonably.[66]

Submissions

Application

  1. [20]
    The Appellant proposes either of two orthopaedic surgeons – Dr English or Dr Boys – for the purpose of obtaining a medico-legal report. The Appellant relies on an affidavit of Mr Andrew Ross, consultant lawyer of HBA Legal. Mr Ross' affidavit sets out the medical information that the Respondent has made available to the Appellant, which includes:
  1. a.
    Provider Management Plans of Mr Andrew Edwards, a Physiotherapist, dated 31 January 2024 and 19 February 2024;
  1. b.
    Consultation Notes of Health Hub Doctors Morayfield of various dates between 4 November and 17 December 2023;
  1. c.
    The report from the x-ray of Mr Stewart's bilaterial hips by IM Imaging Morayfield dated 14 November 2023;
  1. d.
    The report on Mr Stewart's CT Lumbo-Sacral Spine by IM Imaging Morayfield dated 20 November 2023;
  1. e.
    The report of the MRI of Mr Stewart's right hip by Dr Nai Lai, I-Med Radiology dated 20 March 2023;
  1. f.
    The independent medical examination of Mr Stewart by Dr Brett Halliday, Consultant Orthopaedic Surgeon dated 22 March 2024; and
  1. g.
    WorkCover Queensland (Claim) Communications (twenty one pages).
  1. [21]
    The Appellant says that the Respondent initially accepted the Claim because Mr Stewart suffered a back injury. The Claim was accepted on the basis of a workers' compensation certificate for Mr Stewart issued by Dr Shahab Sojoudi Haghighi on 14 December 2023. The Appellant then sought an internal review of that Claim. The Respondent subsequently directed Mr Stewart to attend a medical assessment by the abovementioned Dr Halliday who produced a report. The Appellant says that it only received a bullet point summary version of that report. 
  1. [22]
    One of the Appellant's arguments at hearing of the substantive matter will be that the Claim should not be accepted because Mr Stewart's personal lifestyle factors were significant contributing factors to any injury/aggravation Mr Stewart might have suffered. The Appellant argues that in his report, Dr Halliday did not sufficiently consider the key factors such as whether:
  1. a.
    the normal activities in Mr Stewart's personal life could have been a significant contributing factor to the injury;
  1. b.
    Mr Stewart's body habitus could have been a significant contributing factor to the injury; and
  1. c.
    there is a significant causal relationship between Mr Stewart's duties at work and Mr Stewart's exacerbated condition, when compared to the other contributing factors outlined in a. and b.
  1. [23]
    There are several documents that are already available which the Appellant says support its application:
  1. a.
    The communications reports of WorkCover Queensland dated 23 February 2024 that apparently show:
  1. i.
    That Mr Stewart presented to his physiotherapist with an aggravation of his right hip, despite not working at that time; and
  1. ii.
    that WorkCover Queensland had concerns that Mr Stewart had applied to be a carer for his wife and that those carer’s responsibilities may have contributed to Mr Stewart’s injury;
  1. b.
    The communications report of WorkCover Queensland dated 14 February 2024 showing that Mr Stewart’s wife’s illness was debilitating;
  1. c.
    Dr Halliday’s report opining that there was no evidence of exacerbation at the time Mr Stewart was examined and that Mr Stewart’s ongoing symptoms otherwise reflected the natural history of the underlying condition; and
  1. d.
    Dr Halliday’s report finding that Mr Stewart needed to manage his condition with weight loss and an exercise program.

Mr Stewart’s submissions

  1. [24]
    Mr Stewart put on only the briefest of submissions in the form of an email stating:

I am uncomfortable and can not (sic) understand why it is necessary to go through yet another examination when the Company has all the doctors (sic) reports, images and all information to diagnose on my condition.

Appellant’s submissions

  1. [25]
    The Appellant argues justification for the orders sought is present in the following:
  1. a.
    A key issue in the substantive proceedings will be the extent of causation, if any, between Mr Stewart’s nominated employment factors and the development of his alleged medical condition;
  1. b.
    The existing medical evidence falls short – it does not address whether the normal activities of Mr Stewart’s personal life could have been a significant contributing factor to the injury, whether Mr Stewart’s body habitus could have been a significant contributing factor to the injury, and whether there is a sufficient causal relationship between Mr Stewart’s duties at work and Mr Stewart’s exacerbated condition in light of the above;
  1. c.
    The lack of contemporaneous medical evidence on Dr Haghighi’s evidence from the period where Mr Stewart’s right hip osteoarthritis was symptomatic, as Dr Haghighi was Mr Stewart’s treating general practitioner, was not best qualified to give independent medical evidence and was providing WorkCover with medical evidence regarding Mr Stewart’s pre-existing back injury at this time;
  1. d.
    The lack of contemporaneous medical evidence from the period when Mr Stewart’s right hip osteoarthritis was symptomatic, as Dr Halliday’s assessment of Mr Stewart took place while Mr Stewart was no longer experiencing any ‘exacerbated’ symptoms; and
  1. e.
    The evidence as to the accuracy of the dates on which, and the location where, Mr Stewart alleges he suffered the exacerbation is questionable.
  1. [26]
    In its response to Mr Stewart’s submissions, the Appellant notes that Mr Stewart has only undergone one independent medical evaluation, which was carried out by Dr Halliday. The Appellant submits that Dr Halliday, despite providing comments in relation to Mr Stewart’s exacerbated hip injury, did not opine comprehensively on the relationship between the exacerbated hip injury and Mr Stewart’s duties in the course of employment.
  1. [27]
    The Appellant also submits that there is considerable ambiguity in the evidence of both the nature and the extent of the injury suffered by Mr Stewart. In support of this submission the Appellant refers to the affidavit of Mr Andrew Ross dated 3 September 2024 and in particular, paragraphs 77 to 83 of the draft statement of facts and contentions (‘DSOFC’) annexed to that affidavit.
  1. [28]
    In paragraph 77 of the DSOFC, the Appellant submits that neither Dr Haghighi nor Dr Halliday were able to establish that any particular activity at work caused Mr Stewart’s right hip osteoarthritis.
  1. [29]
    In paragraphs 78 to 79 of the DSOFC, the Appellant notes that the MRI reports given to Dr Halliday explained that right hip osteoarthritis is a degenerative process. The Appellant submits that it is uncontroversial that Mr Stewart’s right hip osteoarthritis is a chronic pre-existing condition, not an acute injury, and that Mr Stewart would experience pain and/or inflammation as part of the degenerative process. The Appellant submits that it is likely that repetitive walking and standing may irritate the underlying condition without causing the underlying condition.
  1. [30]
    In paragraph 80 of the DSOFC, the Appellant submits that Dr Halliday’s 22 March 2024 report to WorkCover did not consider the event that is alleged to have exacerbated Mr Stewart’s injury. The Appellant submits that Dr Halliday only gave his opinion in the context of managing the symptoms Mr Stewart was experiencing without delineating which of those symptoms were underlying and which of those symptoms were caused by what event, if any, in the workplace.
  1. [31]
    In paragraphs 81 and 82 of the DSOFC, the Appellant submits that Mr Stewart’s right hip osteoarthritis was likely to become symptomatic in any event around the time of, as I surmise, Dr Halliday’s report. In support of this submission, the Appellant argues that the degeneration would be likely to precede the symptoms and that Mr Stewart did not undertake any stressful activity to cause his condition to become painful, aside from walking or climbing stairs that would also make Mr Stewart’s condition painful in his daily life. The Appellant also submits that Mr Stewart’s pain ceased when movement ceased, and that Mr Stewart’s pain was always set to resolve over a certain period.
  1. [32]
    In paragraph 83 of the DSOFC, the Appellant submits that Dr Halliday, in his report to WorkCover dated 22 March 2024, noted Mr Stewart’s history of lower back pain and sciatica from his back when he was in the army and that he had managed the pain through exercise and core strengthening. The Appellant also submits that Dr Halliday noted that the exacerbation of Mr Stewart’s condition has since ceased and that his ongoing symptoms reflect the natural history of the underlying condition.
  1. [33]
    The Appellant further submits that, in light of the foregoing arguments, an independent medical examination would assist the Commission to consider this appeal by providing information on the cause, nature and extent of the injuries claimed by the worker.[67] The Appellant argues that such information is needed given the legitimate concerns about the consistency,[68] interpretation, or context of the medical evidence available. The Appellant notes that there has been no objection to the use of Dr English or Dr Boys for any proposed independent medical examination,[69] and that any inconvenience to Mr Stewart can be managed by giving Mr Stewart at least 48 hours’ notice of the examination.

Consideration

  1. [34]
    The following principles can be summarised from the case law referred to above. Section 556 creates a two-stage test for an order requiring a claimant or worker to submit to a personal examination. The first stage requires that one of the two types of potential facts in issue contemplated in sections 556(1)(a) and (b) must be relevant to the appeal before the power for an order requiring a claimant to submit to a personal examination is enlivened. The first type of potential fact in issue is the condition of the claimant or worker who has, or is said to have, sustained an injury. The second type of potential fact in issue is the cause, nature or extent of the injury or incapacity arising from the injury.
  1. [35]
    The words ‘relevant to the appeal’ require that there be a real, even if slight, possibility that the potential fact in issue may actually become a fact in issue in the appeal. It is, however, not enough to argue that the mere fact it is an appeal of a workers’ compensation claim means that evidence of the fact of injury or of cause, nature and extent of the injury arising from the injury are relevant. An argument that a potential fact in issue is relevant to the appeal must show how the potential fact in issue could become an actual fact in issue in the appeal.
  1. [36]
    The second stage of the test is contained in Section 556(2). The second stage enlivens a discretion for making the orders. This discretion is broad and the factors that should be taken into account depend on the circumstances of the specific application. Yet, as I see it, in exercising the discretion the Commission should be guided by the need to achieve a balance between the need for sufficient and clear evidence underpinning the potential facts in issue and the medical autonomy of the claimant or worker.
  1. [37]
    The two-stage test is, altogether, not an onerous one. Put simply, for an application of this nature to be refused, further medical evidence must really be unnecessary for the purposes of the appeal.
  1. [38]
    Turning now to the present appeal, this application is virtually unopposed but for the fact that the non-party individual at the centre of all of the proceedings has expressed a desire not to be further examined on the basis of not understanding why that would be necessary. Even so, as Dwyer IC pointed out in RW & G Johnston, compelling a person to undergo a medical examination against their will is a significant step.[70]
  1. [39]
    It is abundantly clear that Mr Stewart’s condition, as well as the cause, nature and extent of Mr Stewart’s injury are all going to be facts in issue in the substantive proceedings. Whether in fact he has sustained an “injury” and if so, to what extent, and how that was caused are set to be key disputed facts. So too the nature of Mr Stewart’s condition at relevant times is in issue, complicated medically, and now legally, by the interplay between a degenerative condition, activities of daily life and work activities. It is on that basis that I have no hesitation in coming to the view that this is a case where the discretion in subsection 556(1) of the Act is enlivened.
  1. [40]
    As to the discretion in section 556(2), I accept the Appellant’s submissions as to the state of the current medical evidence before the Commission. The interrelationship between the degenerative condition, lifestyle, daily activities and work at relevant times has not been specifically addressed in the existing medical evidence. I accept that the medical evidence, as it presently stands, is ambiguous as to the abovementioned facts in issue such as causation, extent and nature of the injury and the condition at various relevant times. The resolution of issues in the substantive matter will very likely turn on medical evidence, and the medical evidence, in its current state, cannot sufficiently resolve those issues. For example, I accept the submission that Dr Halliday’s 22 March 2024 report focused more on symptomology in a general sense than causation and mechanism of injury addressing the interrelationship between work at relevant times and Mr Stewart’s degenerative right hip osteoarthritis. That is not a criticism of the assessment of the symptomology, but rather a finding that the assessment on symptomology alone is not sufficient for the purposes of resolving the controversy in these proceedings.
  1. [41]
    As to interpreting the relevant statute, the starting point is the purpose of the relevant provision. The Explanatory Note (‘EN’) for the Bill that became the Act’s section 556 simply states that this provision replaced the one in the 1996 predecessor. The EN for the 1996 Bill says much the same – that it is simply a replacement of the provision within its 1990 predecessor. However, on my assessment there is no need to resort to extraneous material. The purpose of section 556 of the Act and its predecessors is abundantly clear on its face. As Pidgeon IC observed in Simounds, the purpose of the discretion is to ensure that parties can advance their best case and that the Commission has sufficient information before it to determine the matter.[71] It is only through the exercise of that discretion can the Commission remedy a shortfall in medical evidence going to the facts in issue in the proceedings, as guided by subsections 556(1)(a) and (b).
  1. [42]
    I am further guided by the other authorities that I have set out above as to when the discretion should be exercised. For instance, in Bridges Health, his Honour, Vice President O'Connor, was persuaded to exercise the discretion largely in order to remedy a shortfall in the medical evidence going to causation.[72] Similarly in Simounds, where Pidgeon IC further noted as relevant the fact that the application was not a mere ‘fishing expedition’ and that the Commission would be assisted by the proposed expert report.[73] A lack of clear medical evidence going to the question 1ausationn was a key reas‘n to exercising the discretion to order a medical examination for Dwyer IC in RW & G Johnson,[74]  for Black IC in Serco,[75] and for Fisher IC in Carpenter Investments.[76]
  1. [43]
    I acknowledge the inconvenience to Mr Stewart and appreciate his reluctance to attend a medical examination. However, I do not have any of the sort of evidence before me the likes of which Fisher IC referred to in Waugh. In that case, Fischer IC observed that Ms Waugh would have had to undergo a significantly stressful process of yet again relating her story involving psychological stressors.[77] Further tipping the scales against an exercise of the discretion in Waugh, Fisher IC found that the existing medical evidence was sufficient and that the case largely turned on the reasonableness of management action.[78] I have before me a very different case to the one in Waugh.
  1. [44]
    As Thompson IC observed in Aldi Stores, any inconvenience to the worker can be overcome by ensuring they have reasonable notice as to when they must attend an appointment.[79] I do not agree that 48 hours notice is sufficient. A week’s notice is plenty of time for Mr Stewart to organise his affairs so that he can attend the appointment.
  1. [45]
    No hearing dates are set for this matter. There is no suggestion that a report would be delivered so close to a hearing that its production might either be relatively useless or result in vacating those dates. Hence, this is not a Yarrabee Coal Company situation.[80] As Dwyer IC observed in RW & G Johnstone, a relatively modest delay in order to choose a particular expert to provide relevant evidence is not prejudicial if done so in the early stages of the proceedings.[81] That is the case here. 
  1. [46]
    Nor is this a situation such as Black IC dealt with in Whitsunday Housing where the evidence clearly demonstrated that any further report was unlikely to come up with a different conclusion to that within the evidence already available.[82]

Conclusion

  1. [47]
    The discretion is enlivened because there are, I find, apparent shortfalls in the medical expert evidence going to the issues of Mr Stewart’s condition at relevant times as well as the cause, nature and extent of any injury he sustained. This is an appropriate case to exercise that discretion because provision of a report such as the Appellant is seeking should remedy those shortfalls. The application is therefore granted.

Orders

  1. Pursuant to section 556 of the Workers' Compensation and Rehabilitation Act 2003, Mr Ross Stewart must submit to a medical examination by either Dr Peter Boys or Dr Hugh English for the purposes of either of those doctors preparing a medico-legal report to be used in the Queensland Industrial Relations Commission in proceedings WC/2024/122.
  2. The Appellant is to provide at least one week's notice to Mr Stewart of the date and time of the medical examination report appointment referred to above in order 1, however, that medical examination report appointment must occur no later than 15 February 2025.
  3. The cost of the medical examination report appointment, production of any report and any of Mr Stewart's reasonable travel costs to and from such appointment are to be paid by the Appellant.
  4. Should Mr Stewart, without reasonable excuse, fail to attend the scheduled medical examination report appointment referred to in order 1, he must reimburse the Appellant within 28 days for any costs reasonably incurred by it in relation to that failure.
  5. Any medical examination report that is produced to the Appellant pursuant to order 1, must be provided to the Respondent within 7 days after the receipt of that report by the Appellant.
  6. Orders numbered 6 through to 12 inclusive contained within the directions order dated 26 June 2024 are vacated.
  7. The matter be listed for mention on 16 December 2024 at 10.00 AM for timetabling.
  8. Costs be reserved.

Footnotes

[1] [2020] QIRC 9 ('Bridges Health').

[2] Ibid [25].

[3] Ibid [21].

[4] Ibid [18]-[19].

[5] Ibid [20], citing Atlas Marine International Pty Ltd v Q-COMP [2013] QIRC 61, [21] ('Atlas Marine').

[6] Atlas Marine (n 5) [21].

[7] [2016] ICQ 010 ('Mahaffey').

[8] Bridges Health (n 1) [23], citing Mahaffey (n 7) [10]-[11].

[9] [2015] QIRC 139.

[10] Ibid [71].

[11] Ibid [56], [64]-[69].

[12] Sharples v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 22, [16].

[13] [2023] QIRC 245 (‘Simounds’).

[14] Ibid [50].

[15] Ibid [59].

[16] Ibid [63]-[64].

[17] Ibid [63]-[64].

[18] Ibid [58].

[19] Ibid [58].

[20] Ibid [64].

[21] Ibid [64].

[22] Ibid [65]-[67].

[23] Ibid [68].

[24] Ibid [71].

[25] Ibid [72].

[26] Ibid [73].

[27] Ibid [74].

[28] Ibid [74].

[29] [2022] QIRC 78 ('RW & G Johnston').

[30] Ibid [34].

[31] Ibid [16].

[32] Ibid [14].

[33] Ibid [14].

[34] Ibid [18]-[23].

[35] Ibid [24].

[36] Ibid [24].

[37] Ibid [26].

[38] Ibid [30]-[31].

[39] Ibid [32], citing Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 28 ('Yarrabee Coal Company').

[40] [2023] QIRC 163.

[41] Ibid [52].

[42] Ibid [29], [30].

[43] [2019] QIRC 51 ('Aldi Stores').

[44] Ibid [1], [71].

[45] Ibid [55].

[46] Ibid [61].

[47] Ibid [63].

[48] Ibid [68].

[49] Ibid [15].

[50]  Yarrabee Coal Company (n 39).

[51] Ibid [24]-[28].

[52] [2018] QIRC 16 (‘Whitsunday Housing’).

[53] Ibid [24].

[54] Ibid [9]-[12].

[55] Ibid [13]-[21].

[56] [2017] QIRC 114 ('Serco').

[57] Ibid [1]-[7], [26].

[58] Ibid [22].

[59] [2014] QIRC 162 ('Carpenter Investments').

[60] Ibid [5].

[61] Ibid [6].

[62] Ibid [12].

[63] Ibid [14]-[18].

[64] [2014] QIRC 90 (‘Waugh’).

[65] Ibid [24]-[26].

[66] Ibid [27].

[67] Citing Aldi Stores (n 43) [26].

[68] Citing Aldi Stores (n 43) [61].

[69] Citing Aldi Stores (n 43) [15], [68].

[70] RW & G Johnston (n 29) [14].

[71] Ibid [64].

[72] Bridges Health (n 1) [21].

[73] Simounds (n 13) [75].

[74] RW & G Johnson (n 29) [18]-[23].

[75] Serco (n 56) [22].

[76] Carpenter Investments (n 59) [6], [12].

[77] Waugh (n 64) [24]-[27].

[78] Waugh (n 64) [24]-[27].

[79] Aldi Stores (n 43) [15].

[80] Yarrabee Coal Company (n 39).

[81] RW & G Johnson (n 29) [31]-[32].

[82] Whitsunday Housing (n 52) [13]-[21].

Close

Editorial Notes

  • Published Case Name:

    SAMI Bitumen Technologies Pty Ltd v Workers' Compensation Regulator

  • Shortened Case Name:

    SAMI Bitumen Technologies Pty Ltd v Workers' Compensation Regulator

  • MNC:

    [2024] QIRC 290

  • Court:

    QIRC

  • Judge(s):

    Pratt IC

  • Date:

    11 Dec 2024

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
Aldi Stores (A Limited Partnership) v Workers' Compensation Regulator [2019] QIRC 51
2 citations
Jump To
Cite 1 - [2019] QIRC 51
Cite 2 - [2019] QIRC 51
Atlas Marine International Pty Ltd v Q-COMP [2013] QIRC 61
2 citations
Jump To
Cite 1 - [2013] QIRC 61
Cite 2 - [2013] QIRC 61
Bridges Health & Community Care Ltd v Workers' Compensation Regulator [2020] QIRC 9
2 citations
Jump To
Cite 1 - [2020] QIRC 9
Cite 2 - [2020] QIRC 9
Carpenter Investments (Qld) Pty Ltd t/a Lockyer Car & Dog Wash v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 162
2 citations
Jump To
Cite 1 - [2014] QIRC 162
Cite 2 - [2014] QIRC 162
RW & G Johnston Pty Ltd v Workers Compensation Regulator [2022] QIRC 78
2 citations
Jump To
Cite 1 - [2022] QIRC 78
Cite 2 - [2022] QIRC 78
Serco Australia Pty Ltd v Workers' Compensation Regulator [2017] QIRC 114
2 citations
Jump To
Cite 1 - [2017] QIRC 114
Cite 2 - [2017] QIRC 114
Sharples v Workers' Compensation Regulator [2015] ICQ 22
1 citation
Jump To
Cite 1 - [2015] ICQ 22
Simon Blackwood (Workers' Compensation Regulator) v Sharples [2015] QIRC 139
2 citations
Jump To
Cite 1 - [2015] QIRC 139
Cite 2 - [2015] QIRC 139
State of Queensland (State Library of Queensland) v Astrid Waugh and Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 90
2 citations
Jump To
Cite 1 - [2014] QIRC 90
Cite 2 - [2014] QIRC 90
Wang v Workers' Compensation Regulator (No. 2) [2023] QIRC 163
2 citations
Jump To
Cite 1 - [2023] QIRC 163
Cite 2 - [2023] QIRC 163
Whitsunday Housing Company Ltd v Workers' Compensation Regulator [2018] QIRC 16
2 citations
Jump To
Cite 1 - [2018] QIRC 16
Cite 2 - [2018] QIRC 16
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
2 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10
Workers' Compensation Regulator v Simounds [2023] QIRC 245
2 citations
Jump To
Cite 1 - [2023] QIRC 245
Cite 2 - [2023] QIRC 245
Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 28
2 citations
Jump To
Cite 1 - [2014] QIRC 28
Cite 2 - [2014] QIRC 28

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.