Ludwig v Workers' Compensation Regulator
[2025] QIRC 239
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- Unreported Judgment
- Ludwig v Workers' Compensation Regulator[2025] QIRC 239
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Ludwig v Workers' Compensation Regulator[2025] QIRC 239
Ludwig v Workers' Compensation Regulator[2025] QIRC 239
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ludwig v Workers' Compensation Regulator [2025] QIRC 239 |
PARTIES: | Ludwig, Trevor (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2024/136 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 5 August 2025 |
HEARING DATE: | 5 August 2025 |
MEMBER: HEARD AT: | O'Connor VP Brisbane |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – where appellant sustained injury to lower back – where appellant claims he was physically assaulted at work – where WorkCover rejected appellant's claim for compensation – where there was a verbal altercation – where appellant has significant prior injuries – where respondent conceded appellant has suffered an injury – whether the injury arose out of or in the course of employment – whether employment was a significant contributing factor to the injury – where the appellant is bound by the case as expressed in their statement of facts and contentions – where tribunal of fact must be persuaded of the occurrence of a fact |
LEGISLATION: | Workers' Compensation and Rehabilitation Act s 32 |
CASES: | Briginshaw v Briginshaw (1938) 60 CLR 336 Carlton v Simon Blackwood (Workers' Compensation Regulator) [2017] ICQ 1 Chattin v WorkCover Queensland (1999) 161 QGIG 531 Helton v Allen (1940) 63 CLR 691 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 |
APPEARANCES: | Mr Trevor Ludwig, the Appellant, on his own behalf Ms M. Stone of counsel, directly instructed by the Workers' Compensation Regulator |
Reasons for Decision
Ex Tempore
- [1]Trevor Glenny Ludwig appeals the decision of the Workers' Compensation Regulator dated 26th of June 2024 that rejected his application for compensation in accordance with section 32 of the Workers' Compensation and Rehabilitation Act 2003 ('WCR Act').
- [2]The Appellant claimed that he suffered a lower back injury after he was allegedly assaulted on the 27th of February 2024 whilst he was employed as a farmhand with Seth Investments Proprietary Limited. The Appellant commenced employment with Seth Investments in or about October of 2023 and remained in employment until the incident on 27 February 2024. The Appellant ordinarily commenced his work day at 6 am and finished around 2 pm.
- [3]On the day in question, he was asked by Mr Terry Tang to do some slashing of long grass. The Appellant said that the area was difficult to slash because the grass was thick, there were ruts and the ground was uneven. The Appellant undertook the slashing work. Mr Tang approached the Appellant whilst the Appellant was on his break. Mr Tang was agitated. Mr Tang said that he told the Appellant there was water leaking on the field and showed him where it was.
- [4]The Appellant had damaged the risers or starters whilst he was undertaking the slashing work. Mr Tang said that he told the Appellant that he would fix the risers, but asked him not to do it again. Mr Tang said he spent the morning repairing the risers. After undertaking the repairs, sometime around 11.30 am, Mr Tang put bamboo and an orange tag on them to indicate where they were located in the long grass. After lunch, Mr Tang said he observed the risers had been cut. He said that he started to get angry.
- [5]Mr Tang drove down to where the Appellant was working and asked him to stop the tractor and get out. The Appellant told the Commission he was approached by Mr Tang, who was angry, was yelling and screaming and waving his arms around. Mr Tang said he used the words that were 'not very nice' to the Appellant. The Appellant said that he tried to explain to Mr Tang that it was an accident. The Appellant said that he was about a metre away from Mr Tang when the altercation occurred.
- [6]The Appellant demonstrated that as Mr Tang approached him, he put his arms up. Mr Tang told the Appellant to stay back and not to touch him, as he would 'lose his job' if he hit him. The Appellant said that Mr Tang assaulted him in what he described as a 'Hong Kong Phooey' move. The Appellant said that Mr Tang had pressed the palms of his hand, against his chest. This caused the Appellant to take a step back into a rut or drain, thereby injuring his back.
- [7]The Appellant recalled that the incident happened in an area that abutted a dam. Mr Tang disputed the altercation occurred near the dam. Rather, Mr Tang's evidence was that the altercation took place on open ground and not near any ruts. Mr Tang did not see the Appellant injure himself. Whilst photographs of the site were tendered by the Appellant, no photograph was tendered by the Appellant of the site of the alleged assault.[1]
- [8]The Appellant said that after the assault, he was in excruciating pain, but despite that pain was able to get into his tractor and drive in an attempt to see Mr Sheng Wei, his supervisor. He said it was probably adrenaline that enabled him to do so. Mr Sheng Wei was not at his home, and it was not until the following morning that the Appellant had an opportunity to report the incident to him. The Appellant said that he told Mr Wei that he'd been assaulted by Mr Tang during an altercation. The Appellant said that he wanted an apology from Mr Tang.
- [9]It was put to the Appellant there was no assault and that he did not report any injury. The Appellant did not accept that he was not physically assaulted and said that he told Mr Wei that, 'his back was killing him' and that he wanted to see a doctor. Mr Tang denies he physically assaulted the Appellant. He accepts there was a verbal altercation, but he does not accept there was any assault. He further accepts that Mr Wei spoke to him regarding the incident. The Appellant attended on Dr Safwan Hayati, General Practitioner in Gin Gin, on 29 February 2024. Dr Hayati referred the Appellant to the Briz Brain & Spine Clinic.
- [10]A medical report of Dr Richard Kahler, a specialist neurosurgeon, was tendered.[2] The report sets out a history given by the Appellant. The report also outlines a significant preexisting history. This includes a spinal fusion of the L5-Sl, significant spinal degeneration of L4-L5, L3-L4, L2 and L3. There's some narrowing of the spinal cord in the L3-L4 to the left and L4 to L5 to the right, lower back pain and sciatica. The Respondent concedes that the Appellant has suffered an injury, either a new personal injury or an aggravation of an existing injury, of a physical nature related to his spine or back.
- [11]Section 32 of the WCR sets out the legislative framework. Whilst section 32(b) of the WCR requires that an aggravation be treated as an injury, it does not remove the necessity of demonstrating the injury, by way of aggravation, arose out of or in the course of a worker's employment, and that employment was a significant contributing factor to that injury. The Appellant bears the onus of establishing he's entitled to compensation. That is, it is for the Appellant to demonstrate to the Commission that the Respondent's decision was wrongly made.
- [12]The standard of proof is on the balance of probabilities. Proof on the balance of probabilities requires actual persuasion. This onus requires three questions to be answered:
- Did the Appellant suffer a personal injury, namely a lower back injury, arising from the assault?;
- Did the Appellant's personal injury arise out of or in the course of his employment; and
- Was his employment the major significant contributing factor of his injury?
- [13]What is contended by the Appellant in his Statement of Facts and Contentions is that the physical injury suffered in the event of the 27th of February 2024 resulted from what he described as an assault. It follows that the Appellant contends that his employment was a significant contributing factor to his injury, that the physical injury was an injury within the meaning of section 32 of the WCR.
- [14]The scope of the hearing before the Commission is determined by the Statement of Facts and Contentions. The Statement of Facts and Contentions set the boundaries of appeals before the Commission as Martin J wrote in Carlton v Simon Blackwood (Workers' Compensation Regulator),[3] and as the Respondent correctly argues, the Appellant is bound by the case as expressed by him in the Statement of Contentions. It is well accepted that an Appellant's case has to be known before the hearing starts.
- [15]As his Honour wrote in Carlton, the Commission cannot allow a case to 'evolve' and place the Respondent in a position of having to contend with the shifting sands of an undefined argument. If the Appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment.
- [16]
The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probable than not that there is a causal relationship between the accident and the post- and the plaintiffs post-accident condition.
- [17]
A number of cases of high authority insist that for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of existence of that fact.[6]
- [18]The court went on to conclude that the tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found.
- [19]On their Honours' approach, what is required is a determination of the respective probabilities of the events having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion. Applying the proposition from Chattin, creates a difficulty for the Appellant. In order to find a causal relationship between the alleged incident and the post-incident condition, there must be, of course, an incident.
- [20]I am unable to conclude, in fact, an assault actually occurred as alleged by the Appellant on the 27th of February 2024. Whilst I accept that there was a verbal altercation between the Appellant and Mr Tang, I do not accept that this verbal altercation involved any physical assault as alleged. It may well be the case that the Appellant injured his back at work by stepping into a rut or a drain, but that was not as a consequence of any assault. That is not the case advanced by the Appellant. Having considered the evidence before the Commission, I'm not satisfied the Appellant has discharged the necessary onus of proving, on the balance of probabilities, that the Respondent's decision should be set aside and the Appellant's claim is one for acceptance.
Order
- That the appeal (WC/2024/136) is dismissed.
- That the Respondent's Review decision dated 26 June 2024 is confirmed.
- The Appellant is to pay the Respondent's costs of the hearing to be agreed or failing agreement, to be the subject of a further application to the Commission.
Footnotes
[1] Exhibit 1.
[2] Exhibit 2.
[3] [2017] ICQ 1.
[4] (1999) 161 QGIG 531, 532.
[5] [2008] NSWCA 246.
[6] See also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 33. His Honour's statement was
approved by the majority (Dixon, Evatt and Mc Tiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.