Adcock v Workers' Compensation Regulator - [2021] QIRC 227

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Adcock v Workers' Compensation Regulator [2021] QIRC 227
PARTIES:	Adcock, Malcolm (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO.:	WC/2019/64
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	25 June 2021
HEARING DATES: SUBMISSIONS:	26 and 27 October 2020 Appellant's submissions: 12 January 2021 Respondent's submissions: 27 January 2021 Appellant's submissions in reply: 10 February 2021
MEMBER: HEARD AT:	Power IC Brisbane
ORDERS:	1. That the decision of the Workers' Compensation Regulator be set aside. *2. That pursuant to s 144A of the Workers' Compensation and Rehabilitation Act 2003* (Qld), the Appellant's incapacity is determined to have ceased as at 30 November 2017.** 3. That pursuant to s 144B of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the Appellant's requirement for medical treatment continued until 27 February 2018, being 20 business days following receipt of the notice of assessment and offer pursuant to s 190. 4. That the Respondent pay the costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – cessation of compensation and benefits – whether incapacity for work had ended when weekly payments ceased – whether the requirement for medical treatment had ended when benefit ceased.
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 9, 32, 144A, 144B, 190, 211 and 226
CASES:	Adcock v Workers' Compensation Regulator [2017] QIRC 086 Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229 Brown v Dunn (1893) 6 R 67 Colbran v Workers' Compensation Board of Queensland (1996) 152 QGIG 1180 Commonwealth v Verwayen [1990] HCA 39 Davidson v Blackwood [2014] ICQ 008 Jewsbury v Workers' Compensation Regulator [2019] QIRC 83 Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301 Thompson v Armstrong & Royce Pty Ltd (1950) 81 CLR 585
APPEARANCES:	Mr A. Wright of Boylan Lawyers for the Appellant. Ms D. Callaghan of Counsel directly instructed by the Respondent.

Reasons for Decision
Introduction

Mr Malcolm Adcock ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to confirm an earlier decision of WorkCover Queensland ('WorkCover') to cease weekly payments and benefits arising from an injury that had been accepted as compensable under the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').
The Appellant had been employed by KJM Contractors Pty Ltd ('the Employer') as a camp cook when he sustained an injury to his left ankle, described as 'left lateral ligament complex strain', on 25 August 2015 while carrying a box out of the freezer.
The Appellant lodged an application for compensation on 29 October 2015 which was rejected by WorkCover. Following an application to the Respondent for review of this decision, the Respondent referred the matter back to WorkCover for further investigations. After further investigations were made, WorkCover, again, rejected the Appellant's application with this decision confirmed by the Respondent upon review. The Respondent's decision was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adcock v Workers' Compensation Regulator

Details

AGLC: Adcock v Workers' Compensation Regulator [2021] QIRC 227
Case: [2021] QIRC 227
Decision Date: 25 June 2021

CaseChat Overview and Summary

In the case of Adcock v Workers' Compensation Regulator, the Appellant appealed against the decision of the Workers' Compensation Regulator, challenging the cessation of weekly payments and benefits. The central dispute revolved around whether the Appellant's incapacity for work had indeed ended on the date when the weekly payments were terminated, and if the requirement for medical treatment had ceased when the benefits were stopped. The Queensland Industrial Relations Commission was tasked with resolving these issues.

The court had to determine two primary legal issues. Firstly, whether the Appellant's incapacity for work had ended when the weekly payments were ceased by the Regulator. Secondly, whether the requirement for medical treatment had ended when the benefits were stopped. The Appellant argued that his incapacity for work had not ceased by the date of the cessation of weekly payments, and that he required ongoing medical treatment. The Respondent contended that the Appellant's incapacity for work had ended on 30 November 2017, and that there was no longer a requirement for medical treatment beyond that date.

The Commission considered the medical evidence provided by both parties. Dr. Anthony Grant, the Appellant's general practitioner, opined that the Appellant was fit for modified duties as of 12 October 2017, suggesting that podiatry intervention would assist. On the other hand, Dr. Ng, an occupational physician, indicated that the Appellant was ready to participate in a return-to-work program and achieve his normal duties as of 17 November 2017. However, the Commission found that the Appellant's incapacity for work had ceased as of 30 November 2017. The court also determined that the requirement for medical treatment continued until 27 February 2018, which was 20 business days following receipt of the notice of assessment and offer.

The final orders of the Commission were that the decision of the Workers' Compensation Regulator be set aside. The Appellant's incapacity was determined to have ceased as at 30 November 2017, and the requirement for medical treatment continued until 27 February 2018. The Respondent was ordered to pay the costs of and incidental to the appeal.

Orders

Orders of the court

1. That the decision of the Workers' Compensation Regulator be set aside.

2. That pursuant to s 144A of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the Appellant's incapacity is determined to have ceased as at 30 November 2017.

3. That pursuant to s 144B of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the Appellant's requirement for medical treatment continued until 27 February 2018, being 20 business days following receipt of the notice of assessment and offer pursuant to s 190.

4. That the Respondent pay the costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A similar definition was outlined by the High Court in Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229 ('Arnotts'):…the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work.[6] Medical Evidence[6] Arnotts, 233.Dr Anthony Grant The Appellant's treating general practitioner, Dr Grant gave oral evidence for the Appellant and his medical certificates, records, and two reports to WorkCover were admitted into evidence. Dr Grant had seen the Appellant on five occasions prior to August 2016. Dr Grant's report states that on the five occasions in 2016, the Appellant was not fit to return to normal duties. He certified the Appellant as fit for light duties as from 1 October 2015, with the exception of one week (30 November 2015 to 4 December 2015) when he was certified unfit for work. Dr Grant assessed the Appellant again on 12 October 2017 and considered that he was fit for modified duties. The suggested modification allowed for increased rest breaks if the Appellant returned to his previous occupation where he spent long shifts standing. The Appellant did not obtain further worker's compensation certificates from Dr Grant in relation to any incapacity after the certificate dated 21 June 2016. Dr Grant opined that Dr Anthony Wilson's indication that the Appellant would have been fit for duties 16 to 20 weeks after the injury was related to restricted duties and not to normal duties. He agreed with Dr Wilson's suggestion that podiatry intervention would assist, as at the time of the report on 30 April 2018. Dr Grant's progress notes indicates that on 31 May 2018, the Appellant had a cortisone injection to his left ankle, with the reason stated as foot pain with walking and prolonged standing. The note also shows the results of the ultrasound which state that there are: mild degenerative changes and capsular thickening. There are also further degenerative changes of the 2nd and 3rd tarsometatarsal joints. Dr Ng is an occupational physician who gave oral evidence for the Respondent with the following documents tendered into evidence:·two reports dated 24 February 2016 and 18 April 2016;[7]·medical report to the Appellant's solicitors dated 10 November 2017;[8]·file note of a telephone conference with the Respondent's legal representative on 13 August 2019;[9] and·clinical records.[10][7] Exhibits 13 and 14 respectively.[8] Exhibit 16.[9] Exhibit 17.[10] Exhibit 15. The Appellant attended Dr Ng on 24 February 2016 and completed a questionnaire describing his activities of daily living. The Appellant stated that he could perform all of the stated activities including walking, standing, driving with "no problems" but with constant pain. Dr Ng's report states that the non-work-related factors "are his body habitus and foot mechanics (flat/pronated feet) which is slowing his recovery".[11][11] Exhibit 13, page 6.

Decision

Reasons for decision

I make the following orders:1.That the decision of the Workers' Compensation Regulator be set aside.2.That pursuant to s 144A of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the Appellant's incapacity is determined to have ceased as at 30 November 2017.3.That pursuant to s 144B of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the Appellant's requirement for medical treatment continued until 27 February 2018, being 20 business days following receipt of the notice of assessment and offer pursuant to s 190.4.That the Respondent pay the costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

Ratio Decidendi

Legal Principle Established

The Appellant provided the following submissions in reply, in summary:·the Respondent incorrectly submits that the appeal concerns entitlement to weekly benefits pursuant to s 144A, however the appeal is also concerned with entitlement to medical expenses pursuant to s 144B of the Act; ·the RTW plan was not made in accordance with the Act with Ms Budd located in South Australia and not Queensland;·the Appellant made clear that he was willing to adhere to any RTW program correctly implemented, but this never occurred; ·penalties apply in relation to failures to comply with the employer's obligation to appoint a RTW co-ordinator in accordance with s 226 of the Act; ·Dr Wilson stated that the Appellant could have, as at 30 November 2017, performed modified duties as a chef;·the recommendation of modified duties is consistent with the finding of an incapacity; ·at the date of the hearing, Dr Wilson accepted that there was an ongoing partial incapacity, though he did accept in a file note dated 7 August 2019 that he had stated that the Appellant's incapacity ceased on 30 November 2017; ·although Dr Wilson changed his opinion on the date the Appellant's incapacity ceased to 30 November 2017, the Respondent's case is still that the Appellant's entitlement to weekly payments ended in August 2016 and not 30 November 2017;·in response to the Respondent's submission that the Appellant was evasive in his responses, the Appellant refers to the 2017 decision in Adcock v Workers' Compensation Regulator [2017] QIRC 086 at [36], in which Commissioner Thompson made a positive assessment of the Appellant;·the Respondent submits that:Dr Ng confirmed his opinion that as at the consultation on 17 November 2017, the history, examination, report from a Dr Grant and ultrasound results indicated that the appellant was ready to participate in return to work and at the end of it, achieve his normal duties.[25] ·the Respondent's submissions suggest that the Commission should estimate a date (after November 2017, and after a RTW program would have been initiated) when the Appellant would be able to perform normal duties. The Respondent's submissions do not argue that the Appellant's injuries stopped prior to 30 November 2017 and only go so far as to say that the accepted injury stopped, at the earliest, on 30 November 2017;·the submission that the Appellant was evasive was not put to the Appellant by the Respondent at any point during the hearing;·with respect to the effect of the Appellant's weight gain, the Commissioner may take judicial notice as to the consequences for one's weight when a person suffers from an incapacity that restricts his or her movement; and·the medical evidence establishes a need for medical treatment for the Appellant after 21 February 2018, which included, but was not limited to, the operation of the cortisone injections on 31 May 2018 and 4 June 2018, respectively, as well as the recommendations for podiatry intervention.[25] Respondent's closing submissions [32].Consideration