Alborough v Workers' Compensation Regulator - [2019] ICQ 20

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Alborough v Workers’ Compensation Regulator [2019] ICQ 20

PARTIES:

TYSON ALBOROUGH

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NOS:

C/2018/20 and C/2018/21

PROCEEDING:

Appeal

DELIVERED ON:

10 December 2019

HEARING DATE:

21 March 2019

MEMBER:

Martin J, President

ORDERS:

1. Appeal C/2018/20 is dismissed.

2. Appeal C/2018/21 is dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR – TO INJURY – where the appellant claimed for a back injury said to have arisen from a period of inactivity while awaiting surgery for a hernia and while convalescing from that surgery – where the appellant further claimed for anxiety and depression following the surgery for the hernia – where the appellant contended in the Queensland Industrial Relations Commission that the inactivity was a significant contributing factor to his back injury – where the Vice President found otherwise – whether the evidence compelled a finding that inactivity was a significant contributing factor to the appellant’s back injury – whether the Vice President erred

Workers Compensation and Rehabilitation Act 2003, s 561

CASES:

Commissioner of Taxation v Desalination Technology Pty Ltd (2015) 66 AAR 553; [2015] FCAFC 96, cited

Davidson v Blackwood [2014] ICQ 008, cited

Nutley v Workers’ Compensation Regulator [2019] ICQ 002, cited

Tame v New South Wales (2002) 211 CLR 317, cited

Tyson Alborough v Workers’ Compensation Regulator [2018] QIRC 110, related

APPEARANCES:

M Horvath and S Lamb instructed by Nathan Lawyers for the appellant in both appeals

S P Gray directly instructed by the Workers’ Compensation Regulator in respect of both appeals

Tyson Alborough was employed by Woolworths Limited as a retail assistant in BWS, a retailer of beer, wine and spirits. Two appeals to this court, from a decision of the Queensland Industrial Relations Commission, relate to injuries said to have arisen out of, or in the course of, that employment.
For the reasons set out below, each of these appeals is dismissed.
Background to the injuries
A very detailed chronology of Mr Alborough’s injuries, the actions which were taken, and the examinations he underwent, was set out in the reasons of the Vice President.[1] For the purposes of this appeal, the following will suffice. In November 2014, the appellant applied for compensation for a right side inguinal hernia said to have been sustained during the course of his employment. The self-insurer accepted the claim and benefits were paid. The appellant then complained of a back injury said to have arisen from a period of inactivity while awaiting surgery for his hernia and while convalescing from that surgery. In April 2015, the self-insurer rejected that application. The review was unsuccessful. That leads to the appeal in C/2018/20.
[1] [2018] QIRC 110 at [13].
At the same time the self-insurer rejected the claim for the lower back injury, it also rejected a claim for compensation for anxiety and depression following the surgery for the hernia. That…

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.

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Details

Case: [2019] ICQ 20
Decision Date: 10 December 2019

CaseChat Overview and Summary

In the appeal of Alborough v Workers' Compensation Regulator, the appellant contested the findings of the Vice President of the Queensland Industrial Relations Commission regarding his entitlement to workers' compensation. The appellant claimed compensation for a back injury sustained during a period of inactivity while awaiting surgery for a hernia and while recovering from that surgery. Additionally, the appellant sought compensation for anxiety and depression following the hernia surgery. The Vice President had ruled against the appellant’s claims, finding that the inactivity was not a significant contributing factor to the back injury.

The primary legal issues in the appeal were whether the Vice President erred in her findings and whether the evidence compelled a conclusion that inactivity was a significant contributing factor to the appellant’s back injury. The court had to determine if the Vice President's approach to the evidence was correct and if her findings were consistent with the evidence provided. The appellant argued that the Vice President applied an incorrect test, but this was contradicted by other submissions where the appellant acknowledged that the Vice President had posed the correct onus and test.

The court found that the Vice President had conducted a thorough examination of the evidence and her conclusions were consistent with the bulk of accepted evidence. The court held that it is not the role of expert witnesses to determine if a particular event is a significant contributing factor; instead, this is a decision for the Commission based on the evidence. The court dismissed the appeal, affirming the Vice President's findings that the inactivity was not a significant contributing factor to the back injury.

ORDERS:
1. Appeal C/2018/20 is dismissed.
2. Appeal C/2018/21 is dismissed.

Orders

Orders of the court

1. Appeal C/2018/20 is dismissed.

2. Appeal C/2018/21 is dismissed.

Background

Background to the litigation

For the reasons set out below, each of these appeals is dismissed.Background to the injuries A very detailed chronology of Mr Alborough’s injuries, the actions which were taken, and the examinations he underwent, was set out in the reasons of the Vice President.[1] For the purposes of this appeal, the following will suffice. In November 2014, the appellant applied for compensation for a right side inguinal hernia said to have been sustained during the course of his employment. The self-insurer accepted the claim and benefits were paid. The appellant then complained of a back injury said to have arisen from a period of inactivity while awaiting surgery for his hernia and while convalescing from that surgery. In April 2015, the self-insurer rejected that application. The review was unsuccessful. That leads to the appeal in C/2018/20. [1] [2018] QIRC 110 at [13]. At the same time the self-insurer rejected the claim for the lower back injury, it also rejected a claim for compensation for anxiety and depression following the surgery for the hernia. That leads to the appeal C/2018/21.Appeal principles The appellant appears to have proceeded on the basis that the consideration in Davidson v Blackwood[2] of the nature of an appeal by way of rehearing also defined the grounds upon which an appeal may be brought. It does not. Section 561(2) of the Workers Compensation and Rehabilitation Act 2003 provides that the Industrial Relations Act 2016[3] applies to these appeals. This has been made clear on a number of occasions.[4] Discussion in other cases where reference was made to broader grounds of appeal was in the context of consideration of the meaning of an appeal by way of rehearing. [2] [2014] ICQ 008 at [10].[3] And, before the Industrial Relations Act 2016, the Industrial Relations Act 1999.[4] See, for example, Nutley v Workers’ Compensation Regulator [2019] ICQ 002 at [9]. The respondent’s case was that no error, whether of fact or law, was disclosed but did not specifically assert that any of the grounds advanced by the appellant were unavailable. Whether a question of mixed fact and law is sufficient to enliven the jurisdiction of this court was not the subject of submission. Similarly, whether there must be a “pure” question or error of law was not argued.[5][5] See, for example, Commissioner of Taxation v Desalination Technology Pty Ltd (2015) 66 AAR 553; [2015] FCAFC 96. In the appellant’s written submissions it was argued that the Vice President had applied an incorrect test when arriving at her conclusions. Although that was not made explicit in the application to appeal, it does constitute an assertion of an error of law. That assertion, though, was directly contradicted by another submission made by the appellant to the effect that the Vice President had “posed the correct onus and test”.The grounds of appeal In Appeal C/2018/20 the appellant refers to the findings of the Vice President (having accepted the evidence of Associate Professor Williams) that:(a) the inactivity due to the hernia and recovering from the hernia surgery probably tipped the scales in favour of the appellant having lower back pain, and(b) there was a series of contributing factors to the pain and its onset and that each had a role, including his weight, aerobic pre-conditioning, smoking, psychiatric condition and a level of interactivity.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Later in his evidence, Associate Professor Williams said that “there appeared to have been a particular period of relative lack of activity, which I felt may have been a reasonable stimulus for the onset of the pain at that time. It could have occurred in the absence of that period of inactivity. It’s not possible to determine with accuracy whether that would have occurred or not.”Conclusion The decision reached by the Vice President was the product of a close examination of all the evidence before her. It was not simply the result of allowing the principal issue to be decided by expert witnesses. It is inevitable that experts will express themselves in a manner consistent with the field of endeavour in which they have the relevant expertise. It often occurs that those expressions do not marry perfectly with the way in which conditions are expressed in the legislation. It is for the Commission to decide these issues, with the assistance of medical opinion, and after weighing up those matters which are accepted and those which are not. As was said in Davidson v Blackwood[9] it is not for expert witnesses to determine whether or not a particular matter is a significant contributing factor, it is for the Commission to do so on the basis of the evidence received.[9] [2014] ICQ 008. In this case, the appellant has not demonstrated any error in the approach taken by the Vice President to the evidence before her. Her findings were consistent with the bulk of the accepted evidence and were not inconsistent with other findings that she had made. To say, as Associate Professor Williams said, that some particular event was the “straw that broke the camel’s back” does not, as the appellant appears to suggest, elevate that particular event to being a significant contributing factor. That is just an example of the approach which I do not accept in this case. The application to appeal C/2018/20 is dismissed. It was common ground that the result in the first appeal would dictate the result in the second. The application to appeal in C/2018/21 is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Alborough v Workers’ Compensation Regulator [2019] ICQ 20
PARTIES:	TYSON ALBOROUGH (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent)
FILE NOS:	C/2018/20 and C/2018/21
PROCEEDING:	Appeal
DELIVERED ON:	10 December 2019
HEARING DATE:	21 March 2019
MEMBER:	Martin J, President
ORDERS:	1. Appeal C/2018/20 is dismissed. 2. Appeal C/2018/21 is dismissed.
CATCHWORDS:	WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR – TO INJURY – where the appellant claimed for a back injury said to have arisen from a period of inactivity while awaiting surgery for a hernia and while convalescing from that surgery – where the appellant further claimed for anxiety and depression following the surgery for the hernia – where the appellant contended in the Queensland Industrial Relations Commission that the inactivity was a significant contributing factor to his back injury – where the Vice President found otherwise – whether the evidence compelled a finding that inactivity was a significant contributing factor to the appellant’s back injury – whether the Vice President erred Workers Compensation and Rehabilitation Act 2003, s 561
CASES:	Commissioner of Taxation v Desalination Technology Pty Ltd (2015) 66 AAR 553; [2015] FCAFC 96, cited Davidson v Blackwood [2014] ICQ 008, cited Nutley v Workers’ Compensation Regulator [2019] ICQ 002, cited Tame v New South Wales (2002) 211 CLR 317, cited Tyson Alborough v Workers’ Compensation Regulator [2018] QIRC 110, related
APPEARANCES:	M Horvath and S Lamb instructed by Nathan Lawyers for the appellant in both appeals S P Gray directly instructed by the Workers’ Compensation Regulator in respect of both appeals