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

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Aldi Stores (A Limited Partnership) v Workers' Compensation Regulator [2019] QIRC 051
PARTIES:	Aldi Stores (A Limited Partnership) (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NOS:	WC/2017/108 and WC/2017/163
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	25 March 2019
HEARING DATES:	7 February 2019 18 February 2019 (Appellant's Submissions) 1 March 2019 (Quelch's Submissions) 7 March 2019 (Appellant's Reply Submissions)
MEMBER: HEARD AT:	Thompson IC Brisbane
ORDERS:	1. Application granted. 2. Pursuant to s 556 of the Workers' Compensation and Rehabilitation Act 2003, Linda Quelch is required to submit to a medical examination with either Dr Prue Fitzpatrick, Orthopaedic Surgeon or Dr Brett Halliday, Orthopaedic Surgeon at a time and place to be determined. 3. The Applicant is required to make the arrangements regarding the appointment and in doing so provide reasonable notice to Linda Quelch of the date, time and location of the appointment. 4. The costs of the medical examination including all reasonable travel costs to and from the medical examination are to be met by the Applicant. 5. If without reasonable excuse Linda Quelch does not attend the medical examination with either Dr Prue Fitzpatrick or Dr Brett Halliday on the date, at the time and location determined, she will be required to reimburse the Applicant for costs reasonably incurred in relation to the medical examination. 6. The report provided at the conclusion of the examination is to be provided to the Regulator no later than seven days after such report has been received. 7. The party's costs of this application be reserved to the Member hearing the appeal.
CATCHWORDS:	WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ INDUSTRIAL LAW - Application in existing proceedings - Medical examination - Legislation - Application granted pursuant to conditions of Order.
LEGISLATION: CASE:	Workers' Compensation and Rehabilitation Act 2003, s 32, s 108, s 552, s 556 Charters Towers Regional Council v Workers' Compensation Regulator [2019] QIRC 027
APPEARANCES:	Mr S. Gray of Counsel, instructed by Hentys Lawyers for the Appellant. Ms A. Schultz of the Workers' Compensation Regulator, Respondent. Ms L. Quelch.

Reasons for Decision

Background

An Application in Existing Proceedings was lodged with the Industrial Registrar on 17 December 2018 by Aldi Stores (A Limited Partnership)(applicant) in which they sought pursuant to s 556 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) that the worker Linda Quelch (Quelch) submit to a medical examination with either Dr Prue Fitzpatrick (Dr Fitzpatrick), Orthopaedic Surgeon or Dr Brett Halliday (Dr Halliday), Orthopaedic Surgeon, on a date, at a time and at a location as set out in Annexure 1.
The costs of the workers' medical examination with either medical specialist including reasonable travel costs, incurred by the worker, to and from the medical examination be paid by the applicant.
If the worker without reasonable excuse does not attend the medical examination with either medical practitioner at the date, time and location then the worker be required to reimburse the applicant for costs reasonably incurred in…

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] QIRC 51
Decision Date: 25 March 2019

CaseChat Overview and Summary

The applicant, Aldi Stores (A Limited Partnership), sought an order that the worker, Linda Quelch, undergo an independent medical examination to resolve disputes about the nature and extent of her injuries. This application was made in the context of ongoing workers' compensation claims that had been accepted by WorkCover. The application was heard in the Queensland Civil and Administrative Tribunal (QCAT), which was asked to decide whether the provisions of s 556(1) of the Workers' Compensation and Rehabilitation Act 2003 were satisfied, making it appropriate to order the medical examination. The section provides that an order for additional medical evidence can be made if the condition of the worker or the cause, nature, or extent of the injury is relevant to the appeal.

The key issue was whether the medical evidence was sufficiently ambiguous to warrant an additional examination. The Tribunal considered that there were legitimate concerns about the consistency of the medical evidence, particularly regarding the cause, nature, and extent of the worker's injuries. This ambiguity was sufficient to meet the threshold requirements of s 556(1)(b) of the Act. Additionally, the worker had already undergone two independent medical evaluations, which did not alleviate the need for further clarity on the contested issues. The Tribunal concluded that the application met the statutory criteria and granted the application with specific conditions to ensure the worker's rights and the fairness of the process were upheld.

The Tribunal granted the application and ordered that the worker undergo a medical examination with either Dr Prue Fitzpatrick or Dr Brett Halliday, both Orthopaedic Surgeons. The costs of the examination, including reasonable travel costs, were to be borne by the applicant. The Tribunal also stipulated that if the worker failed to attend the examination without reasonable excuse, she would be required to reimburse the applicant for the incurred costs. Furthermore, the report from the examination had to be provided to the Regulator within seven days of its completion. Finally, the costs of the application were reserved to the Member hearing the appeal.

Orders

Orders of the court

1. Application granted.

2. Pursuant to s 556 of the Workers' Compensation and Rehabilitation Act 2003, Linda Quelch is required to submit to a medical examination with either Dr Prue Fitzpatrick, Orthopaedic Surgeon or Dr Brett Halliday, Orthopaedic Surgeon at a time and place to be determined.

3. The Applicant is required to make the arrangements regarding the appointment and in doing so provide reasonable notice to Linda Quelch of the date, time and location of the appointment.

4. The costs of the medical examination including all reasonable travel costs to and from the medical examination are to be met by the Applicant.

5. If without reasonable excuse Linda Quelch does not attend the medical examination with either Dr Prue Fitzpatrick or Dr Brett Halliday on the date, at the time and location determined, she will be required to reimburse the Applicant for costs reasonably incurred in relation to the medical examination.

6. The report provided at the conclusion of the examination is to be provided to the Regulator no later than seven days after such report has been received.

7. The party's costs of this application be reserved to the Member hearing the appeal.

Background

Background to the litigation

In determining whether an Order should be made requiring the worker to undertake an independent medical examination in the terms sought by the application, it is necessary as a threshold issue to satisfy the provisions of s 556(1)(a) or (b) of the Act:(1) This section applies if -(a)the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or(b)the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal.Background The worker in this matter had made two applications for workers' compensation which were accepted by WorkCover as being compensable. The applicant (in this proceeding) had in respect of each of the accepted claims for compensation sought that a Review be undertaken by the Regulator which in each case saw the decision of WorkCover confirmed. The chronology in respect to each claim was as follows: I am satisfied upon examination of the material relating to each of the accepted claims that the provisions of s 556(1)(b) of the Act are enlivened on the basis that the cause, nature or extent of the injuries are relevant to the appeals for the reasons they are the subject of contest between the parties. In support of the Order being sought whereby the worker would be directed to undergo an independent medical examination, the applicant had raised a number of concerns in regard to the ambiguity of the existing medical evidence relevant to the appeals. Such evidence included: The medical evidence in dispute was acknowledged in the Regulator's decision relating to the left arm shoulder injury in the following terms: In the Regulator's Statement of Facts and Contentions it was asserted in respect of the claimed injury: The worker was content with the medical evidence currently available in that it supported not only the injuries but also that the injuries were sustained in the course of her employment with Dr Cochrane in a report dated 28 February 2017 noting: In relation to the issue of permanent impairment a report had been provided by Dr Nicoll which had diagnosed an "aggravation of a pre-existing degenerative changes of the cervical spine". Also relating to the same circumstance Dr Cochrane had found whilst the condition was more of a chronic degenerative nature of which the conditions of her work would have contributed to approximately 50 per cent to the development of the degeneration. I am satisfied the applicant has established that in terms of the medical evidence currently available to the Commission there are legitimate concerns held about the consistency of that evidence that would support the application being granted.Issues for determination in the appeals The applicant relevantly identified the issues in dispute between the parties as: Clearly any additional evidence of a medical nature that may be gleaned from the worker having an independent medical examination would likely have the effect of benefiting the overall consideration of the appeals by the Commission.

Evidence

Evidence Before The Court

The relevant legislation is as follows:556 Additional medical evidence(1) This section applies if -(a)the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or(b)the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal.(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.(3)The appeal body may also, as the appeal body considers appropriate, make an order about -(a) the way, time and place of the examination; and(b) costs of the application for the order and of the examination.(4)An opinion formed on the examination must be given to the respondent and the respondent must make the opinion available to the appellant.(5) Subsection (6) applies if the claimant or worker -(a)fails, without reasonable excuse, to attend for the examination at the time and place ordered by the appeal body; or(b) having attended, refuses to be examined by a registered person; or(c) obstructs, or attempts to obstruct, the examination.(6)Any entitlement the claimant or worker may have to compensation is suspended until the claimant or worker undergoes the examination.Grounds in support of application The grounds outlined in the application, at paragraph [4] of this decision, supported the application.Regulator's Response The Workers' Compensation Regulator (Regulator) neither consented to nor opposed the application, stating that it was for the applicant to satisfy the Commission that an Order should be made. Lawyers acting for the applicant forwarded correspondence to the worker (dated 19 September 2018) requesting consent for her to undertake an independent medical examination which was declined on 29 September 2018. On 5 February 2019 the worker provided a statutory declaration in response to the application which stated amongst other things:·she had already undergone two independent medical evaluations with Dr Cochrane, Neurosurgeon and Dr Michael Maguire (Dr Maguire), Orthopaedic Surgeon;·the doctors had specialist knowledge in spinal injuries and upper limb injuries, respectively;·the worker was trying to move on with her life and had found part-time administration work with a small company that accommodates her injury;·her hours of work can vary day-to-day and she is generally given 24 hours' notice of being required to start work on any given day;·to attend a further independent medical evaluation would be very arduous in circumstances where she was trying not to compromise her relationship with her employer for reasons relating to her previous workplace injury; and·a further medical examination would be wholly unnecessary having already been assessed for her injuries. In terms of the workers' reference to having undergone "two independent medical evaluations with Drs Cochrane and Maguire" it was evident from the evidence that:

Decision

Reasons for decision

The Regulator had also accepted that in relation to the secondary injury there were issues with the medical evidence said to support the claim.Conclusion The matters at issue in the appeals, include the cause, nature and extent of the injuries as claimed by the worker were the very issues contemplated by s 556(1) of the Act. The following Orders were sought:· Pursuant to section 556 of the Worker's Compensation and Rehabilitation Act 2003, the Worker submit to a medical examination with either Dr Prue Fitzpatrick, Orthopaedic Surgeon or Dr Brett Halliday, Orthopaedic Surgeon.· The costs of the Worker's medical examination with either Dr Fitzpatrick or Dr Halliday, including the Worker's reasonable travel costs to and from the medical examination be paid by the Applicant. · If, without reasonable excuse, the Worker does not attend the medical examination with either Dr Fitzpatrick or Dr Halliday, on the date, at the time, and at the location determined, the Worker be required to reimburse the Applicant for costs reasonably incurred by it in relation to the medical examination.· The parties' costs of this application be reserved to the Commissioner hearing the appeal.Worker The worker firstly addressed the Orders that had been sought in the application and the grounds that had been specified in support of the application. On 19 September 2018 the worker had received correspondence from lawyers acting for the applicant, requesting her consent to undergo an independent medical examination. The correspondence had stated: There had been no particulars provided as to why any further medical opinions were necessary to assist in the assessment and evaluation of her medical condition. The worker forwarded an email on 26 September 2018 to the applicant's lawyers in respect of their reference in the correspondence to s 556 of the Act because she was unclear of the relevance of the proposed medical examination, having already been examined by Drs Cochrane and Maguire who were both suitably qualified experts to assess her injuries. There had been no response to email of 26 September 2018 prior to the formal application being received on 12 December 2018.Legislation Section 32(1) of the Act defines the meaning of "injury" as: Dr Alam a General Practitioner on 24 October 2016 had diagnosed a "left wrist tenosynovitis, olecranon bursitis and sub deltoid bursitis". Dr Alam had discussions with WorkCover on or around 13 December and had stated: On 10 February 2017, Dr Alam diagnosed a "C5/6 disc bulge with potential compression of the C6 existing nerve root". In a medical report dated 20 December 2016 Dr Graze an Orthopaedic Surgeon noted that the "onset of the shoulder complaint was 2 1/2 months ago" when she engaged in heavy lifting throughout a night shift. Dr Maguire in a report dated 16 February 2017 recorded that the work-related injury of the worker involved quite a repetitive process. Since the incident of 11 October 2016, she had experienced ongoing problems.Appeal number WC/2017/163

Ratio Decidendi

Legal Principle Established

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