Barra-Padilla v Workers' Compensation Regulator - [2022] QIRC 330

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Barra-Padilla v Workers' Compensation Regulator [2022] QIRC 330
PARTIES:	Barra-Padilla, Rodrigo Alex (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2019/109
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	24 August 2022
HEARING DATES: DATES OF WRITTEN SUBMISSIONS:	25, 26 and 27 October 2021 Respondent submissions, 28 February 2022 Appellant submissions, 25 March 2022 Respondent's submissions in reply, 8 April 2022
MEMBER: HEARD AT:	Pidgeon IC Brisbane
ORDERS:	1. The appeal is dismissed. 2. Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – Appeal against review decision of the Respondent – Where the Appellant has a physical injury – whether the injury arose out of, or in the course of, his employment – where Respondent contends that employment was not a significant contributing factor to the injury – appeal dismissed.
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32
CASES:	Fernandez v Tubemakers of Australia Limited [1975] 2 NSWLR 190 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NWSLR 705 Qantas Airways Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 82 Seltsam Pty Ltd v McGuinness [2000] NSWCA 29; (2000) 49 NSWLR 262 Simon Blackwood (Workers' Compensation Regulator) v Mana [2014] ICQ 27
APPEARANCES:	Mr M J Smith of counsel, instructed by Parker Simmonds Solicitors for the Appellant. Mr S P Gray of counsel, directly instructed by the Respondent.

Reasons for Decision
Introduction

Mr Rodrigo Alex Barra-Padilla commenced employment with ISS Facilities Service Australia Limited (ISS) in February 2016 and performed cleaning duties at the Griffith University Gold Coast Campus (Griffith University).
It is not in dispute that Mr Barra-Padilla is a 'worker' within the meaning of the Workers Compensation and Rehabilitation Act (the Act).
Mr Barra-Padilla made a workers' compensation claim relating to pain to both hips, the left elbow and the left shoulder. This claim was rejected and it is as a result of that decision that Mr Barra-Padilla filed this appeal.
Mr Barra-Padilla's claim relates to injuries he says he sustained as a result of duties he was performing from about July 2018 in buildings G25 and G26 at Griffith University.[1]
[1] T1-2, ll40 to 45.
The Respondent accepts that Mr Barra-Padilla developed pain in the left elbow, shoulder and hip over a period of time prior to 24 October 2018.[2]
[2] Respondent's Statement of Facts and Contentions filed 18 October 2019, page one, paragraph 5(a).
Mr Barra-Padilla says that the pain he developed in his left elbow, shoulder and hip resulted from repetitive duties he performed for his employer.[3]
[3] Appellant's statement of Facts and Contentions filed 11 September 2019 [5], [7].
Mr Barra-Padilla has described the onset of symptoms related to his diagnosed injuries as occurring whilst undertaking his employment duties, and also at home. The Respondent accepts that Mr Barra-Padilla's symptoms have occurred during the course of his employment with ISS.[4]
[4]…

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 Barra-Padilla v Workers' Compensation Regulator

Details

AGLC: Barra-Padilla v Workers' Compensation Regulator [2022] QIRC 330
Case: [2022] QIRC 330
Decision Date: 24 August 2022

CaseChat Overview and Summary

In Barra-Padilla v Workers' Compensation Regulator, the applicant appealed against a decision of the Workers' Compensation Regulator. The applicant argued that his physical injury arose out of, or in the course of, his employment, and therefore, he was entitled to workers' compensation. The Regulator contended that the applicant's employment was not a significant contributing factor to the injury.

The primary legal issue before the court was whether the applicant's employment was a significant contributing factor to his injury. The court considered the evidence of two medical experts and the submissions of both parties regarding the expert evidence. The applicant argued that the expert evidence established causation on a balance of probabilities, while the Regulator contended that the applicant's age and the common occurrence of the conditions were more likely causes.

The court found that the expert evidence did not support the applicant's claim that his employment was the cause of his injury. Dr Lingwood testified that the conditions were exceptionally common and occurred frequently in the absence of any external cause. The court held that the evidence did not show that the connection between the possible cause and the condition which occurred was sufficiently close to warrant a reasonable mind concluding that the possible was the actual cause. The court dismissed the appeal and ordered that the decision of the Workers' Compensation Regulator would stand.

Orders

Orders of the court

1. The appeal is dismissed.

2. Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Under cross-examination, Dr Lingwood was asked if in the circumstances, given the absence of any other causation, Mr Barra-Padilla's work must, on the balance of probabilities, be the cause of his current conditions.[126] Dr Lingwood replied:No. That's – like, these conditions are exceptionally common, and they occur frequently in the absence of any external cause, because the primary pathology is just underlying wear and tear and degeneration. There does not have to be any external cause for these conditions. As I've said before, there certainly are some external physical exposures which are fairly widely accepted to be associated with aggravations therefor, but I don't sort of – I don't sort of follow or support the notion that just because there has been no other external exposure found, that it must be work. If we look at risk factors for conditions in general, Mr Barra-Padilla's age is an independent risk factor. So we could just as easily argue that his age is the cause for these conditions. But as I said before, there doesn't have to be any external cause, because these are constitutional wear-and-tear type conditions.[126] T2-25 ll28-30.Submissions of the parties regarding the expert evidence The Appellant says that whilst both doctors diagnosed injuries in slightly different terms, they agree that they have essentially diagnosed the same injuries to the left shoulder and hips.[127] I agree, and note that the parties agree that Mr Barra-Padilla's injuries are as diagnosed by Dr Miller and Dr Lingwood.[127] T2-7 l26; T2-17 ll15-35. The Appellant says that the overarching principles which will 'govern the commission's deliberations' are:[128]a) The fact that experts do not infer causation on the balance of probabilities does not mean that a court may not.[129]b) A finding of causal connection may be made even when the expert evidence does not rise above the possible; the question is always whether the evidence as a whole established causation on a balance of probabilities.[130][128] Appellant's closing submissions filed 24 March 2022 [55].[129] Seltsam Pty Ltd v McGuinness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [143-144].[130] Ibid [89], [94-96], [98-100], [102], [143], [144], [153]. The Appellant says that when considering the expert evidence, the test which ought to be applied is that of Mahoney JA (Glass JA agreeing; Reynolds JA dissenting) in Fernandez v Tubemakers of Australia Limited,[131] the relevant enquiry being:whether the evidence showed the connection between the possible cause and the condition which occurred was sufficiently close to warrant a reasonable mind, faced with the problem of determining the question upon the evidence before it, concluding that the possible was the actual cause[131] [1975] 2 NSWLR 190 at 200. The Appellant says that there is a remarkable temporal relationship between 'on the one hand, the tasks being undertaken by the Appellant for the purposes of the job he was performing that day and, on the other, the onset of signs and symptoms in the Appellant's left shoulder, left elbow and hips and, secondly, the demanding nature of the work and its tendency to be productive of symptoms of injury.'[132][132] Respondent's closing submissions filed 28 February 2022 [58].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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