Biebrick v Simon Blackwood (Workers' Compensation Regulator) - [2014] QIRC 216

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Biebrick v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 216
PARTIES:	Biebrick, Malcolm John (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent)
CASE NO:	WC/2014/67
PROCEEDING:	Appeal against decision of Simon Blackwood (Workers' Compensation Regulator)
DELIVERED ON:	19 December 2014
HEARING DATES:	4, 5 and 6 August 2014 9 September 2014 - Regulator's Submissions 2 October 2014 - Appellant's submission
MEMBER:	Industrial Commissioner Fisher
ORDERS:	1. The appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. Mr Biebrick is to pay the Regulator's costs of and incidental to the appeal.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - appellant bears onus of proof - whether worker appellant has sustained a work related injury - evidence lay witnesses and medical witnesses - consideration limited to matters identified in stressors before decompensation - whether employment was a significant contributing factor to the injury - not satisfied the injury falls within s 32(1) - if injury falls within the meaning of s 32(1) of the Act it is not compensable because of the operation of the reasonable management action exclusion in s 32(5) of the Act - actions in relation to upskilling were reasonable and taken reasonably - other stressors not established on the evidence - appeal dismissed.
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 Fair Work Act 2009 State of Qld (Queensland Health) AND Q-Comp AND Beverley Coyne [2013] 172 QGIG 1447 John Labaj AND WorkCover Queensland (2003) 174 QGIG 370 Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision <http: v Parsons (2007) 185 QGIG 16 Australia Meat Holdings Pty Ltd AND Angela Merilyn Kennedy AND Q-COMP (2006) 181 QGIG 474 Blenner's Transport Pty Ltd v Gleeson and Simon Blackwood (Workers' Compensation Regulator) (No. 2) [2014] QIRC 072 Bowers v WorkCover Queensland (2002) 170 QGIG 1 WorkCover Queensland v BHP (Qld) Workers' Compensation Unit [2002] 170 QGIG 142 Peter James Croning AND Workers' Compensation Board of Queensland [1997] 156 QGIG 100 Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 49 Q-COMP AND Jennifer Jones (C/2010/51) - Decision <hppt:// v Whitbread (1995) 78 A Crim R 453
APPEARANCES:	Mr M.J. Biebrick, the Appellant, in person. Mr A. McLean Williams, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator).

Decision

Malcolm Biebrick was employed as a Trainer by PARTEC Qld Pty Ltd in Townsville. PARTEC is the acronym for the Plastics and Rubber Technical Education Centre. PARTEC is a registered training organisation (RTO) providing training for 23 years in plastics and polymers. It has a training centre at Mt Gravatt, Brisbane employing about 13 employees. It also has a centre in Townsville where Mr Biebrick was the sole full-time employee. Mr Biebrick's wife, Jocelyne Portelli, was engaged to do administrative work.

PARTEC was established as a proprietary limited company but operates on a not‑for‑profit basis. The majority of its funding comes from the Queensland Government in the form of apprenticeships and…

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: [2014] QIRC 216
Decision Date: 19 December 2014

CaseChat Overview and Summary

In the appeal of Biebrick v Simon Blackwood (Workers' Compensation Regulator), the court was asked to determine whether the appellant, Biebrick, had sustained a work-related injury that qualified for workers' compensation under the Act. Biebrick argued that his injury arose out of or in the course of his employment and that the Regulator's decision to deny his claim was incorrect. The Regulator contended that the evidence provided by both lay and medical witnesses was insufficient to establish a causal link between Biebrick's injury and his employment.

The court had to decide if Biebrick's employment was a significant contributing factor to his injury, beyond merely being the setting where the injury occurred. The court considered whether the injury fell within the meaning of section 32(1) of the Act, and if it did, whether it was compensable under section 32(5) due to the reasonable management action exclusion. The evidence from Dr. Golus and Dr. Caniato was examined, with the court noting that while Dr. Golus identified work-related stressors, he could not pinpoint specific incidents causing Biebrick's injury. Dr. Caniato's evidence further supported the Regulator's position, as he could not identify any particular work-related incidents.

The court concluded that the evidence did not establish that Biebrick's injury arose out of or in the course of his employment, nor that his employment was a significant contributing factor to the injury. The court found that the actions taken by the employer regarding upskilling were reasonable and justified. Consequently, the appeal was dismissed, and the Regulator's decision was upheld. Biebrick was ordered to pay the Regulator's costs associated with the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Regulator is confirmed.

3. Mr Biebrick is to pay the Regulator's costs of and incidental to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Conclusion on health practitioner evidence: The Regulator submits that insufficient medical evidence is available for the Commission to conclude that Mr Biebrick's injury arose out of or in the course of employment. The injury may have arisen during the period of Mr Biebrick's employment but this is not the test. Hall P explained the proper approach in WorkCover Queensland v BHP (Qld) Workers' Compensation Unit: [9]"In Charles R. Davidson v McRobb [1918] AC 304 at 321 Lord Dunedin put the matter in this way: 'In my view, "in the course of employment" is a different thing from "during the period of employment". It connotes, to my mind, the idea that the workman or servant is doing something, which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work or the natural incidents connected with the class of work. . .'. "[9] WorkCover Queensland v BHP (Qld) Workers' Compensation Unit [2002] 170 QGIG 142. Employment must be more than the setting in which the injury occurred but must be the real, effective cause.[10] Further, employment must be a significant contributing factor to the injury. "Employment" refers to what the worker in fact does in their employment[11] and, for it to be a significant contributing factor, the connection between injury and employment is additional to each of the requirements that the injury arose out of or in the course of employment.[12] [10] Peter James Croning AND Workers' Compensation Board of Queensland [1997] 156 QGIG 100, 101.[11] Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626, 641.[12] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 49, [36]. The Regulator further submits that the evidence of Dr Golus was lacking in essentials. Although the Commission could accept Mr Biebrick was dissatisfied during the period of his employment, the Commission could not be satisfied that the injury arose out of or in the course of employment. In this regard reliance was also placed on the evidence of Dr Caniato who was unable to discern any particular incident or incidents that were work-related. The evidence of each health practitioner has its own difficulty. I have disregarded the evidence of Dr Lindsay given her lack of knowledge about the stressors impacting on Mr Biebrick at the relevant time. Dr Golus had the advantage of having 31 consultations with Mr Biebrick from shortly after his decompensation to 11 July 2013. He was able to discern from Mr Biebrick's presentation that he was concerned about many matters which varied in intensity from one consultation to the next. However, he also identified the significance of matters concerning PARTEC including upskilling, which was a long drawn out issue; finding out information about one of the Directors of PARTEC and occupational health and safety issues. With the latter issue however Dr Golus was unable to be specific about times and dates and his evidence discloses that Mr Biebrick's concerns about health and safety both pre- and post-dated his injury.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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