Legal Research
Cases
Blackwood v Toward

Blackwood v Toward

Case [2015] ICQ 8 24 March 2015

Limitation Periods

Jurisdiction

Appeal

Workers’ Compensation Medical Certificate

Assessed by a Doctor

Workers Compensation Law

Type to search within this case.

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Blackwood v Toward [2015] ICQ 008

PARTIES:

SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR)
(appellant)
v
IAN ANDREW TOWARD
(respondent)

CASE NO/S:

C/2014/42

PROCEEDING:

Appeal

DELIVERED ON:

24 March 2015

HEARING DATE:

3 November 2014

MEMBER:

Martin J, President

ORDER/S:

Appeal dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the respondent is a jockey who was injured by a horse prior to a race in 2004 – where the respondent was treated at various time for issues arising from hip pain – where, in 2013, the respondent’s doctor issued a Workers’ Compensation Medical Certificate in which he diagnosed severe arthritis in the left hip - where the respondent lodged an application for compensation with WorkCover in 2013 claiming an injury of osteoarthritis of the left hip – whether the application had been lodged within the time prescribed – whether ‘assessed by a doctor’ under s 141(1) of the Workers’ Compensation and Rehabilitation refers to a worker being assessed to ascertain is he or she has sustained an ‘injury’ within the meaning of the Act

Workers’ Compensation and Rehabilitation Act 2003, s 131, s 141

CASES:

Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457
Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1
Bishop of London v Ffytche (1801) 102 ER 188
Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 209 ALR 116

Flaherty v Girgis (1987) 162 CLR 574

Hamilton v Baker (1889) 14 App Cas 209

Parker v The President of the Industrial Court [2009] QCA 120
Re Alcan Australia Ltd; ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96

Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation (1952) 85 CLR 159
WorkCover Queensland v Downey [2001] QIC 76

APPEARANCES:

M Hinson QC and S McLeod on behalf of the appellant instructed by Workers’ Compensation Regulator
G Barr on behalf of the respondent instructed by Butler McDermott Lawyers

Ian Toward, the respondent, is a jockey. On 21 August 2004 he was engaged to ride in a race at the Innisfail Race Course. The horse he was riding flipped over in the barrier before the starter let the race go and, as a result, Mr Toward was injured. He was treated at the track and his left hip and the top of his left leg were iced.

He rode in other races that day and was back riding track work the next week despite soreness. He was able to work despite not being pain free.

On 1 February 2005 he was examined by Dr Simonds, a general practitioner, who referred him to Dr Pozzi, an orthopaedic surgeon. Mr Towards saw Dr Pozzi on 22 April and told him of the event which had occurred on 21 August. An X-ray revealed that he had early arthritis in the left hip and an unhealed fracture of the acetabulum joint. He was prescribed some…

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 Blackwood v Toward

Details

AGLC: Blackwood v Toward [2015] ICQ 8
Case: [2015] ICQ 8
Decision Date: 24 March 2015

CaseChat Overview and Summary

In the matter of Blackwood v Toward, the respondent, a jockey, had sustained injuries from a horse incident prior to a race in 2004. The respondent sought workers' compensation for severe arthritis in the left hip, diagnosed by their doctor in 2013, which they attributed to the 2004 incident. The primary issue before the court was whether the respondent's application for compensation, lodged in 2013, was within the prescribed time limit and if the phrase 'assessed by a doctor' under section 141(1) of the Workers' Compensation and Rehabilitation Act meant the doctor had to determine whether the worker had sustained an 'injury' as defined by the Act.

The court examined the statutory requirement for the respondent to lodge a claim within three years of being 'assessed by a doctor'. The court held that the statutory language was ambiguous and could be interpreted in two ways: either when a doctor first assesses that a worker has sustained an injury or when a doctor assesses the worker's condition as an injury. The court considered the broader context of the Workers' Compensation and Rehabilitation Act and concluded that the term 'assessed by a doctor' referred to the initial assessment of whether the worker had sustained an injury. Therefore, the respondent's claim was not time-barred because the doctor's assessment in 2013 was the first time the condition was assessed as an injury.

Consequently, the court ruled in favour of the respondent, finding that the claim for compensation was not time-barred. The appeal was dismissed, and the decision of the tribunal was set aside. The court determined that the respondent's application for compensation, lodged in 2013, was within the prescribed time limit and that the statutory period for lodging a claim began on the date the doctor first assessed the respondent's condition as an injury.

Orders