Burton v Workers' Compensation Regulator - [2022] ICQ 17

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Burton v Workers’ Compensation Regulator [2022] ICQ 017

PARTIES:

EVAN GILBERT BURTON

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

C/2022/2

PROCEEDING:

Appeal

DELIVERED ON:

Order dismissing the appeal made on 8 June 2022, other orders made and reasons delivered on 17 June 2022

HEARING DATE:

8 June 2022

MEMBER:

Davis J, President

ORDER/S:

1.   Appeal dismissed.

2.   Any written submissions on costs by the respondent to be filed and served by 24 June 2022.

3.   Any written submissions on costs by the appellant to be filed and served by 1 July 2022.

4.   Any written reply on costs by the respondent to be filed and served by 8 July 2022.

5.   Both parties have liberty to apply by application filed on or before 22 July 2022 for leave to make oral submissions on costs.

6.   In the absence of any application for leave being filed by 22 July 2022, the question of costs will be decided on the written submissions without oral hearing.

CATCHWORDS:

APPEAL AND NEW TRIAL - INFERENCE WITH JUDGE’S FINDINGS OF FACT - where the appellant made claim for workers’ compensation - where the Workers’ Compensation Regulator found no causal connection between the appellant’s injury and his work - where the appellant appealed to the Queensland Industrial Relations Commission (QIRC) - where the QIRC heard evidence from four doctors called by the appellant and one doctor called by the respondent - where the QIRC accepted the evidence of the doctor called by the respondent - where that doctor opined there was no causal connection between the appellant’s work and the appellant’s injury - where the QIRC dismissed the appeal - where the appellant appealed to the Industrial Court - where the appeal challenged the finding that there was no causal connection between the injury and the work - whether an error of law was established in the making of that finding of fact

Industrial Relations Act 2016, s 557, s 561, s 565, s 567
Workers’ Compensation and Rehabilitation Act 2003, s 5, s 32, s 34, s 35, s 561, s 567

CASES:

Aldrich v Ross [2001] 2 Qd R 235, cited
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, cited
Burton v Workers’ Compensation Regulator [2021] QIRC 437, related
Church v Blackwood (Workers’ Compensation Regulator) (2015) 252 IR 461, cited

DL v The Queen (2018) 266 CLR 1, followed
Eastman v The Queen (2000) 203 CLR 1, cited
Fox v Percy (2003) 214 CLR 118, cited
Nutley v President, Industrial Court (2019) 1 QR 354, followed
Ribeiro v Workers’ Compensation Regulator [2019] QIRC 203, cited
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed
Turnbull v Medical Board (NSW) [1976] 2 NSWLR 281, cited

APPEARANCES:

T Nielsen for the appellant instructed by Carter Capner Law

D Callaghan for the respondent instructed directly by the Regulator

Evan Gilbert Burton appealed from a decision of…

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 Burton v Workers' Compensation Regulator

Details

AGLC: Burton v Workers' Compensation Regulator [2022] ICQ 17
Case: [2022] ICQ 17
Decision Date: 17 June 2022

CaseChat Overview and Summary

The appeal in Burton v Workers' Compensation Regulator was brought by Mr Burton, a former employee of JJ Richards & Sons Ltd, who sought workers' compensation for cervical spondylosis he claimed arose from his employment as an auto-electrician. The Workers' Compensation Regulator had determined that Mr Burton's injury was not compensable as there was no causal connection between his work and the injury. Mr Burton's appeal to the Queensland Industrial Relations Commission (QIRC) was dismissed, and he subsequently appealed to the Industrial Court. The primary issue before the Industrial Court was whether an error of law was made by the QIRC in finding that there was no causal connection between Mr Burton's injury and his employment.

The court found that the appeal was essentially a challenge to the QIRC's factual findings regarding the causal connection between Mr Burton's work and his injury. The grounds of appeal did not directly identify any error of law, but rather argued that the QIRC should have preferred the medical evidence provided by Mr Burton's doctors over that of the respondent's doctor. The court examined whether the QIRC misapplied legal principles in assessing the medical evidence, as suggested by Mr Burton, and whether such misapplication amounted to an error of law. The court noted that the QIRC was not bound to accept any particular medical evidence and had the discretion to weigh and evaluate the evidence presented.

The Industrial Court concluded that the QIRC had not erred in law in dismissing the appeal. The court held that the QIRC was entitled to prefer the evidence of the doctor called by the respondent, who opined that there was no causal connection between Mr Burton's work and his injury. The court found that the QIRC's decision was based on a proper assessment of the medical evidence and did not involve any misapplication of legal principles. Consequently, the appeal was dismissed.

The final orders of the Industrial Court included the dismissal of the appeal, the setting of deadlines for written submissions on costs, and provisions for potential oral submissions on costs if leave was granted. The court's decision affirmed the QIRC's determination that Mr Burton's cervical spondylosis was not compensable under the Workers’ Compensation and Rehabilitation Act 2003.

Orders

Orders of the court

1. Appeal dismissed.

2. Any written submissions on costs by the respondent to be filed and served by 24 June 2022.

3. Any written submissions on costs by the appellant to be filed and served by 1 July 2022.

4. Any written reply on costs by the respondent to be filed and served by 8 July 2022.

5. Both parties have liberty to apply by application filed on or before 22 July 2022 for leave to make oral submissions on costs.

6. In the absence of any application for leave being filed by 22 July 2022, the question of costs will be decided on the written submissions without oral hearing.

Background

Background to the litigation

On 8 June 2022, the appeal was dismissed. These are the reasons for the dismissal of the appeal.Background Mr Burton was employed by JJ Richards & Sons Ltd (JJ Richards) from 1991 to 2015. In 1992, Mr Burton began an apprenticeship with JJ Richards in auto-electrics. He qualified as an auto-electrician in 1996. He then worked for JJ Richards as an auto-electrician in various workshops. There is no doubt that Mr Burton suffers from cervical spondylosis. The Workers’ Compensation and Rehabilitation Act 2003 (Workers’ Compensation Act) establishes a scheme to provide benefits for workers who sustain an injury at work.[2] There is no dispute that Mr Burton is a worker. There is no doubt that cervical spondylosis is an injury and Mr Burton suffered it. The issue before the QIRC was whether Mr Burton’s injury is one that is compensable under the legislation.[2]Section 5(1). That falls to be determined, relevantly here, by reference to s 32 of the Workers’ Compensation Act. As relevant, that section provides:“32 Meaning of injury(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.(2)However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.[3][3]Sections 34(2) and 35 have relevance where the injury was not sustained at a place of work.(3)Injury includes the following—(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—(i)a personal injury;(ii)a disease;(iii)a medical condition, if the condition becomes a personal injury or disease because of the aggravation; …(4)For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. …” The Regulator determined that the cervical spondylosis suffered by Mr Burton was not an “injury” as defined by s 32 as there was no causal connection between the injury and Mr Burton’s work. Mr Burton sought review of that decision. That review was brought to the QIRC pursuant to s 549 of the Workers’ Compensation Act. Such a review by the QIRC is not a genuine appeal from the Regulator’s decision but is a hearing de novo.[4][4]Church v Blackwood (Workers’ Compensation Regulator) (2015) 252 IR 461 at [27]. The QIRC posed the following questions for itself on the hearing of the review:“[9] The issues for my determination are:·did Mr Burton’s cervical spondylosis arise out of, or in the course of, his employment or did Mr Burton suffer an aggravation of his cervical spondylosis which arose out of, or in the course of, his employment? and, if so·was Mr Burton’s employment a significant contributing factor to his cervical spondylosis or to an aggravation of his cervical spondylosis?”[5][5]Burton v Workers’ Compensation Regulator [2021] QIRC 437 at [9].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In both Mr Burton’s written and oral submissions, ground (5) was pressed, and grounds (2) and (3) were not separately argued. Mr Burton’s point on appeal was that the opinions of the doctors he called to give evidence should have been preferred to the opinion of Dr Atkinson. If that was made out, ground (5) would succeed and grounds (2) and (3) would follow.Consideration Mr Burton’s appeal faced significant difficulty. As earlier observed, the issues posed and answered by the QIRC were factual ones. There was no issue below as to the construction of s 32 of the Workers’ Compensation Act or any other provisions. The only issue was as to the causal connection between the injury (or its exacerbation) and Mr Burton’s work. Grounds of appeal (2), (3) and (5) do not on their face identify any error of law. Grounds (2) and (3) allege error in finding that Mr Burton’s work was not a contributing factor or aggravation of the injury and ground (5) alleges an error in preferring the opinion of one doctor over another. Mr Burton, in his submissions, submits that the factual errors were the result of misapplication of legal principles in the assessment of the medical evidence. This submission is founded in Ribeiro v Workers’ Compensation Regulator.[12] There, the Deputy President analysed the authorities relevant to the assessment of medical evidence. Several of the principles there identified are said to be relevant here but were neither mentioned nor applied by the QIRC.[13] They are:“[45] A medical doctor’s appreciation of the legal aspects of a case, if relevant, is of no probative value. …[47]A finding of a causal connection may be open even if there is no medical evidence to support it.[48]Where medical science is prepared to say it is possible there is such a causal connection, then the tribunal, after examining the lay evidence, may decide that it is probable there is such a connection.[49]It is only where the medical evidence denies any causal connection between an event and an injury, that a tribunal cannot act on its own intuitive reasoning as if there was such a connection. …[52]Other guiding considerations include the expert’s qualifications, impressiveness and cogency of reasoning and exposition (not always a decisive ground), preparation for and application to the problem in hand, and the extent to which the witness had a correct grasp of the basic, objective facts relevant to the problem. …[54]Questions of credit and credibility are applicable in the evaluation of an expert's evidence in that, sometimes, expert witnesses display signs of partisanship in the witness box or lack objectivity or refuse to make proper concessions to the viewpoint of the other side.[55]Finally, demeanour in the witness box is usually of little importance in resolving conflicts between well-qualified medical experts.”[12][2019] QIRC 203.[13]Other principles mentioned in Ribeiro v Workers’ Compensation Regulator are mentioned at first instance; Burton v Workers’ Compensation Regulator [2021] QIRC 437 at [144].

CITATION:	Burton v Workers’ Compensation Regulator [2022] ICQ 017
PARTIES:	EVAN GILBERT BURTON (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent)
FILE NO/S:	C/2022/2
PROCEEDING:	Appeal
DELIVERED ON:	Order dismissing the appeal made on 8 June 2022, other orders made and reasons delivered on 17 June 2022
HEARING DATE:	8 June 2022
MEMBER:	Davis J, President
ORDER/S:	1. Appeal dismissed. 2. Any written submissions on costs by the respondent to be filed and served by 24 June 2022. 3. Any written submissions on costs by the appellant to be filed and served by 1 July 2022. 4. Any written reply on costs by the respondent to be filed and served by 8 July 2022. 5. Both parties have liberty to apply by application filed on or before 22 July 2022 for leave to make oral submissions on costs. 6. In the absence of any application for leave being filed by 22 July 2022, the question of costs will be decided on the written submissions without oral hearing.
CATCHWORDS:	APPEAL AND NEW TRIAL - INFERENCE WITH JUDGE’S FINDINGS OF FACT - where the appellant made claim for workers’ compensation - where the Workers’ Compensation Regulator found no causal connection between the appellant’s injury and his work - where the appellant appealed to the Queensland Industrial Relations Commission (QIRC) - where the QIRC heard evidence from four doctors called by the appellant and one doctor called by the respondent - where the QIRC accepted the evidence of the doctor called by the respondent - where that doctor opined there was no causal connection between the appellant’s work and the appellant’s injury - where the QIRC dismissed the appeal - where the appellant appealed to the Industrial Court - where the appeal challenged the finding that there was no causal connection between the injury and the work - whether an error of law was established in the making of that finding of fact Industrial Relations Act 2016, s 557, s 561, s 565, s 567 Workers’ Compensation and Rehabilitation Act 2003, s 5, s 32, s 34, s 35, s 561, s 567
CASES:	Aldrich v Ross [2001] 2 Qd R 235, cited Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, cited Burton v Workers’ Compensation Regulator [2021] QIRC 437, related Church v Blackwood (Workers’ Compensation Regulator) (2015) 252 IR 461, cited DL v The Queen (2018) 266 CLR 1, followed Eastman v The Queen (2000) 203 CLR 1, cited Fox v Percy (2003) 214 CLR 118, cited Nutley v President, Industrial Court (2019) 1 QR 354, followed Ribeiro v Workers’ Compensation Regulator [2019] QIRC 203, cited Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed Turnbull v Medical Board (NSW) [1976] 2 NSWLR 281, cited
APPEARANCES:	T Nielsen for the appellant instructed by Carter Capner Law D Callaghan for the respondent instructed directly by the Regulator