Create Foundation Ltd v Workers' Compensation Regulator - [2016] QIRC 124

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	CREATE Foundation Ltd v Workers' Compensation Regulator [2016] QIRC 124
PARTIES:	CREATE Foundation Ltd (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2014/357
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	22 November 2016
HEARING DATES:	27 May 2015 23 to 27 May 2016 14 September 2016 (Appellant's Submissions) 12 October 2016 (Respondent's Submissions) 16 November 2016 (Appellant's Submissions in Reply)
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Thompson
ORDERS:	1. The Appeal is dismissed. 2. The Decision of the Regulator of 2 December 2014 is confirmed. The claim is one for acceptance. 3. The Appellant is ordered to pay the Regulator's costs of and incidental to the Appeal.
CATCHWORDS:	WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Workers' Compensation Regulator ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence ‑ Worker sustained a personal injury - Personal injury arose out of or in the course of employment - Employment was the major significant contributing factor - Unreasonable management action taken in an unreasonable way - Appeal dismissed - Decision of Regulator confirmed - The claim is one for acceptance - Appellant to pay Regulator's costs of and incidental to the Appeal.
CASES:	Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 131, s 141, s 550 Australian Securities Investment Commission v Rich [2005] 218 ALR 764 Boyd v Q-COMP (2005) 180 QGIG 1129 Q-COMP v Glen Rowe (2009) 191 QGIG 67 O'Brien v Q-COMP (2007) 185 QGIG 383 Vesna Misevski v Q-COMP (C/2009/29) - Decision < Svenson v Q-COMP (2006) 81 QGIG 629 Millroy v Workers' Compensation Regulator [2016] QIRC 050 Karen Bowers v WorkCover Queensland (2002) 170 QGIG 1 Davis v Blackwood [2014] ICQ 009 WorkCover Queensland v Margaret Kehl (2002) 170 QGIG 93 Parker v Q-COMP [2007] QIC 25 State of Queensland AND Q-COMP (C/2009/42) - Decision Prizeman v Q-COMP (2005) 180 QGIG 481 RACQ Operations Pty Ltd v Q-Comp (2003) 174 QGIG 824 CS Energy Limited v Q-COMP [2008] QIC 57 Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42 Brown v Cashman [2013] VSCA 122 Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision of Queensland (Queensland Health) AND Q-Comp AND Beverley Coyne [2003] QIC 118 SPE Pty Ltd AND Q-COMP and Gary Clifford Fuller (C/2010/19) - Decision <
APPEARANCES:	Mr R. Green, Counsel, instructed by Ferguson Cannon Lawyers for the Appellant. Mr C. Clark, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

A Notice of Appeal was lodged with the Industrial Registrar on 22 December 2014 by CREATE Foundation Ltd (Appellant) (CREATE) pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (the Regulator) dated 2 December 2014.
The decision of the Regulator was to set aside the decision of WorkCover Queensland (WorkCover) to reject an application for compensation from Claudia Whitton (Whitton) and substitute a new decision to…

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: [2016] QIRC 124
Decision Date: 22 November 2016

CaseChat Overview and Summary

Create Foundation Ltd appealed against a decision of the Workers' Compensation Regulator, which rejected their claim for workers' compensation on behalf of one of their employees. The employee alleged that they sustained a personal injury during the course of their employment, which the Regulator found was not causally linked to their employment. The appeal was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues were whether the employee had sustained a personal injury and if the injury arose out of or in the course of their employment. The Regulator's decision hinged on the standard of proof required for acceptance of the claim. The Regulator found that the employee had not met the standard of proof on the balance of probabilities, which is the applicable standard in workers' compensation claims. The Regulator considered the employee's evidence and that of other witnesses, concluding that the employee's employment was not the major significant contributing factor to the injury.

The Tribunal found that the Regulator's decision was based on a proper consideration of the evidence. The Tribunal confirmed the Regulator's assessment that the employee had not met the required standard of proof. The Tribunal also upheld the Regulator's finding that the employee's employment was not the major significant contributing factor to the injury. As the appeal was dismissed, the Regulator's decision of 2 December 2014 was confirmed. The Tribunal ordered the Appellant to pay the Regulator's costs of and incidental to the appeal.

Orders

Orders of the court

1. The Appeal is dismissed.

2. The Decision of the Regulator of 2 December 2014 is confirmed. The claim is one for acceptance.

3. The Appellant is ordered 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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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