Ellis v Workers' Compensation Regulator QIRC

Case [2020] QIRC 201


QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ellis v Workers' Compensation Regulator QIRC [2020] 201

PARTIES:

Ellis, Damien Barry
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

WC/2020/57

PROCEEDING:

Application in existing proceedings
DELIVERED ON: 25 November 2020

MEMBER:

HEARD AT:

McLennan IC

On the papers

ORDER:

1.      That each party bear its own costs with respect to the Appeal filed 18 May 2020 and the Application in existing proceedings filed 21 October 2020.

 CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – where appeal conceded by Regulator prior to hearing – where parties unable to agree on costs – whether costs order should be made.  

LEGISLATION:

CASES:

Industrial Relations Act 2016 (Qld) s 545

Industrial Relations (Tribunals) Rules 2011 (Qld) r 70

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 562, s 558

Workers' Compensation and Rehabilitation Regulation 2014 (Qld) reg 132

Bowers v WorkCover Queensland (2002) 170 QGIG 1

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Du Preez v Chelden (No. 2) [2020] ICQ 015

Canton v Workers' Compensation Regulator [2019] QIRC 145

Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257

Kim v Workers' Compensation Regulator [2019] ICQ 14

Kujawa v Workers’ Compensation Regulator [2020] QIRC 179

MIM Holdings Limited v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees Queensland (2000) 164 QGIG 370

Trimble v Q-COMP AND State of Queensland (Queensland Audit Office) [2013] QIRC 135

Yousif v Workers’ Compensation Regulator [2019] ICQ 10

Reasons for Decision

  1. On 18 May 2020 Mr Damien Barry Ellis (the Appellant, and the Applicant) filed an appeal against a decision of the Workers’ Compensation Regulator (the Respondent). The parties were directed, by order from the Industrial Registry, to provide disclosure, file statements of facts and contentions and exchange outlines of evidence. The parties were to then advise whether they required a conciliation conference or wished to proceed to hearing. Those directions were to be completed by 26 October 2020.

  2. On 7 September 2020, Ms Cheryl-Lea Godfrey on behalf of the Respondent advised the Industrial Registry that the Respondent had made an offer to Mr Ellis to resolve the appeal, and the parties consented to the outstanding Directions being vacated. It appears that the only outstanding issue was the question of costs.

  3. On 21 October 2020 Mr Ellis filed an Application in existing proceedings (the Application), seeking an Order that the Respondent pay his reasonable legal costs and disbursements incurred in lodging and pursuing the appeal. That Application is the subject of this decision.

    Submissions

    The Application filed 21 October 2020

  4. The Application sought the following orders:

    1.       That the Respondent pay the Applicant’s reasonable legal costs and disbursements incurred Applicant in lodging and pursing the Appeal before the Queensland Industrial Relations Commission.

    2.       Such further or other order as the Court deems appropriate.

  5. The Application was supported by an affidavit of Mr Ellis, filed 21 October 2020. In short, it provided:

    ·     Mr Ellis has incurred considerable costs in engaging several…

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Details
AGLC
Ellis v Workers' Compensation Regulator QIRC [2020] QIRC 201
Case
[2020] QIRC 201
Decision Date

CaseChat Overview and Summary

Ellis v Workers' Compensation Regulator QIRC involved an appeal against a decision of the Workers' Compensation Regulator. The appeal was conceded by the Regulator prior to the hearing, but the parties were unable to agree on the costs associated with the appeal and the subsequent application for costs. The primary issue before the court was whether costs should be awarded with respect to the appeal, and if so, how they should be allocated between the parties.

The court found that the role of medical evidence in such cases is to provide expert opinions based on the facts presented, not to determine the factual accuracy of the events leading to the injury. The court emphasised that the Review Unit Officer or the Member is responsible for assessing the evidence and determining factual issues, and that the medical experts' role is limited to their area of expertise. In this case, the Review Unit Officer had found that the employee had sustained a compensable injury, which was supported by the medical evidence. The court also noted that the Regulator's role is to assess the issue based on the papers, not to conduct an investigative process. The court concluded that since the appeal was conducted de novo, the previous decision of the Review Unit Officer was irrelevant to the appeal.

The court ordered that each party bear its own costs with respect to the appeal and the application for costs. The court noted that any costs awarded could only be in respect of the proceedings before the Commission and did not encompass expenses prior to the appeal. The court emphasised that the allocation of costs should reflect the outcome of the proceedings, and since the appeal was conceded, the parties were to bear their own costs.

The court's decision highlights the limited role of medical evidence in workers' compensation appeals and the importance of distinguishing between factual determinations and expert opinions. The court's order ensures that the parties bear their own costs, reflecting the outcome of the proceedings.

Orders

Orders of the court

1. That each party bear its own costs with respect to the Appeal filed 18 May 2020 and the Application in existing proceedings filed 21 October 2020.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The parties are to bear their own costs with respect to the Application. Conclusion For the preceding reasons, I have concluded that the parties are to bear their own costs with respect to the Appeal and the subsequent Application for costs. I order accordingly. Order: 1. That each party bear its own costs with respect to the Appeal filed 18 May 2020 and the Application in existing proceedings filed 21 October 2020.

Ratio Decidendi

Legal Principle Established

It is also worth noting that any costs awarded can only be in respect of the proceedings before this Commission. It does not appear to me that s 545 of the IR Act would encompass Mr Ellis’ expenses prior to the appeal. ConsiderationShould costs be awarded with respect to the Appeal? The primary thrust of Mr Ellis’ submissions is that the Regulator should have known they had no prospects in defending the decision from the outset, because of the medical reports before them. Expert evidence, such as medical reports, involves the witness forming a view, from the factual scenario presented to them, as to whether the person has sustained an injury. The opinion they form with respect to their expertise, such as whether a person has sustained an injury and what the cause of that injury was, is the result of that factual scenario before them. Their opinions cannot supplant the exercise of finding facts itself. That is most evident in circumstances where the Commission finds that facts relied upon in forming the expert opinion did not actually occur. In that instance, the value of the expert evidence is limited or nullified. Mr Ellis’ submission somewhat misunderstands the role of medical evidence. When the matter is before the review unit, it is for the Review Unit Officer to turn their mind to the evidence before them and determine the factual issues. If the matter were before the Commission, that role would fall to the Member. The Review Unit Officer or the Member would be informed by the expert evidence insofar as it relates to that witness’ area of expertise. Here, the Doctors each formed a view that Mr Ellis had sustained a psychological injury and formed a view about what the cause of that injury was. It is not their role to determine whether the alleged incidents were actually true. The Doctors do not interview witnesses or pay mind to evidentiary processes. Their role is limited to providing an opinion from and about their area of expertise with respect to the facts presented to them. All of the issues that the Doctors were qualified to provide evidence about were substantiated in the Review Unit Officer’s decision. Here, the Review Unit Officer found that, on the basis of the evidence before her including the medical reports, Mr Ellis had sustained a personal injury which arose out of his employment, with employment being the major significant contributing factor. It is also not the Doctor’s role to answer questions of law. The Review Unit Officer went on to conclude that the injury arose of out reasonable management action taken in a reasonable way. That is a complex question of fact and law which is entirely unrelated to the medical opinions provided about Mr Ellis. As the Regulator points out in their submissions, Review Unit Officers are not tasked with undertaking an investigative process such as interviewing witnesses, but rather assessing and determining the issue on the papers. Once the matter was appealed, it is for Mr Ellis to prove, on the balance of probabilities, that he has sustained a compensable injury within the meaning of s 32 of the WC Act. The appeal is conducted as a hearing de novo. As Commissioner Knight explained in Kujawa:[10] The issue is the same but the parties in a sense 'commence the application again'; that is, the Commission starts afresh.[11] The 'reasoning, determinations, evidence and/or allegations' of the review decision are irrelevant to the appeal.[12][10] Kujawa v Workers’ Compensation Regulator [2020] QIRC 179. ‘Kujawa’[11] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, 7-11 [24]-[39]. [12] Canton v Workers' Compensation Regulator [2019] QIRC 145, 8 [24], citing Trimble v Q-COMP AND State of Queensland (Queensland Audit Office) [2013] QIRC 135, 5 [39].