Evans v Q-Comp

[2011] QMC 42

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Evans v Q-COMP [2011] QMC 042

PARTIES:

MATTHEW JOHN EVANS

(appellant)

v

Q-COMP

(respondent)

FILE NO/S:

MAG85098/10(1)

DIVISION:

Magistrates Court – Industrial Magistrate

PROCEEDING:

Appeal against decision of Q-COMP

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

2 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2011, 23 August 2011

MAGISTRATE:

Lee G

ORDER:

The decision of Q-COMP is confirmed. This means the appeal is not successful.

CATCHWORDS:

INDUSTRIAL LAW - WORKERS COMPENSATION - personal injury – psychological injury – whether arose out of or in the course of management action – whether management action reasonable and taken in a reasonable way

INDUSTRIAL LAW - WORKERS COMPENSATION – application for review – merits review – de novo hearing – whether management action reasonable and taken in a reasonable way – who bears onus of proof in that respect

Workers Compensation and Rehabilitation Act 2003 (Qld), s 32(5)

Aigner v Q-COMP, C/2011/2 Queensland Industrial Court (16 May 2011)

Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Ivey v WorkCover Queensland [1999] QIC 65; (1999) 162 QGIG 392

Parker v The President of the Industrial Court of Queensland & Q-COMP [2008] QSC 175; [2009] QCA 120

Pye v The Metropolitan Coal Co Ltd [1934] HCA 9; (1934) 50 CLR 614 and on appeal to the Privy Council at (1936) 55 CLR 138

Q-COMP v Hohn (2008) 187 QGIG 139

Q-COMP v Rowe [2009] QIC 17

Rossmuller v Q-COMP, C/2009/36 Queensland Industrial Court (5 February 2010)

Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512

COUNSEL:

G Cross for appellant

S Gray for respondent

SOLICITORS:

AK Compensation Lawyers for appellant

Respondent on own behalf

1. By applications dated 14 and 15 October 2009 Mr Evans applied for workers compensation[1] in respect of a psychological injury sustained during his employment with Dellgale Pty Ltd (Dellgale) as a welder. In his handwritten application

   
   

   (exhibit 1) he states this injury developed over a period of time whereas in the typed application (exhibit 2) it was not expressed as developing over a period of time but having occurred on 14 October 2009 when his employment was terminated. I note the employer’s report exhibited “ME 14” to Mr Evans’ affidavit sworn

   
   

   22 August 2011 (exhibit 6) says the injury happened “Over time from the stress of getting consumables and uniforms”.

   [1] Exhibits 1 (handwritten) & 2 (typed); exhibit 1 also referred to a physical injury i.e. “right hand been sore over 5 weeks”;  

2. On 26 November 2009 the claim was rejected by WorkCover[2] primarily on the basis that, although accepting Mr Evans sustained a personal injury in the nature of work related stress, it was excluded from the definition of injury under section 32(5) of the Workers Compensation and Rehabilitation Act 2003 (the Act) because it arose out of or in the course of reasonable management action taken in…