Fowler v Workers' Compensation Regulator

[2019] QIRC 149

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Fowler v Workers' Compensation Regulator [2019] QIRC 149

PARTIES:   

Fowler, Lewis Richard

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2018/13

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

3 October 2019

HEARING DATES: 

3 October 2019

MEMBER:

Merrell DP

HEARD AT:

Townsville

ORDERS:

Leave is granted to the Respondent  to reopen its case by admitting and relying on the further report of Dr O'Toole dated 9 July 2019

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL - INTERLOCUTORY APPLICATION -application for leave to reopen to adduce further evidence – application granted in part

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003

CASES:

EB v CT (No 2) [2008] QSC 306

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

Reid v Brett [2005] VSC 18

APPEARANCES:

Mr J. Greggery QC instructed by Organic Legal for the Appellant.

Mr B. McMillan of Counsel, directly instructed by the Workers' Compensation Regulator, the Respondent.

Reasons for Decision (Ex tempore)

1. Mr Lewis Fowler was employed by Sullivan Nicolades Pathology in Townsville in the position of Pathology Services Assistant.

2. In 2016, when Mr Fowler was working at Sullivan Nicolades Pathology, he noticed pain in his right shoulder. In August and September 2016, Mr Fowler consulted his general practitioner about his right shoulder pain. These consultations resulted in an ultrasound being conducted on his right shoulder on 9 September 2016. The recorded impression of the radiologist was 'Mild subacromial subdeltoid bursitis due to impingement.'[1]

   [1] Exhibit 1, page 83.

3. Mr Fowler successfully applied for workers' compensation under the Workers Compensation and Rehabilitation Act 2003 ('the Act') in respect of that injury.

1. Mr Fowler was absent from work from August 2016 returning to full-time duties in February 2017.  On 21 June 2017, Mr Fowler attended upon his general practitioner complaining of ongoing right shoulder pain.  On 22 June 2017, an ultrasound was undertaken of his right shoulder which found that the subdeltoid bursa was mildly thickened. The impression given included: '…bursal impingement of abduction consistent with subdeltoid bursitis/peritendinosis.'[2] 

[2] Exhibit 1, page 85.

1. By a Workers' Compensation Medical Certificate dated 11 July 2017, Mr Fowler's general practitioner certified that he was suffering from: 'Right shoulder bursitis with impingement'.[3]

   [3] Exhibit 2.

1. A further ultrasound conducted on 20 July 2017 again found a slight thickening of the subdeltoid bursa. The impression given was: 'Mild subacromial bursitis.'[4]

   [4] Exhibit 1, page 86.

1. On about 27 July 2017, Mr Fowler made another application for workers' compensation for an injury his right shoulder.  The injury identified was bursitis. That application was rejected by WorkCover Queensland for the reason that Mr Fowler's employment did not cause or aggravate his condition.

1. Mr Fowler then applied to the Workers' Compensation Regulator ('the Regulator') for a review of that WorkCover decision. By review decision of 4 December 2017, the Regulator confirmed the WorkCover decision ('the review decision').

1. By notice…