Fowler v Workers' Compensation Regulator (No 2)

Case [2020] QIRC 64

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Fowler v Workers' Compensation Regulator (No 2) [2020] QIRC 064

PARTIES:  

Fowler, Lewis Richard

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

 WC/2018/13

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

 6 May 2020

HEARING DATES:

DATES OF WRITTEN SUBMISSIONS:

25 February 2019, 26 February 2019, 2 August 2019 and 3 October 2019

Appellant's written submissions filed on 22 November 2019 and Respondent's written submissions filed on 16 December 2019

MEMBER:

HEARD AT:

Merrell DP

Townsville

ORDERS:

1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent is set aside and another decision is substituted, namely that the Appellant's application for workers' compensation dated 27 July 2017 is one for acceptance.

2.       The Respondent is to pay the Appellant's costs of the appeal.
CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - PHYSICAL INJURY - worker employed as a Pathology Services Assistant - worker had diagnosed right shoulder subacromial bursitis - whether there was an aggravation of worker's right shoulder subacromial bursitis - whether aggravation arose out of or in the course of employment - whether employment was a significant contributing factor to the aggravation - review decision of the Workers' Compensation Regulator set aside and a new decision substituted, namely that the worker suffered an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 558 and sch 6
CASES:

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538

Alsco Pty Ltd v VICA Mircevic [2013] VSCA 229

Church v Workers' Compensation Regulator [2015] ICQ 031

Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191

Davidson v Blackwood [2014] ICQ 008

Holtman v Sampson [1985] Qd R 472

JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13

Monroe Australia Pty Ltd v Campbell [1995] 65 SASR 16

Nilsson v Q-Comp [2008] QIC 74; (2008) 189 QGIG 523

Omanski v Q-Comp [2013] ICQ 7

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 643

Rossmuller v Q-COMP [2010] ICQ 4

Wiechmann v Lovering and WorkCover Corporation [1992] 59 SASR 203
APPEARANCES:

Mr J. Greggery QC instructed by Ms T. Cox of Organic Legal for the Appellant.

Mr B. McMillan of counsel directly instructed by Ms A. Schultz and later Ms K. Bednarek of the Respondent.

Reasons for Decision

Introduction

  1. The general background to this appeal is summarised in Fowler v Workers' Compensation Regulator[1] at paragraphs [1] to [11]. Both parties adopted that summary.[2] To that extent, these reasons for decision should be read with those paragraphs.

    [2] Mr Fowler's submissions filed on 22 November 2019, para. 1 ('Mr Fowler's submissions') and the Worker's Compensation Regulator's submissions filed on 16 December 2019, para. 2 ('the Regulator's submissions').

  2. Mr Fowler contends that his right shoulder injury:

    ·was an aggravation of a pre-existing right shoulder…

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Details
AGLC
Fowler v Workers' Compensation Regulator (No 2) [2020] QIRC 64
Case
[2020] QIRC 64
Decision Date

CaseChat Overview and Summary

The applicant, Mr Fowler, appealed against a decision of the Workers' Compensation Regulator to refuse to accept his application for workers' compensation. Mr Fowler was employed as a Pathology Services Assistant and had been diagnosed with right shoulder subacromial bursitis. The issue in dispute was whether there was an aggravation of the worker's right shoulder subacromial bursitis, and if so, whether it arose out of or in the course of his employment and whether his employment was a significant contributing factor to the aggravation. The applicant sought a review of the Regulator's decision under the Administrative Appeals Tribunal Act 1993 (Vic).

The key legal issue before the tribunal was whether the aggravation of Mr Fowler's subacromial bursitis arose out of or in the course of his employment and whether his employment was a significant contributing factor to the aggravation. The tribunal was required to consider the evidence of three medical experts, Dr O'Toole, Dr Cunneen, and Dr Maguire, and to determine which of their opinions should be preferred. The tribunal had to weigh the evidence and decide whether the activities performed by Mr Fowler in the workplace were severe enough to cause subacromial bursitis and whether his employment was a significant contributing factor to the aggravation of his pre-existing condition.

The tribunal found that the opinion of Dr Maguire should be preferred to that of Dr O'Toole. The tribunal found that Dr Maguire's higher qualifications and expertise put him in a better position to diagnose, make treatment and make surgical decisions in respect of subacromial bursitis. The tribunal found that Dr O'Toole's opinion was based on an incorrect interpretation of the AMA Guides and that he conceded his error when provided with the correct information. The tribunal found that the activities performed by Mr Fowler in the workplace were severe enough to cause subacromial bursitis and that his employment was a significant contributing factor to the aggravation of his pre-existing condition. Accordingly, the tribunal set aside the review decision of the Workers' Compensation Regulator and substituted a new decision that the worker suffered an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003.

The tribunal ordered that the review decision of the Respondent be set aside and a new decision be substituted, namely that the Appellant's application for workers' compensation dated 27 July 2017 is one for acceptance. The tribunal also ordered that the Respondent pay the Appellant's costs of the appeal.

Orders

Orders of the court

1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent is set aside and another decision is substituted, namely that the Appellant's application for workers' compensation dated 27 July 2017 is one for acceptance.

2. The Respondent is to pay the Appellant's costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The parties marshalled their submissions around the evidence of Dr O'Toole and Dr Cunneen and whether or not their opinions should be preferred to those of Dr Maguire.The parties' submissions about the evidence of Dr O'TooleMr Fowler's submissions Mr Fowler submitted that the 'single issue' was quickly identified in the cross‑examination of Dr O'Toole, when Dr O'Toole opined that the activities performed by Mr Fowler in the workplace were not severe enough to cause subacromial bursitis in the first place and by his adamant expression of the view that '… repetitive movement, on its own, is insufficient and, thus, it is beyond the capacity-or a significant force involved as well. And usually we see that above 90 degrees of affliction, or abduction in the shoulder, and generally requires significant force as well as the repetition.'[79][79] Mr Fowler's submissions, para. 32. Mr Fowler submitted that:·in reaching the conclusion expressed in the paragraph immediately referred to above, Dr O'Toole also relied upon the AMA Guides which he said identified that repetition alone was insufficient to cause subacromial bursitis; and·Dr O'Toole disagreed with the proposition, accepted by Dr Cunneen, irrespective of the force involved, that the repetitive movements of Mr Fowler's duties were sufficient to cause an aggravation of the pre-existing condition.[80][80] Mr Fowler's submissions, paras. 33-34. It was then submitted that when the adjourned hearing resumed on 3 October 2019, after the provision of the AMA Guides to which Dr O'Toole referred, Dr O'Toole conceded some matters which contradicted his earlier position in that, he was taken to page 322 of the AMA Guides and conceded that:·his evidence, in reliance on the AMA Guides, which he said identified that repetition alone was insufficient to cause subacromial bursitis, was not supported by the AMA Guides;·his evidence, in that regard, was obviously an error on his part;·he had the opportunity to correct his error before providing the further report for the resumed hearing;·he did not correct his error; and·he could find no reason why he did not correct that error.[81][81] Mr Fowler's submissions, para. 35 Mr Fowler submitted that the concessions made by Dr O'Toole confirmed that he was an advocate for his own opinion and that he was not giving evidence in accordance with his duty to the court and, further, despite the basis of his opinion being entirely eroded by those concessions, Dr O'Toole steadfastly refused to accept any contrary possibility other than that the cause of the bursitis was unable to be explained.[82] In this regard, Mr Fowler referred to Dr O'Toole's evidence in cross-examination, on 3 October 2019, at T 4‑20, lines 11 to 45.[82] Mr Fowler's submissions, para. 36. Mr Fowler submitted that the opinion of Dr Maguire should be preferred to that of Dr O'Toole because:·Dr Maguire's qualifications and experience put him in a better position to diagnose, to make treatment and to make surgical decisions in respect of subacromial bursitis considering that Dr Cunneen accepted as much while Dr O'Toole, who had equal or lesser qualifications to Dr Cunneen, did not;[83][83] Mr Fowler's submissions, para. 38.·Dr Maguire's opinion, based upon his higher qualifications and expertise, accorded with the authoritative literature referred to by Dr Cunneen and Dr Maguire and Dr Maguire was not challenged on his opinion to the effect contained in his further supplementary report (Exhibit 14) after being provided with the AMA Guides;[84] and[84] Mr Fowler's submissions, para. 39.·Dr O'Toole:

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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