Gay v Workers' Compensation Regulator - [2019] ICQ 11

INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Gay v Workers' Compensation Regulator [2019] ICQ 011
PARTIES:	Aaron Scott Gay (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	C/2018/24
PROCEEDING:	Appeal
DELIVERED ON:	29 July 2019
HEARING DATE:	18 June 2019
MEMBER: HEARD AT:	O'Connor VP Brisbane
ORDER:	1. Leave is granted to amend the notice of appeal. 2. Appeal C/2018/24 is allowed. 3. The decision in appeal WC/2017/111 dated 27 September 2018 is set-aside and remitted back to the Commission to decide according to law.
CATCHWORDS:	WORKERS' COMPENSATION – EMPLOYMENT RELATED INJURY – APPLYING FOR COMPENSATION – where the Commission held that the Appellant is precluded from pursuing the application for assessment of permanent impairment – whether the Commission erred at law in finding that the Appellant had given an "inconsistent history" or there was an "unsubstantiated history" relied upon – whether there was a failure to give adequate reasons.
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2016 (Qld) s 132A Baranadurage v Waverley Forklifts Pty Ltd [2013] VSCA 307 Carlton v Blackwood (2017) 264 IR 414; [2017] ICQ 1 Hunter v TAC [2005] VSCA 1 Hoby v Workers’ Compensation Regulator [2019] ICQ 5 McEnearney v (Simon Blackwood Workers' Compensation Regulator) [2019] ICQ 7 Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd [2015] ICQ 003
APPEARANCES:	Mr J A Greggery QC instructed by Organic Legal for the Appellant. Ms D Callaghan directly instructed by the Respondent

Aaron Scott Gay was employed as a furniture removalist with Kent Transport, a business located in Townsville. The Appellant claims to have suffered an injury to his lumbar spine during his employment.
The Appellant applied to WorkCover for an assessment for permanent impairment and failing that subsequently with the Respondent. The Respondent rejected the application on the basis that the Appellant had already lodged an application for a lumber spine injury and therefore was excluded from making an application by virtue of s 132A of the Workers Compensation and Rehabilitation Act 2003.
On 20 June 2017 the Appellant lodged a notice of Appeal with the Industrial Registry.
On 27 September 2018 the Commission upheld the decision of the Respondent. The Deputy President concluded:
[121]In the circumstances of this case, I have found that the injury (i.e. that of lumbar back strain) for which the Appellant had made an application for workers' compensation on 27 August 2014, is the same lumbar back strain which was the subject of his application for assessment of permanent impairment dated 10 October 2016. The injury nominated in both applications is exactly the same and consequently the Appellant is precluded from pursuing the application for assessment of permanent impairment dated 10 October 2016.
The Appellant now appeals the decision of the Commission to this Court.
Grounds of appeal
The Appellant, through its amended notice of appeal, pursues the following six grounds of appeal:
1)   The Commissioner erred at law in finding that:
a.    There was an "inconsistent history" given by the Appellant;
b.   There was an "unsubstantiated…

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.

Continue reading Gay v Workers' Compensation Regulator

Details

AGLC: Gay v Workers' Compensation Regulator [2019] ICQ 11
Case: [2019] ICQ 11
Decision Date: 29 July 2019

CaseChat Overview and Summary

In the matter of Gay v Workers' Compensation Regulator, the appeal concerns a claim for workers' compensation related to an employment injury. The Appellant, who sustained an injury in the course of their employment, sought compensation for permanent impairment. The Workers' Compensation Regulator denied the claim, leading to the Appellant's appeal to the court. The core of the dispute revolves around the Commission's decision that the Appellant was precluded from pursuing the application due to what was termed an "inconsistent history" or an "unsubstantiated history." The Appellant contests this finding and asserts that the decision was flawed, particularly in its legal reasoning and failure to provide adequate reasons.

The legal issues before the court included whether the Commission erred in its interpretation of the Appellant's history and whether the decision was adequately reasoned. Specifically, the Appellant argued that the Commission did not correctly apply the relevant legal standards in finding an "inconsistent history" or an "unsubstantiated history." The Appellant contended that these findings were not supported by the evidence presented and that the decision lacked the necessary legal justification. Furthermore, the Appellant argued that the Commission failed to provide adequate reasons for its conclusions, which is essential for judicial review.

The court, after reviewing the evidence and the arguments presented, determined that the Commission indeed erred in its assessment. The court found that the Commission's conclusion regarding the "inconsistent history" or "unsubstantiated history" was not supported by the evidence and that the decision lacked proper legal reasoning. The court held that the Commission had not adequately explained its findings, thus failing to meet the standards required for a legally sound decision. Consequently, the appeal was allowed, and the decision was set aside. The matter was remitted back to the Commission for reconsideration according to law.

The final orders of the court included granting leave to amend the notice of appeal, allowing the appeal, and setting aside the previous decision. The court ordered that the decision in appeal WC/2017/111 dated 27 September 2018 be remitted back to the Commission for further consideration, ensuring that all legal standards and requirements for adequate reasoning are properly applied.

Orders

Orders of the court

1. Leave is granted to amend the notice of appeal.

2. Appeal C/2018/24 is allowed.

3. The decision in appeal WC/2017/111 dated 27 September 2018 is set-aside and remitted back to the Commission to decide according to law.

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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