Gay v Workers' Compensation Regulator

Case [2024] QIRC 141

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gay v Workers' Compensation Regulator [2024] QIRC 141

PARTIES:

Gay, Aaron
(Appellant)

v

Workers' Compensation Regulator (Respondent)

CASE NO:

 WC/2017/111

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

 31 May 2024

HEARING DATES:

MEMBER:

HEARD AT:

14 December 2020, 15 December 2020
Appellant's written submissions filed on 2 February 2021 and Respondent's written submissions filed on 17 February 2021

Hartigan DP

Brisbane

ORDER:

1.   The appeal is dismissed.

2.   Any application for the costs by the Regulator is to be served and filed in the Industrial Registry within 28 days of this decision.
CATCHWORDS:

WORKERS' COMPENSATION –
APPLICATION – APPEAL AGAINST
DECISION OF WORKERS'

COMPENSATION REGULATOR – where decision of Commission appealed and set aside – where matter was remitted back to the Commission to decide according to law – where application for assessment of degree of permanent impairment under s 132A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) rejected by Regulator – whether Appellant is prohibited from applying for assessment of permanent impairment pursuant to s 132A of the WCR Act – where the Appellant has previously made a claim for compensation under s 132 of the WCR Act – where the injury referred to in the s 132A application is found to be for the same injury as the s 132 application for compensation – where Appellant is not entitled to make a claim for assessment of permanent impairment – appeal dismissed.

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 31, 32, 108, 131, 179, 185, 187, 189, 237

Worker's Compensation and Rehabilitation and other Legislation Amendment Act 2013 (Qld)

Explanatory Notes, Workers' Compensation and Rehabilitation and Other Legislative Amendment Bill 2013 (Qld)

Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (Qld)

Gay v Workers' Compensation Regulator [2018] QIRC 125

Gay v Workers' Compensation Regulator [2019] ICQ 011

Lake City Freighters Pty Ltd v Goram & Gotch Limited [1985] HCA 48; 157 CLR 309

Langridge v Workers Compensation Regulator [2021] QIRC 251

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Reasons for Decision

Introduction

  1. Mr Aaron Gay ('Mr Gay') successfully appealed a decision of the Commission[1], which determined, inter alia¸ that the appeal against a decision of the Workers' Compensation Regulator ('the Regulator') be set aside and the matter be remitted back to the Commission to decide according to law ('the appeal decision').[2]

  1. The Commissioner who originally heard the matter did not hold office by the time it was re-listed for hearing and the matter was subsequently allocated to another member of the Commission.

  2. The issue to be determined is whether Mr Gay is precluded from applying for assessment of degree…

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AGLC
Gay v Workers' Compensation Regulator [2024] QIRC 141
Case
[2024] QIRC 141
Decision Date

CaseChat Overview and Summary

The case of Gay v Workers' Compensation Regulator involved the appellant, Mr Gay, appealing against a decision of the first respondent, the Workers' Compensation Regulator, which dismissed Mr Gay's application for a review of an earlier decision to refuse to accept liability for a claim for compensation. Mr Gay's claim for workers' compensation arose from injuries he sustained while working as a furniture removalist for Kent Transport Industries Pty Ltd. The dispute centered on whether Mr Gay's injuries constituted two separate events, thus potentially excluding the applicability of section 132A of the relevant legislation.

The legal issues that the court needed to address included whether Mr Gay's injuries at the music festival and his ongoing back condition constituted two separate injuries. If they were deemed separate, section 132A would not apply, and Mr Gay's claim would be valid. The court also needed to determine whether Mr Gay's activities at the music festival and other concurrent work duties constituted the same event or separate events under the legislation.

In resolving these issues, the court found that Mr Gay's injuries did not constitute two separate events but were instead part of a continuous process. The court considered Mr Gay's history of back injuries and his activities during the relevant period, including his involvement in the music festival and other concurrent work tasks. The court concluded that the injuries were not separate events, thereby triggering the applicability of section 132A, which precluded Mr Gay's claim. The court upheld the Regulator's decision to dismiss Mr Gay's application for a review of the liability decision.

The appeal was dismissed, and the court directed that any application for costs by the Regulator must be served and filed in the Industrial Registry within 28 days of this decision.

Orders

Orders of the court

1. The appeal is dismissed.

2. Any application for the costs by the Regulator is to be served and filed in the Industrial Registry within 28 days of this decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

From the above, Mr Gay contends that each of the separate events relied on respectively in the s 132 application and the s 132A application, result in two separate injuries. The consequence of this, Mr Gay argues, is that s 132A(1) does not apply. The evidence Mr Gay commenced employment with Kent Transport Industries Pty Ltd on 5 October 2011. Whilst Mr Gay's contract of employment[28] states that Mr Gay's position is that of a casual driver,[29] it seems agreed between the parties that Mr Gay performed duties as a Furniture Removalist as well as driving the removal truck.[30][28] Exhibit 2, 1. [29] Ibid. [30] T1-2, 4-7. Indeed, the evidence is that, except for a brief period working as a truck driver, Mr Gay worked predominantly as a furniture removalist for 30 years.[31][31] T1-14, 31; T1-15; 7. The Q-Comp Worker Claim History attached to Mr Gay's s 132A application indicates that, prior to 2014, Mr Gay had made five WorkCover claims with respect to injuries to his lower back variously described as "muscle/tendon strain", "soft tissue injuries", or "sprains and strains of joints" to his back. Two of these claims were lost time claims in 2013. This history is relevant as Mr Gay gave evidence about being required to be "at full capacity" to carry the pianos,[32] and also previously that he managed his sore back by taking rest days and utilising annual leave, following which his back "would come good."[33][32]T1-34; 9-10.[33] T1-30; 4-9. Mr Gay further gave evidence that following the WorkCover claims in 2013, and prior to the music festival in 2014, that it was not unusual for him to get a twinge or niggle in his back when both at work and at home. Mr Gay said when that occurred, to manage the symptoms he would take, "some drugs and probably laydown."[34] Mr Gay said he treated his back pain with Aspro mixed with Brufen for pain relief.[35] Relevant to the appeal, Mr Gay and his colleagues loaded and unloaded and then reloaded pianos for a music festival in and around Townsville between 25 July 2014 and 11 August 2014, although the period claimed by Mr Gay in the s 132 Application was 28 July 2014 to 10 August 2014.[36] [36] Exhibit 2. Tendered into evidence was a table showing the movement of the pianos during the course of the festival, as well as the individual job dockets for each of the jobs.[37][37] Exhibit 4. The evidence confirms that the last day of the music festival was 11 August 2014 and that Mr Gay worked that day. Mr Gay did not work exclusively at the music festival throughout the period 25 July to 11 August 2014. The evidence was that he continued to perform a variety of work, with his team, during this period including, for example: During the course of his evidence, Mr Gay gave evidence[39] of experiencing physical difficulty at St James' Cathedral on 1 August 2014 as follows: However, inconsistent with this evidence was evidence that later on in that same day, and on the following day, being 1 and 2 August respectively, Mr Gay also performed a furniture lift at Ergon Energy. Mr Gay also worked on 3 August 2014 including being involved in moving a piano. Indeed, Mr Gay continued to work both at the music festival and at other sites during the relevant period.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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