Gay v Workers' Compensation Regulator - [2018] QIRC 125

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
Gay v Workers' Compensation Regulator [2018] QIRC 125

PARTIES:

Gay, Aaron Scott
(Appellant )

v

Workers' Compensation Regulator
(Respondent)

CASE NO:
WC/2017/111

PROCEEDING:
Appeal against a decision of the Regulator

DELIVERED ON:
27 September 2018

HEARING DATE:

5, 9 and 10 April 2018

MEMBER:
HEARD AT:

Swan DP

Townsville

ORDERS:

[1]     The Appeal is dismissed; and

[2]     The Appellant is to pay costs of, and incidental to the Appeal.

CATCHWORDS:
WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - Whether Appellant is prohibited from applying for assessment of permanent impairment pursuant to s 132A of the Act - Whether the Appellant has previously made a claim for compensation at s 132A of the Act - Specialist medical opinion unhelpful to Appellant - Determined that the first claim made by the Appellant prohibits the Appellant for making a further claim pursuant to s 132A of the Act - Appeal dismissed.

LEGISLATION:
CASES:

Workers' Compensation and Rehabilitation Act 2003, s 31, 32, 108, 132, 132A, 237, 709

WorkCover Queensland Act 1996, s 253

Sayers v Hanson t/as Alguard Security Services [2011] QSC 70

Parnell v WorkCover Queensland [2006] QSC 303

Otto v Mackay Sugar Ltd & Anor [2011] QSC 215

Ley v Woolworths Limited [2013] QSC 59

Kelly v WorkCover Queensland [2002] 1 Qd R 496

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166

Andersen v Aged Care Employers Self Insurance [2011] QSC 101

Dowd v Swift Australia P/L [2008] QCA 228

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 7005

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

Ms D. Callaghan of Counsel, directly instructed by Mr M. Cutting of the Workers' Compensation Regulator, the Respondent.

Reasons for Decision
[1]This Appeal is made by Mr Aaron Scott Gay (the Appellant) against a decision of the Workers' Compensation Regulator (the Regulator) on 24 May 2017, confirming the decision of WorkCover Queensland dated 13 December 2016, to reject the Appellant's application for assessment of permanent impairment pursuant to s 132A of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

[2]The basis of the Regulator's decision was that, as the Appellant had already lodged an application for compensation on 27 August 2014 for his lumbar spine injury, the Appellant was not entitled to utilise s 132A of the Act.
[3]Section 132A states as follows:

132A Applying for assessment of DPI before applying for compensation

(1)This section applies to a worker who has not made an application under section 132.

(2)The worker may apply to the insurer to have the worker's injury assessed under section 179 to decide if the worker's injury has resulted in a DPI.

(3) An application under subsection (1) must be -

(a) lodged with the insurer; and

(b) in the approved form; and

(c) accompanied by -

(i)a certificate in the approved form given by a doctor who attended the worker; and

(ii) any other evidence or particulars prescribed under a…

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 [2018] QIRC 125
Case: [2018] QIRC 125
Decision Date: 27 September 2018

CaseChat Overview and Summary

The appeal heard before the court involved the Appellant, Gay, and the Workers' Compensation Regulator. Gay sought to challenge the Regulator's decision which dismissed Gay's application to assess permanent impairment under section 132A of the Workers Compensation Act. The dispute centred on whether Gay was barred from making a second claim for assessment of permanent impairment due to a prior claim made under the same section.

The central legal issue before the court was whether the Appellant's previous claim for compensation barred them from making a subsequent claim under section 132A of the Act. The court needed to determine if the prior claim was a prerequisite that precluded the Appellant from making a further claim for assessment of permanent impairment. Additionally, the court had to consider the impact of specialist medical opinions provided in the case on the Appellant's eligibility to make the second claim.

The court concluded that the Appellant's previous claim for compensation under section 132A of the Act did prohibit them from making a subsequent claim for assessment of permanent impairment. The specialist medical opinion provided was deemed unhelpful to the Appellant's case, as it did not support their bid to bypass the restriction imposed by the prior claim. Therefore, the appeal was dismissed, and the Appellant was ordered to pay the costs of and incidental to the appeal.

Orders

Orders of the court

[1] The Appeal is dismissed; and

[2] The Appellant is to pay costs of, and incidental to the Appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Gay v Workers' Compensation Regulator [2018] QIRC 125
PARTIES:	Gay, Aaron Scott (Appellant ) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2017/111
PROCEEDING:	Appeal against a decision of the Regulator
DELIVERED ON:	27 September 2018
HEARING DATE:	5, 9 and 10 April 2018
MEMBER: HEARD AT:	Swan DP Townsville
ORDERS:	[1] The Appeal is dismissed; and [2] The Appellant is to pay costs of, and incidental to the Appeal.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - Whether Appellant is prohibited from applying for assessment of permanent impairment pursuant to s 132A of the Act - Whether the Appellant has previously made a claim for compensation at s 132A of the Act - Specialist medical opinion unhelpful to Appellant - Determined that the first claim made by the Appellant prohibits the Appellant for making a further claim pursuant to s 132A of the Act - Appeal dismissed.
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003, s 31, 32, 108, 132, 132A, 237, 709 WorkCover Queensland Act 1996, s 253 Sayers v Hanson t/as Alguard Security Services [2011] QSC 70 Parnell v WorkCover Queensland [2006] QSC 303 Otto v Mackay Sugar Ltd & Anor [2011] QSC 215 Ley v Woolworths Limited [2013] QSC 59 Kelly v WorkCover Queensland [2002] 1 Qd R 496 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Andersen v Aged Care Employers Self Insurance [2011] QSC 101 Dowd v Swift Australia P/L [2008] QCA 228 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 7005
APPEARANCES:	Mr J. Greggery QC, instructed by Ms T. Cox of Organic Legal for the Appellant. Ms D. Callaghan of Counsel, directly instructed by Mr M. Cutting of the Workers' Compensation Regulator, the Respondent.