Habibi Arehjan v Workers' Compensation Regulator

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INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Habibi Arehjan v Workers’ Compensation Regulator [2025] ICQ 23

PARTIES:

NADIA HABIBI AREHJAN

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO:

C/2023/33

PROCEEDING:

Appeal

DELIVERED ON:

28 October 2025

HEARING DATE:

30 April 2024

MEMBER:

Davis J, President

ORDER/S:

1.    The appeal is dismissed.

2.    The respondent file and serve any written submissions and affidavits in support on the question of costs by 4.00 pm on  11 November 2025.

3.    The appellant file and serve submissions and any affidavits in support on the question of costs by 4.00 pm on 25 November 2025.

4.    Either party may by 4.00 pm on 2 December 2025 give notice to the other and to the Registrar of an intention to make oral submissions on costs and the Registrar shall then allocate a date for hearing the submissions.

5.    In the absence of notice being given pursuant to order 4, the question of costs will be determined on the basis of any written submissions received and without further oral submissions.

CATCHWORDS:

WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – DISCONTINUATION OF PAYMENTS – GENERALLY – where the appellant was injured in a motor vehicle accident – where the accident occurred in the course of the appellant’s employment – where the appellant claimed weekly payments of compensation – where the appellant claimed medical expenses – where the insurer allowed the claims – where weekly payments were made – where medical expenses were paid – where the insurer ceased the payments – where the appellant appealed to the respondent – where the respondent upheld the decision of the insurer – where the appellant appealed to the Queensland Industrial Relations Commission – where the Queensland Industrial Relations Commission dismissed the appeal – where the appellant appealed to the Industrial Court of Queensland – whether incapacity because of the work related injury stopped – whether medical treatment is no longer required for the management of the injury

Industrial Relation Act 2016 (Qld), s 557, s 565

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 142, s 143, s 144, s 144A, s 144B, s 540

CASES:

Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171; [1985] HCA 2, cited
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533; [1989] HCA 40, cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, cited

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, cited
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66, followed
Flannery & Anor v Halifax Estate Agencies Ltd [2000] 1 WLR 377; [2000] 1 All ER 373, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Habibi Arehjan v Workers’ Compensation Regulator (No 2) [2023] QIRC 230, related
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, cited
Lee v Lee (2019)…

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Details
Case
[2025] ICQ 23
Decision Date

CaseChat Overview and Summary

This case concerns an appeal by Ms Nadia Habibi Arehjan against decisions of the Workers' Compensation Regulator, which upheld decisions by WorkCover to terminate her weekly compensation payments. The matter was heard by the Industrial Court of Queensland, where the appellant argued the termination decisions were incorrect. The court considered various grounds of appeal, including whether the Industrial Commission had erred in its consideration of certain medical reports and in its application of relevant legislative provisions.

The central issue before the court was whether Ms Habibi Arehjan's incapacity due to her work-related injuries had ceased, thereby justifying the termination of her weekly compensation payments. The court examined the evidence and submissions presented to determine if Ms Habibi Arehjan's incapacity had indeed stopped, and if medical treatment for her injuries was no longer required. The court also considered whether the Commission had properly applied the relevant legislative provisions in reaching its decisions.

The court found that while there were some errors in the Commission's reference to certain medical reports and its citation of a case based on a different legislative Act, these errors were not material to the outcome. The court concluded that the evidence supported the Commission's findings that Ms Habibi Arehjan's incapacity had ceased and that she no longer required treatment for her injuries, justifying the termination of her compensation payments. The court upheld the decisions of the Workers' Compensation Regulator.

The court's final orders were that the appeals be dismissed, and the decisions of the Workers' Compensation Regulator be affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an appeal from a judgment of Vice President O’Connor dismissing three appeals from decisions of the Workers’ Compensation Regulator.Background The appellant, Ms Nadia Habibi Arehjan, is an electrical engineer. In 2017, she was employed as such by Incitec Pivot Limited. On 10 February 2017, Ms Habibi Arehjan was involved in a motor vehicle accident which occurred in the course of her employment. There is no doubt that Ms Habibi Arehjan suffered quite severe injuries. There is no doubt that she suffered those injuries in the course of her employment. There is no doubt that compensation was payable to Ms Habibi Arehjan in relation to those injuries. Ms Habibi Arehjan made application for compensation pursuant to the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (WCR Act). WorkCover, the statutory insurer, accepted liability to pay compensation with respect to eight injuries:(a)fracture left femur and subsequent knee problems;(b)adjustment disorder with mixed anxiety and depressed moods – moderate severity;(c)left shoulder strain with referred neck pain;(d)fractured nose;(e)capsuloligamentous injury and soft tissue injury left wrist;(f)musculoligamentous injury to the cervical spine;(g)fracture of the distal sacrum/coccydynia; and(h)lumbosacral junction pain. WorkCover terminated weekly entitlements of Ms Habibi Arehjan from 2 May 2019 as those payments related to musculoligamentous injury to Ms Habibi Arehjan’s cervical spine (the first termination decision). WorkCover terminated weekly entitlements of Ms Habibi Arehjan for the period between13 June 2018 to 23 July 2018 with respect to all injuries except her left wrist EDC tendonitis (the second termination decision). WorkCover terminated weekly payments as of and from 16 August 2019 in relation to Ms Habibi Arehjan’s left wrist EDC tendonitis (the third termination decision). Ms Habibi Arehjan sought review by the Workers’ Compensation Regulator of each of the termination decisions. The Regulator confirmed each of the three termination decisions. From the Regulator’s decisions, Ms Habibi Arehjan appealed to the Queensland Industrial Relations Commission. The Commission, constituted by Vice President O’Connor, heard the three appeals together:(a)Appeal WC/2019/157 was Ms Habibi Arehjan’s appeal from the Regulator’s confirmation of the first termination decision;(b)Appeal WC/2020/36 was Ms Habibi Arehjan’s appeal from the Regulator’s confirmation of the second termination decision; and(c)Appeal WC/2023/37 was Mr Habibi Arehjan’s appeal from the Regulator’s confirmation of the third termination decision. In support of her case before the Commission, Ms Habibi Arehjan gave evidence on her own behalf and called three medical witnesses. One of those witnesses, Dr James Price, is an orthopaedic surgeon and the other two, Corena Caltabiano and Deborah Dale are physiotherapists. The Regulator called six medical witnesses, five of whom are orthopaedic surgeons; Dr Andrew Ryan, Dr Phil Allen, Dr Dale Rimmington, Dr Greg Sterling and Dr Simon Journeaux. The Regulator also called Dr Michael Bryant, a neurosurgeon.

Evidence

Evidence Before The Court

There is no substance in ground 2.Ground 3 - The Commission erred by referring to reports of Dr Panjal Relan and Dr Peter McCombe which were not in evidence This ground concerns the appeals to the Commission in file numbers WC/2019/157 and WC/2020/36. The reports of Dr Relan and Dr McCombe are referred to in paragraphs [53] and [54] of the judgment under appeal:“[53]On 29 June 2019 Dr Pankaj Relan reported the Appellant was suffering from an adjustment disorder with mixed anxiety and depressed moods. Her employment was the major significant contributing factor. She had a reasonable capacity to engage in full‑time work and he did not consider that further treatment would be of any additional benefit.[54]On 1 July 2019 Dr Peter McCombe, Orthopaedic Surgeon reported that the Appellant was complaining of pain in the sacrum, coccyx and occasionally the lumbosacral junction. This pain was markedly worse when sitting, particularly in a hard chair. She could sit for only a few minutes in an unsuitable chair though she could manage one to two hours on a suitable soft chair. She had no problems with standing or walking which was unlimited. Lifting weights of more than about 5 kg however caused her lower back and sacral pain. Dr McCombe diagnosed coccydenia and possibly a soft tissue injury. The coccydenia did not affect her ability to continue working in her current job.” In support of this ground, Ms Habibi Arehjan made two submissions in her first written submission:“[23]In Paragraph 53 and 54, the commissioner refers to Dr Pankaj Relan and Dr Peter McCombe reports that were not disclose in the hearing.”And:“[37]The commissioner used the expert evidence which is not disclosed in hearing to the appellant and is not exhibit a document” Mr McMillan, in his written submission, responded as follows:“25)The Commission referred to reports of Dr Panjak Relan and Dr Peter McCombe at paragraphs [53]-[54] of the reasons under the heading “Backgrounds to Appeals”.26)It is correct (as the Appellant submits) that those reports, while referred to in the Regulator’s statement of facts and contentions, were never received in evidence by the Commission. Since the reports referred to were never received by the Commission, it must be inferred that the references to them in the Commission’s reasons relied on the content of the Regulator’s statement of facts and contentions. However, the Commission could not have considered the reports or taken them into account in determining any of the issues before it in the appeals because it didn’t receive them. In that regard, it is notable that there is no reference to either of these reports in the paragraphs of the reasons under the heading “Consideration”.27)Further, the reports were plainly not relevant to any of the issues for determination by the Commission. It is apparent from the text of paragraphs [53]-[54] that Dr Relan’s report related to Ms Habibi Arehjan’s adjustment disorder and Dr McCombe’s report related to her coccyx injury. Material relevant to those injuries could only be relevant to WC/2020/36 because WC/2019/157 related only to the neck injury and WC/2020/37 related only to the left wrist EDC tendonitis. Both reports, by the text of paragraphs [53]-[54], post-dated the period relevant to WC/2020/36, being 13 June 2018 to 23 July 2018. Therefore, that material must be irrelevant to the issues for determination in that appeal. As such, any error by the Commission in referring to material that was described in the Regulator’s statement of facts and contentions but not ultimately put into evidence, was not material to any of the Commission’s decisions.28)The Commission’s consideration of WC/2020/36 is set out at paragraphs [86] to [104] of the reasons. The evidence referred to and considered in those paragraphs supports the finding at [100] that “no economic incapacity has been demonstrated” and at [104] that Ms Habibi Arehjan “was not otherwise entitled to incapacity benefits” for the relevant period.”

Decision

Reasons for decision

No error is shown and ground 8 has no substance.Ground 9 - The Commission “used an old case in which the decision was made based on another State Act” This ground concerns all three appeals. Ms Habibi Arehjan, in her first written submission on the appeals, said:“[33].The commissioner used an old case in which the decision was made based on another state ACT, which is not applicable in Queensland, and the ACT based on which the decision was made is not valid anymore.[34]. Problems seen in cases mentioned by commissioner have been addressed in new ACT revision, the maximum payment limited to 5 years (Commonwealth v Muratore Jacobs J ) and the leave entitlement can be cashed out (McTiernan J in Thompson v Armstrong). There is no retroactive law to accept the old version of ACT.[35]. Retrospectivity information is amended in Worker Compensation and Rehabilitation Act , which doesn’t include NSW worker compensation Act 1926-1947[36]. In the NSW Worker Compensation Act 1926-1947, the meaning of incapacity includes affecting the earning capacity of a worker or his opportunities for employment, which the appellant needed to resign as SunMetals didn’t accept to change the job description, which wasn't for the appellant.”And, earlier in the submissions, quoted these cases:“[14]McTiernan J in Thompson v Armstrong & Royse Proprietary:This case raises questions under the Workers' Compensation Act 1926-1947 of New South Wales. They concern the liability of the respondent in respect of an injury received by the appellant whereby he was incapacitated for work during a period which comprised leave and holidays.The case shows that on 18th December 1947 the appellant was disabled for work while in the respondent's service by an injury which arose out of and in the course of the employment and that the disablement did not cease until 30th December 1947.It appears that the respondent paid compensation under the Act to the appellant for incapacity for work on the first and second days of the disablement only. The respondent denies that the injury resulted in incapacity for work within the meaning of the Act during any longer period than these two days.The period beginning on 20th December and ending on 30th December coincided with annual leave and Christmas holidays taken by the respondent's employees in accordance with the Federal industrial award regulating the employment.The employees of the respondent had a legal right by virtue of the award to leave and holidays with pay. It provided for the "annual close-down" of the plant to permit the employees to take such leave. The plant was closed down for this purpose from 20th December 1947 to 2nd January 1948. Cardiff Corporation v. Hall 1 shows that the principle upon which compensation is given under a Workers' Compensation Act is based on the diminution of earning power by reason of the injury. In that case Buckley LJ. said that the Act makes the employer an insurer of capacity for work . This capacity is the worker’s power to earn wages. The principle was again stated in Harwood v. Wyken Colliery Co. By McTiernan, Fullagar and Kitto JJ. (Latham C.J. and Webb J. dissenting, and Williams J. expressing no opinion}, that the wages received by the worker during the period of his annual holidays, not having been received in respect of the injury and the consequent incapacity to earn, were not a payment, allowance or benefit which the worker received from the employer during the period of his incapacity to which the Commission was authorized by S. 13 of the Act to have regard.The argument assumes that the appellant was bound to the respondent by his contract of service not to accept employment with any other employer while his contract of service subsisted but the statute clearly contemplates concurrent contracts of service, e.g. SS. 14 (a), 14 (b). The appellant was entitled if physically capable to accept employment elsewhere during the period of close-down. Even though he could not work for the respondent he could have worked for other employers if he had not been incapacitated. For the respondent it was argued that where a contract of employment remained on foot SO that the relation of employer and employee still subsisted (as in the present case) during a period of physical incapacity and the employer in fact paid full wages (or presumably any amount greater than the amount claimable as compensation) the employee had no right to compensation. The right to compensation depended upon "total or partial incapacity for work' resulting from an injury to which the Act applied (s. 9) and it was contended that the incapacity for which the Act provided was an economic incapacity-an incapacity for earning wages. A worker is entitled to receive compensation in accordance with the scale prescribed by the Act where total or partial incapacity for work results from the injury", S. 9. The Act makes the earnings of the worker the basis of the compensation. In the case of total or partial incapacity for work the employer is liable to pay the compensation in the form of a weekly payment during the incapacity. The Act says that in the case of partial incapacity the weekly payment shall not exceed the difference between the amount of the average weekly earnings of the worker before the injury and the average weekly amount he is earning or is able to earn in some suitable employment after the injury. The nature of the case of total incapacity precludes such a limitation on the weekly payment of compensation. The personal injury sustained by the workman may incapacitate him from earning wages either by rendering him physically unfit to work or by preventing him from getting work by reason of some handicap which his injury has imposed upon him in the labour market notwithstanding that he is as physically fit for his work as he was before his accident." This passage clearly brings out the significance of the word "for" in the phrase incapacity for work". The loss for which the Act gives the worker compensation is "incapacity for work"[15]Thompson v Armstrong & Royse Pty Ltd has been proceed under NSW worker compensation that is not apply inQueensland.[16]In Thompson v Armstrong & Royse Pty Ltd , employee paid 2 days for incapacity.[17]The appellant in the case of Thompson v Armstrong & Royse Pty Ltd received the wage for the period that he was claiming, when he was incapacitated. His claimed was to received the wage on top of the wage he received for holidays and Christmas.In Thompson v Armstrong & Royse Pty Ltd ,oBy McTiernan, Fullagar and Kitto JJ. (Latham C.J. and Webb J. dissenting, and Williams J. expressing no opinion), that the wages received by the worker during the period of his annual holidays, not having been received in respect of the injury and the consequent incapacity to earn, were not a payment, allowance or benefit which the worker received from the employer during the period of his incapacity to which the Commission was authorized by S. 13 of the Act to have regard. [18]In Commonwealth v Muratore Jacobs J (with whom Gibbs, Stephen and Aickin JJ agreed)In 1966 the Delegate of the Commissioner for Employees' Compensation under the last-mentioned Act determined that the condition suffered by the respondent and causing incapacity for work since 1st June 1965 was not the result of injury by accident arising out of or in the course of his employment by the Commonwealth and was not the result of a disease due to the nature of the employment. The respondent, Vittorio Muratore, was an employee of the Postmaster-General's Department when he was injured in the course of his employment at various times between 1956 and 1963. He received compensation under the Commonwealth Employees' Compensation Act 1930 when he was not working.4. The respondent lodged an appeal to the District Court but on 28th November 1972 the appeal was withdrawn and dismissed. In the meantime on 30th August 1972 a further determination was made by the Delegate of the Commissioner (now under the Compensation (Commonwealth Government Employees) Act 1971). This the Commissioner was entitled to do by virtue ofs. 20 (4) (a) of the 1971 Act, the earlier determination of April 1971 made under the old Act being deemed to be a determination under the 1971 Act (s. 107 (2)). The determination was as follows:"(1) The evidence before me, including specialist medical opinion, indicates that since 24 June 1971 the said Vittorio Muratore has been able to earn, in some suitable employment or business, a weekly amount which is not less than his weekly pay at the date of injury as since varied. (2) NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Employees) Acts 1971 including sections 4 (2), 104 (15) and 107 (2) of that Act, and further to the determinations previously made, I hereby determine: -since 24 June 1971 the said Vittorio Muratore has been able to earn in some suitable employment or business a weekly amount not less than his average weekly earnings before the injury and he is therefore not entitled to compensation under section 46 (2) of the said Act from and including 24 June 1971." (at p299)[19]Queensland WorkCover accepted liability to pay compensation to the appellant ( Nadia Habibi Arehjan), underWorkers' Compensation and Rehabilitation Act 2003, This Act establishes a workers' compensation scheme for Queensland.”

Ratio Decidendi

Legal Principle Established

Ms Habibi Arehjan, in her written submissions, filed on the appeal to this Court, referred to her submissions filed in the Commission. Like Mr McMillan’s submissions before the Commission, I have had regard to them.ConsiderationGround 1 - The Commissioner erred by referring at paragraph [41] of the reasons to “an MRI performed in Tehran on 5 December 2018” This ground concerns the appeals to the Commission in file numbers WC/2019/157 and WC/2020/36. Paragraph 41 of the Commission’s judgment is as follows:“[41]An MRI performed in Tehran on 5 December 2018 reported fracture of the inferior segment of the sacrum with mild anterior displacement.” [11][11]Habibi Arehjan v Workers’ Compensation Regulator (No 2) [2023] QIRC 230. Of paragraph [41], Ms Habibi Arehjan submitted in her written submissions:“The commissioner in paragraph 41 stated that An MRI performed in Tehran on 5 December 2018, the appellant in her submission in paragraph 96, clearly stated that the MRI was taken by red radiology in Brisbane, Australia. The appellant submitted the evidence in hearing Exhibit #49. the commissioner, even didn’t read the exhibit and relied on the respondent submission, which was incorrect” Ms Habibi Arehjan is correct in her submissions that the Commission mistakenly stated that the scan was performed in Tehran on 5 December 2018 when it was not. This was conceded by Mr McMillan in his written submissions:“20)At paragraph [41] of the Commission’s reasons, in a section of the reasons headed “Background to Appeals” the Commissioner referred to “an MRI performed in Tehran on 5 December 2018”. No such document was tendered in evidence before the Commission, although it was referred to in the Regulator’s statement of facts and contentions filed before the hearing. The relevant document, Exhibit 49 before the Commission, was a report by Dr Amarasena, a radiologist, of a CT scan taken of Ms Habibi Arehjan’s coccyx on 5 December 2018 at RED Radiology. That report described the injury in identical terms to those used by the Commission at paragraph [41] of the reasons. Plainly, the Commission erred by referring to a document not in evidence. However, the substance of paragraph [41] was correct that medical imaging taken on 5 December 2018 “reported fracture of the inferior segment of the sacrum with mild anterior displacement”.21)In any event, paragraph [41] and the error therein was not material to the issues for determination by the Commission, namely:a)For WC/2020/36 – whether Ms Habibi Arehjan was entitled to weekly compensation for her coccyx injury from 13 June 2018 to 23 July 2018; andb)For WC/2020/37 – whether Ms Habibi Arehjan was incapacitated for work because of the coccyx injury or required further treatment for the coccyx injury from 16 August 2019.” Ms Habibi Arehjan replied to that submission in her second written submission filed on the appeal:“[9]In paragraph [20], the respondent admits that the erred happened, which shows the commissioner didn’t reviewed the evidence. No CT has been taken from Coccyx of appellant in Tehran, the referred CT is an MRI which was taken from lower lumbar of appellant, which was not accepted in hearing as an evidence.”