Habibi Arehjan v Workers' Compensation Regulator (No 2) - [2023] QIRC 230

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230
PARTIES:	Habibi Arehjan, Nadia (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NOS:	WC/2019/157 WC/2020/36 WC/2020/37
PROCEEDINGS:	Appeals against decisions of the Workers' Compensation Regulator
DELIVERED ON:	8 August 2023
HEARING DATES:	8, 9, 10 and 11 November 2021
MEMBER: HEARD AT:	O'Connor VP Brisbane
ORDERS:	1. Appeals WC/2019/157; WC/2020/36; and WC/2020/37 are dismissed. (a) In respect of WC/2019/157, I order that pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent, dated 2 August 2019 is confirmed. (b) In respect of WC/2020/36, I order that pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent, dated 18 March 2020, is confirmed. (c) In respect of WC/2020/37, I order that pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent, dated 18 March 2020, is confirmed. *2. In respect of WC/2019/157; WC/2020/36; and WC/2020/37, I order pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules* 2011 that: (a) the parties are to exchange and file written submissions on the costs of the hearing of no more than five (5) pages by 4.00 pm on Tuesday 29 August 2023; and (b) in the absence of any application to make oral submissions in respect of costs, the question of costs will be decided on any written submissions filed without further oral hearing.**
CATCHWORDS:	WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - appeal against review decision of the respondent - where termination of appellant's entitlement to compensation from 2 May 2019 pursuant to sections 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 - where appellant suffered work related injury - whether appellant has entitlement to weekly payments of compensation on and from 2 May 2019 - where respondent contends appellant was not incapacitated for employment on and from 2 May 2019 and has no entitlement to compensation under ss 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 - whether appellant has entitlement to weekly payments of compensation from 13 June 2018 to 23 July 2018 - whether appellant has entitlement to weekly payments of compensation on and from 16 August 2019 - where respondent contends appellant has no entitlement to weekly payments of compensation from 13 June 2018 to 23 July 2018 and on and from 16 August 2019 pursuant to s 144A of the Workers' Compensation and Rehabilitation Act 2003 - determined all three appeals are dismissed - determined all three review decisions are confirmed.
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003, s 144A, s 144B, s 147, s 168, s 540 Industrial Relations (Tribunal) Rules 2011, r 98 Arehjan v Workers' Compensation Regulator [2020] QIRC 098 Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 Colbran v Workers' Compensation Board of Queensland (1996) 152 QGIG 1180 Commonwealth v Muratore (1978) 22 ALR 176

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.

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Details

Case: [2023] QIRC 230
Decision Date: 8 August 2023

CaseChat Overview and Summary

Habibi Arehjan appealed against decisions of the Workers' Compensation Regulator to terminate her entitlement to weekly payments of compensation from 2 May 2019 and to reject her claims for weekly payments of compensation from 13 June 2018 to 23 July 2018 and from 16 August 2019. The dispute centred on whether Ms Arehjan was entitled to weekly payments of compensation under sections 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 due to a musculoligamentous injury to her cervical spine. The Respondent argued that Ms Arehjan was not incapacitated for employment from 2 May 2019, and thus, she had no entitlement to compensation. The Court needed to determine whether Ms Arehjan had any entitlement to weekly payments of compensation from the specified dates, considering her employment status and the nature of her injury.

The Court examined the medical evidence presented, including reports from Dr Dale Rimmington, Dr Phil Allen, and Dr Michael Bryant, which collectively indicated that Ms Arehjan did not require further medical treatment or hospitalisation for her injury. Dr Bryant's reports were particularly influential, as they stated that Ms Arehjan had no incapacity for work and no ongoing need for rehabilitation. Dr Bryant clarified that any reference to 'partial incapacity' was based on Ms Arehjan's self-reported pain rather than objective signs of injury. The Court found that there was no evidence to support the conclusion that Ms Arehjan had any entitlement to compensation beyond 2 May 2019 or that she required further medical treatment or hospitalisation.

Consequently, the Court dismissed all three appeals and confirmed the Respondent's review decisions. The Court found that the medical evidence did not support Ms Arehjan's claims for weekly payments of compensation from 2 May 2019 onwards, nor for the periods from 13 June 2018 to 23 July 2018 and from 16 August 2019. The Court ordered that the review decisions of the Respondent be upheld and that the parties exchange written submissions on the costs of the hearing. In the absence of any application to make oral submissions in respect of costs, the Court would decide the matter based on the written submissions filed.

Orders

Orders of the court

1. Appeals WC/2019/157; WC/2020/36; and WC/2020/37 are dismissed.

(a) In respect of WC/2019/157, I order that pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent, dated 2 August 2019 is confirmed.

(b) In respect of WC/2020/36, I order that pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent, dated 18 March 2020, is confirmed.

(c) In respect of WC/2020/37, I order that pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent, dated 18 March 2020, is confirmed.

2. In respect of WC/2019/157; WC/2020/36; and WC/2020/37, I order pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011 that:

(a) the parties are to exchange and file written submissions on the costs of the hearing of no more than five (5) pages by 4.00 pm on Tuesday 29 August 2023; and

(b) in the absence of any application to make oral submissions in respect of costs, the question of costs will be decided on any written submissions filed without further oral hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

At the time of hearing these appeals, the Appellant was working in Karratha employed as a senior electrical engineer on an annual salary of $165,000 per annum plus superannuation.[27] Consideration[27] TR1-140, LL1-40.WC/2019/157 The Appellant claimed an entitlement to weekly payments of compensation or to the payment of medical treatment, hospitalisation, or expenses pursuant to ss 144A and 144B of the WCR Act. The Respondent rejects the fact that the Appellant has any entitlement under either ss 144A or 144B of the WCR Act. This appeal concerns the termination of weekly entitlements for a musculoligamentous injury to the cervical spine on and from 2 May 2019 The Respondent contends that any incapacity suffered by the Appellant on and from 2 May 2019 is not attributable to any "[m]usculoligamentous injury to the cervical spine" condition. The Appellant does not require any further medical treatment by a registered person in relation to any "[m]usculoligamentous injury to the cervical spine" condition. Further medical treatment is not likely to improve any "[m]usculoligamentous injury to the cervical spine" condition. Dr Dale Rimmington, an orthopaedic surgeon specialising in knee and shoulder surgery prepared a report dated 25 May 2018 in which he opined: In the report of Dr Phil Allen, Orthopaedic Surgeon dated 30 April 2018, he opined: Dr Michael Bryant, orthopaedic surgeon in a report dated 2 April 2019[30] sets outs out the following responses to a series of questions:[30] Exhibit 90. In the report of 15 April 2019, Dr Bryant stated that the Appellant required no specific treatment nor any ongoing need for rehabilitation. Further, there was, at that time, no incapacity for work nor was it necessary to place restrictions on the Appellant's ability to return to work.[31][31] Exhibit 91. Dr Bryant further noted in his report of 17 July 2019 that: Dr Bryant went on to observe that he did not feel that there is any surgically correctable neck injury related to the reported work accident that should be impacting significantly on the Appellant's hours or days of work. Further, he believed no other hospitalisation or medical treatment was necessary at that time.[33] [33] Ibid. In a file note dated 4 November 2021[34] Dr Bryant clarified his reference to 'partial incapacity' in his report of 17 July 2019 by stating that he did not consider the Appellant to have any incapacity to work because of her musculoligamentous injury to her cervical spine, as stated in his reports of 2 April 2019, 15 April 2019 and 12 July 2019. His statement about 'partial incapacity' in his report was based on the Appellant's self-reports of pain rather than on any objective signs of injury.[34] Exhibit 95. No evidence has been adduced by the Appellant to suggest that at the time of the cessation of the compensation payments that she had any entitlement associated with a musculoligamentous injury to the cervical spine. I accept the medical evidence, and, in particular the evidence of Dr Bryant, which does not support a conclusion that the Appellant had a total or partial incapacity for work because of the accepted work-related neck injury beyond 2 May 2019. Further, the evidence does not support a conclusion that there is a requirement for the Appellant to undergo further medical treatment, hospitalisation or other expenses for the management of the accepted work-related neck injury beyond 2 May 2019.WC/2020/36