Irving v Blackwood

[2014] ICQ 30

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Irving v Blackwood [2014] ICQ 030

PARTIES:

KELLY IRVING
(appellant)
v
SIMON BLACKWOOD (Workers’ Compensation Regulator)
(respondent)

CASE NO/S:

C/2014/5

PROCEEDING:

Appeal

DELIVERED ON:

27 November 2014

HEARING DATE:

3 July 2014

MEMBER:

Martin J, President

ORDER:

Appeal dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the Appellant suffered a back injury – where the Appellant sought to add a further claim of psychological injury arising from the same event – where the claim, so far as it concerned the psychiatric component, was rejected and that rejection was upheld on review by Q-Comp – where the Industrial Commission dismissed the appeal from the Q-Comp decision – where the Appellant sought to introduce different issues than those before the Industrial Commission – whether the Industrial Commission erred in dismissing the appeal – whether an issue can be raised on appeal where it was not raised before the Industrial Commission

Workers’ Compensation and Rehabilitation Act 2003, s 275

CASES:

Coulton v Holcombe (1986) 162 CLR 1
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Wallis v Q-Comp (C/2012/23) – Decision <

APPEARANCES:

L Willson on behalf of the appellant instructed by Everingham Lawyers
J W Merrell for the respondent instructed by the Workers’ Compensation Regulator

1. In commencing his reasons in Wallis v Q-Comp,[1] Hall P said:

“[1] Unlike appeals to the Industrial Court under s. 341(1) of the Industrial Relations Act 1999, appeals to the Industrial Court under s. 561(1) of the Workers' Compensation and Rehabilitation Act 2003 (the Act), are not restricted to appeals on the narrow grounds of error of law or excess or want of jurisdiction. However, such appeals are true appeals. They are not second chance trials. They are about the correction of error. A decision is not to be set aside or varied, if it is reasonably open on the evidence.”

[1](C/2012/23) – Decision < type="1">

I respectfully agree with what his Honour said.

1. In this appeal, the appellant seeks to redraw the battle lines and to argue a case which was not put before the Commission.

The case before the Commission

1. Kelly Irving suffered an injury in the course of her employment at K-Mart on 26 July 2010. The injury was to her back.  Her application for workers’ compensation with respect to a lower back injury was accepted and a notice of assessment issued.

1. On 16 August 2011 the appellant served a notice of claim for damages under s 275 of the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’). In that notice she claimed damages for physical injuries, namely, injuries to her back, right leg and right foot.

1. On 7 September 2011 she sought to add a claim “for damages for a psychiatric injury suffered by me during the course of my employment duties on or around 26 July 2010”.

1. That claim, so far as it concerned the psychiatric component, was rejected and that rejection was upheld on review by Q-Comp.

The appeal to the Commission

1. On 16 January 2014 Deputy President Swan dismissed the appeal brought by Ms Irving against Q-Comp’s decision.

1. In arriving at her conclusion, the Deputy President said:

“[92]In my view, the Appellant's adjustment disorder with depressed mood was not caused by pain from her lower back injury. Medical evidence was to the effect that the Appellant was coping with that pain and continued working from July 2010 until June 2012 when her employer stood her down from work.

…

[94]I have accepted that the Appellant's adjustment disorder with depressed mood was as a direct result of her wanting to continue work for her employer and being stood down from that work in June 2012.”

1. The basis of the appeal advanced by Ms Irving was that she had suffered a “psychiatric/psychological injury pursuant to s.32 WCRA as a consequence of physical injuries suffered on 26 July 2010 within the meaning of s.32 WCRA. The injury was suffered no later than the date the Statutory Declaration was sworn claiming for such injury, being 7 September 2011.”

1. In the appellant’s written submissions in this court, reference is made to the finding of the Deputy President set out above and the “error” relied upon by the appellant is expressed in the following way:

“With respect, the only question that Deputy President Swan was tasked with was whether the appellant suffered an ‘injury’ pursuant to s.32 of the Workers’ compensation and Rehabilitation Act 2004 (WCRA). Her Honour was not tasked with determining when an adjustment disorder with depressed mood was suffered.”

1. At the hearing before the Deputy President the appellant and the respondent were in agreement as to the matter in dispute. In paragraph 6.1 of the appellant’s written submissions to the Deputy President, the following appears:

“The appellant agrees with the respondent’s submissions that what is in dispute between the parties is whether the appellant’s adjustment disorder with depressed mood was caused by the pain from which she was suffering from the physical injury she suffered to her lower back on 26 July 2010.”

1. That submission was consistent with the manner in which the appeal before the Deputy President had been conducted. In the opening on behalf of Ms Irving, Mr Cross[2] said:

“It’s the appellant’s case that as a consequence of the ongoing pain that she suffered as a consequence of that work-related accident, that she suffered a psychological psychiatric injury at some time between the date of the accident and no later than June 2011.”[3]

[2]Mr G Cross appeared for the appellant before Deputy President Swan and settled the written submissions for this appeal.

[3]T 1-7.

1. The approach sought to be taken by the appellant before this Court is inconsistent with that which she took in the hearing before the Deputy President. As Hall P observed in the excerpt from Wallis v Q-Comp set out above, an appeal is not a second chance trial. It is about the correction of error.

1. A party which carefully and deliberately conducts its case on the basis that a particular issue is to be decided by the Commission will not be allowed (save in exceptional circumstances) to retreat from that position on appeal and seek to demonstrate that an error has been committed with respect to an issue which was not put before the Commission.

1. This appeal is, of course, a rehearing but:

“To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”[4]

[4]Coulton v Holcombe (1986) 162 CLR 1 at 7.

1. The inability of a party in an appeal to change the ground rules upon which the primary decision was given was summarised in University of Wollongong v Metwally (No 2)[5] where six justices of the High Court said:

“[7] It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”[6]

[5](1985) 59 ALJR 481.

[6]Ibid at 483.

1. The appellant is bound by the way she conducted her case in the Commission. She cannot now depart from that and attempt to demonstrate an error on that basis.

Mental distress v psychiatric/psychological injury

1. It was also argued by the appellant that the appellant need only show that she had suffered “mental distress” prior to June 2012 for her to succeed.

1. In support of that argument the appellant referred to s 32 of the Act and the relevant regulations together with the definition of “mental disorder” in the Diagnostic and Statistical Manual of Mental Disorders, 4^th ed.

1. Given the way in which the appellant framed the issue to be decided by the Commission, there is no need to arrive at a conclusion on this argument.

In any event, was there evidence supporting the finding of the Deputy President?

1. The appellant gave evidence that, after she injured her back, she had a week off work but then returned and worked on a suitable duties program, on the basis of information provided by medical practitioners. Evidence was received from a number of other medical practitioners who treated Ms Irving in the two year period between her injury and when, on 26 June 2012, she was stood down from her duties.

1. The appellant did not call any evidence which would support a conclusion that she sought any treatment from a psychiatrist or a psychologist from July 2010 until September 2012 for anxiety or depression. A number of medical practitioners expressed a view that she may have been suffering from an adjustment disorder with low mood or something to that effect. None of those practitioners were either qualified to make a diagnosis of that nature or, if qualified, made a diagnosis of that nature.

1. There was evidence, though, from Dr Duke (a psychiatrist who did examine the appellant) that he believed that the matter which caused her to cross the diagnostic threshold and which would justify a diagnosis of adjustment disorder with depressed mood, arose in June 2012 when, due to her medical restrictions, she was stood down from employment.

1. The conclusion the Deputy President came to was open on the evidence before her. No error has been demonstrated.

1. The appeal is dismissed.