J J Richards & Sons Pty Ltd v Workers' Compensation Regulator

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

J J Richards & Sons Pty Ltd v Workers' Compensation Regulator  [2019] QIRC 098

PARTIES:  

J J Richards & Sons Pty Ltd
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

WC/2015/317

PROCEEDING:

Appeal

DELIVERED ON:

25 June 2019  

HEARING DATES: 

4, 5, and 7 March 2019

MEMBER:

HEARD AT:

O'Connor VP

Townsville and Brisbane

ORDER:

1.      The appeal is dismissed;

2.      The decision of the Respondent dated 27 November 2015 is affirmed; and

3.      The Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – appeal against a decision of the Workers’ Compensation Regulator – where Appellant contends that the employment was not a significant contributing factor to the injury – appeal dismissed. 

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation  Act 2003 (Qld) s 32

Workers' Compensation Act 1926 (NSW)

Carman v Q-COMP (2007) 186 QGIG 512

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

JBS Australia Pty Ltd v Q-COMP (C/2012/35)

Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519

Q-COMP v Green (2008) 189 QGIG 747

Qantas Airways Ltd v Q-COMP (2009) 191 QGIG 115

Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181

Simon Blackwood (Workers’ Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001

APPEARANCES:

Mr C J Clark of Counsel instructed by Sparke Helmore for the Appellant

Mr S A McLeod QC directly instructed by the Respondent

Reasons for Decision

1. Donald Bergin was employed as a rubbish truck driver by the Appellant. The Appellant conducts a domestic garbage collection business in the Ayr and Home Hill Districts. On 30 October 2014, Mr Bergin suffered an injury described as an "acute rupture of the right biceps tendon whilst operating an Iveco Accor dual control truck".[1] An application for compensation with WorkCover was made on 27 November 2015.  

   [1] Exhibit 11.

2. An "At Scene Incident Report" was made on 3 November 2014 and records:

   [2] Exhibit 12.

   While swinging out from behind a vehicle in the gutter, when I turned back in around it, I felt a sharp pain in right shoulder.[2]

3. It is not in dispute that:

   (a)   Mr Bergin experienced some shoulder symptoms on 30 October 2014;

   (b)   that Mr Bergin was able to continue his shift on 30 October 2014 which finished at "around" 3:00pm;

   (c)   by the next day, the "shoulder was aching and when I got up in the morning it was even worse";

   (d)   on 31 October 2014, Mr Bergin informed his supervisor, Mr Jeffery Woodford what had occurred on 30 October 2014; and

   (e)   on 31 October 2014 Mr Bergin completed his usual duties.

4. The Respondent in its decision of 27 November 2015 accepted the application for compensation on the basis that his employment was a significant contributing factor to the injury…