JJ Richards & Sons Pty Ltd v Workers' Compensation Regulator - [2016] QIRC 147

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	JJ Richards & Sons Pty Ltd v Workers' Compensation Regulator [2016] QIRC 147
PARTIES:	JJ Richards & Sons Pty Ltd (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2015/317
PROCEEDING:	Appeal
DELIVERED ON:	22 December 2016
HEARING	24 October 2016
MEMBER:	Deputy President O'Connor
ORDERS :	1. The application is allowed; 2. The appellant is granted leave to file and serve an amended notice of appeal by Friday 14 January 2017; and 3. Costs reserved.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Whether injury arose out of, or in the course of employment - Whether employment was a significant contributing factor - where decision of the Medical Assessment Tribunal was sought - whether Commission has jurisdiction to hear matter where Tribunal has already issued a decision in relation to injury - whether decision of Tribunal limited to medical matters
CASES:	Workers' Compensation and Rehabilitation Act 2003 ss 32, 500, 501, 514, 549, 515 Accident Compensation Act 1985 McKinnon-Domingo v QComp [2006] QIC 23; 182 QGIG 28 WorkCover Queensland v Walch-Ryan [2000] QIC 50; 165 QGIG 84 CSR Ltd v General Medical Assessment Tribunal-Thoracic and Anor 2010 QSC 321 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
APPEARANCES:	Zecevic v Simon Blackwood (Workers' Compensation Regulator) & Anor [2015] QSC 232 Davidson v Blackwood[2014] ICQ 008 Sherlock v Lloyd (2010) 27 VR 434 Mr C Clark of Counsel, instructed by Sparke Helmore Lawyers for the appellant Mr P O'Neill of Counsel, instructed directly by the respondent

On 23 December 2015, JJ Richards & Sons Pty Ltd (the appellant) lodged a Notice of Appeal in the Industrial Registry of the Commission pursuant to s 549 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
The respondent contends the Commission has no jurisdiction to hear and determine this appeal. It is argued by the respondent that, as a consequence of the referral by WorkCover to the Medical Assessment Tribunal (the Tribunal) and its decision, the appellant is bound by that decision, namely, that the matters alleged in the application constitute an injury to the claimant within the meaning of s 32 of the Act.
The appellant accepts that by virtue of s 515(1)(a) of the Act, the Tribunal's decision on a "medical matter" is final. However, the appellant contends that on a proper consideration of the provisions of the Act the referral to the Tribunal of a "medical matter" and the utilisation of the Tribunal's decision does not put any subsequent decision by the Regulator beyond the reach of the appeal rights enshrined in s 549 of the Act.
The respondent contends that the Commission does not have jurisdiction to hear the appeal or, alternatively, is bound to adhere to the decision of the Tribunal. To do otherwise, it is submitted, would contravene the clear intent of s 515 of the Act.
The respondent submits that in accordance with the clear intent of section 515 of the Act and the decisions of the Industrial…

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: [2016] QIRC 147
Decision Date: 22 December 2016

CaseChat Overview and Summary

JJ Richards & Sons Pty Ltd (the appellant) appealed against a decision of the Workers' Compensation Regulator (the respondent) that accepted a claim for workers' compensation by an employee, Donald Joseph Bergin (the claimant). The claimant alleged that he suffered an injury to his right shoulder while turning the steering wheel of his garbage collection truck on 30 October 2014. The medical evidence was contradictory, leading to the referral of the claim to the Medical Assessment Tribunal under s 501 of the relevant Act. The Tribunal determined that the claimant had suffered an injury, an acute rupture of the right biceps tendon. The respondent subsequently accepted the claim, concluding that the injury arose out of the claimant's employment.

The appellant challenged the respondent's decision to accept the claim, arguing that the Tribunal's decision was limited to medical matters and did not address whether the employment was a significant contributing factor to the injury. The appellant also argued that the Tribunal's decision did not have the effect of binding the respondent and that the respondent had jurisdiction to hear the matter. The appellant sought a review of the respondent's decision, which was ultimately confirmed. The Industrial Registry heard the appeal and had to decide whether the Tribunal's decision limited its scope to medical matters and if the respondent had jurisdiction to hear the matter.

The Industrial Registry held that the Tribunal's decision was not limited to medical matters and could include non-medical matters. The Registry found that the respondent had jurisdiction to hear the matter and that the Tribunal's decision did not bind the respondent. The Registry concluded that the appellant had an appropriate mechanism to challenge the Tribunal's decision under s 515(2) of the Act. The Registry found that the appellant had failed to seek relief in the appropriate jurisdiction, and it was not possible for the appellant to challenge the decision of the Tribunal through the Commission. The Registry allowed the application and granted the appellant leave to file and serve an amended notice of appeal by a specified date. Costs were reserved.

In summary, the Industrial Registry dismissed the appellant's appeal against the respondent's decision to accept the claimant's workers' compensation claim. The Registry held that the Tribunal's decision was not limited to medical matters and that the respondent had jurisdiction to hear the matter. The Registry found that the appellant had failed to seek relief in the appropriate jurisdiction and could not challenge the decision of the Tribunal through the Commission. The appellant was granted leave to file and serve an amended notice of appeal, and costs were reserved.

Orders

Orders of the court

1. The application is allowed;

2. The appellant is granted leave to file and serve an amended notice of appeal by Friday 14 January 2017; and

3. Costs reserved.

Background

Background to the litigation

If it was the intention of the appellant to challenge the decision of the Tribunal then there was, on the respondent's submission, an appropriate mechanism to do so pursuant to s 515(2) of the Act. It was argued that it is now not possible for the appellant, particularly given its failure to seek relief in the appropriate jurisdiction to now seek to challenge the decision of the Tribunal through the Commission. Background The Donald Joseph Bergin (the claimant) was at the relevant time employed by JJ Richards & Sons Pty Ltd as a heavy truck driver, driving garbage collection trucks. On Thursday 30 October 2014, the claimant was performing a normal garbage collection run. In order to avoid a parked car, the claimant had to swing the truck out and around the parked car. When turning the steering wheel, the claimant alleges that he felt a sharp pain in his right shoulder. The medical evidence received by WorkCover was contradictory and, as a consequence, the claim was referred to the Tribunal pursuant to s 501 of the Act. The terms of reference for the Tribunal were as follows: The Orthopaedic Assessment Tribunal convened on 19 June 2015 was constituted by Dr B McPhee (Chairperson), Dr T Foot and Dr W Sugars. It was necessary for the Tribunal to determine whether the matters alleged in the application for compensation constitute an injury to the worker and, if so, the nature of the injury. By a decision dated 19 June 2015, the Tribunal determined that the matters alleged constituted an injury to the Claimant, namely, an acute rupture of the right biceps tendon. On 14 July 2015 WorkCover accepted the claim concluding that it was satisfied "On the balance of probabilities that the Claimant had suffered a personal injury arising out of, or in the course of his employment when he was turning the steering wheel of his truck on 06/11/14." The appellant sought a review of the decision and on 27 November 2015 the respondent's review unit confirmed the decision WorkCover to accept the application for compensation. The review decision of the respondent concluded by noting:"Appeal Rights The appellant argues that notwithstanding what is set out above, the respondent has taken its current position. The grounds of appeal are as follows: It is from the review decision of the respondent that the present appeal has been lodged an Industrial Registry. WorkCover's capacity to make a reference to a tribunal is provided for in s 500 which relevantly provides: The appellant did not admit that an injury had been sustained by the claimant and therefore s 501(2) is relevant:"(2)If the insurer has not admitted that an injury was sustained by a worker, and the nature of the injury, the tribunal must decide -(a) whether the matters alleged in the application for compensation constitute an injury to the worker and, if so, the nature of the injury; and (b) whether an incapacity for work resulting from the injury - is total or partial; and is permanent or temporary; …" The Tribunal may, if non-medical matters are included in the terms of reference refer those matters back to the insurer under s 514: "(1)If the tribunal considers that the terms of a reference to it involve - (a) both medical and non-medical matters; or (b) entirely non-medical matters; the tribunal may refer the non-medical matters back to the insurer for a decision. (2)To remove any doubt, it is declared that if the tribunal decides a medical matter mentioned in subsection (1)(a), section 515 applies to that decision. (3)Section 513 applies to a reference back to the insurer under subsection (1)."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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