Kenny v Workers' Compensation Regulator - [2017] QIRC 40

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Kenny v Workers' Compensation Regulator [2017] QIRC 040
PARTIES:	John Douglas Kenny (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2016/96
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	11 May 2017
HEARING DATES:	7 December 2016 (Hearing) 27 January 2017 (Appellant Submissions) 27 February 2017 (Regulator Submissions) 10 March 2017 (Appellant Submissions in Reply)
HEARD AT:	Townsville
MEMBER:	Deputy President Swan
ORDERS	[1] The Appeal is granted. [2] The Respondent is to pay the Appellant's costs of, and incidental to the Appeal.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Workers' Compensation Regulator - physical injury - Injury claimed, "lateral medullary syndrome (stroke) likely secondary to vertebral artery dissection" and "loss of teeth" - worker employed in isolated location as excavator driver - claimed that excavator door hit him in the side of face as he was seeking to retrieve esky from the cabin - Regulator claims incident did not occur - Commission accepts injury as described by Appellant, did occur - medical evidence as to possible causation of secondary injury - uncertainty as to whether dissection of Appellant's carotid artery was caused by trauma or artherosclerotic disease - lack of certainty in medical opinion does not, of necessity, preclude the Appellant's claim from being accepted - Appeal granted - Regulator to pay Appellant's cost of, and incidental to Appeal.
CASES:	Workers' Compensation and Rehabilitation Act 2003 MacArthur v WorkCover Queensland (2001) 167 QGIG 100 Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155 Tabet v Gett [2010] 240 CLR 537 Groos v WorkCover Queensland 165 QGIG 106 Cowen v Bunnings Group Ltd [2014] QSC 301
APPEARANCES:	Mr J.A. Greggery of Counsel, instructed by Conolly Suthers Lawyers, for the Appellant. Mr J. Merrell of Counsel, directly instructed for the Workers' Compensation Regulator

Decision

Mr John Douglas Kenny (the Appellant) seeks to appeal the Review Decision of the Workers' Compensation Regulator (the Regulator) dated 11 May 2016. In that decision the Regulator upheld the original WorkCover Queensland decision to reject the Appellant's Application for Compensation under s 32 of the Workers Compensation and Rehabilitation Act 2003 (the Act).

The claimed injury in the Appellant's Notice of Appeal is that of "lateral medullary syndrome (stroke) likely secondary to vertebral artery dissection" and "loss of teeth".
ONUS OF PROOF AND LEGISLATION
The Appellant bears the onus of proof to establish that, on the balance of probabilities, his injury arose out of, or in the course of, his employment and that the employment is a significant contributing factor to the injury, pursuant to s 32 of the Act.
WITNESSES
Witnesses for the Appellant were:
·        Mr John Douglas Kenny, the Appellant;
·        Ms Hine Manu White, the Appellant's partner;
·        Dr Lakshmi Narayan Reddy Kamasani, Dentist; and
·        Dr Francis Gerard Quigley, Vascular Surgeon
Witnesses for the Regulator were:

· Ms Hayley Jade Holcroft, Area Manager, Toowoomba Branch, Skilled Group Limited; and
· Ms Tarana Hayat, Claims Representative, WorkCover Queensland.

APPELLANT'S…

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: [2017] QIRC 40
Decision Date: 11 May 2017

CaseChat Overview and Summary

Kenny, an excavator driver employed in an isolated location, appealed a decision of the Workers' Compensation Regulator which found that the injury claimed, lateral medullary syndrome (stroke) likely secondary to vertebral artery dissection and loss of teeth, did not occur. The Regulator had found that the incident, where the excavator door hit the worker in the side of the face as he sought to retrieve an esky from the cabin, did not occur. The Commission accepted the injury as described by Kenny occurred, but there was uncertainty as to whether the dissection of Kenny’s carotid artery was caused by trauma or artherosclerotic disease. The question for the court was whether the uncertainty in medical opinion precluded the Appellant’s claim from being accepted.

The court found that the lack of certainty in medical opinion did not, of necessity, preclude the Appellant’s claim from being accepted. The court noted the evidence of Dr Quigley, the vascular surgeon, who stated that the main factors in favour of trauma being associated with the stroke were the fact that the trauma was on the left side of the neck, Kenny had symptoms from that time up until the presentation with stroke, the cause of the stroke was due to occlusion of the left vertebral artery and the appearances of the occlusion were consistent with a dissection secondary to trauma. The court held that the Regulator’s findings were not supported by the evidence and that the Appeal should be granted.

The court granted the appeal and ordered that the Regulator pay Kenny’s costs of, and incidental to the Appeal. The court held that the Regulator’s findings were not supported by the evidence and that the uncertainty in medical opinion did not, of necessity, preclude the Appellant’s claim from being accepted. The court found that the Appellant’s evidence was consistent with the evidence given by Dr Quigley and that the Appellant’s claim should be accepted.

Orders

Orders of the court

[1] The Appeal is granted.

[2] The Respondent is to pay the Appellant's costs of, and incidental to the Appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In elaborating upon these issues, the Regulator identified those occasions where it found the Appellant's evidence to be inconsistent with his Evidence In-Chief. The Appellant's Evidence In-Chief about the Alleged Incident The Appellant's evidence commented upon by the Regulator was: The Appellant completed a form from Skilled, dated 19 March 2013, acknowledging the process to be undertaken if an injury occurred at the workplace. The Appellant correctly answered a question in that document which stated: "6.If I suffer a work related injury or illness, I must: (a)Report it immediately to the Client Representative and/or SKILLED Representative/Branch." [Exhibit 7] The Regulator queried the Appellant's account of the incident. It cited the Appellant's evidence given after the Appellant said he had been hit by the door:"… couldn't work out what had happened, because it virtually knocked me out. And I just remember sitting on the track, trying to think what had gone wrong." [T1-18, L21-23]And later:"Yeah. Well, I got down. Where I was - I was actually on the stockpile. When the door shut - when it hit me, I landed down the bottom of the stockpile. I'd come to from the stockpile. And I just walked back up and was trying to work out what had hit me." [T1-21, L27-30]Regulator's Comment: "This was the only evidence the Appellant gave in his Evidence In-Chief - when describing what happened when he says the door of the excavator hit him - about a stockpile." [Regulator's Submissions, point 17]Inconsistency concerning the time the Alleged Incident Occurred The Regulator submitted that the Appellant, had nominated the time of 12.00pm midday on 8 April 2013, as the time when he said the incident occurred. Later, the Appellant said he had stopped work on that day around 10.00am.The Location on the Appellant's head where he says the door hit him The Regulator submitted that this was an important distinction because of the evidence given by Vascular Surgeon, viz., Dr Quigley. The point being made by Dr Quigley in his evidence favouring an explanation of trauma having occurred to the Appellant was his reference to "the fact that the trauma was on the left side of the neck". Dr Quigley had said: "The main factors in favour of trauma being associated with the stroke are the fact that the trauma was on the left side of the neck, he had symptoms from that time up until the presentation with stroke, the cause of the stroke was due to occlusion of the left vertebral artery and the appearances of the occlusion were consistent with a dissection secondary to trauma." [Exhibit 12 - page 2] [*Dr Quigley's Report and evidence will be addressed more fully under the heading, Medical Evidence.]Regulator's Comments:The Regulator highlights the different descriptions given by the Appellant regarding where on his body he was hit by the door e.g. "hit on the left cheek and ear" and "struck on the left side of the head, neck and face", by the cabin door. The Regulator submits that this inconsistency must "cast doubt on his veracity". [Regulator's Submissions, point 24]The Allegation in Cross-Examination as to Where the Excavator was Situated

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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