Lee v Workers' Compensation Regulator

Case [2025] QIRC 199

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lee v Workers' Compensation Regulator [2025] QIRC 199

PARTIES:        

Lee, Kwang
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

 WC/2022/93

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

 31 July 2025

HEARING DATES: 

7–10 May 2024
30 September–3 October 2024

DATES OF WRITTEN CLOSING SUBMISSIONS:

Respondent's submissions filed on 27 November 2025
Appellant's submissions filed on 7 January 2025
Respondent's submissions in reply filed on 14 January 2025

MEMBER:

HEARD AT:

Pidgeon IC

Cairns

ORDERS:

1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent is confirmed.

2.      Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.
CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – consideration of the scope of the appeal – consideration of the date of injury – consideration of the admissibility of expert medical evidence – where  evidence is tendered by the appellant and the witness is not called – where the appellant did not raise an issue at hearing – where the expert medical evidence is admissible – where aggravation is not within the scope of the appeal – where the appellant's injury arose out of or in the course of employment – where the injury is excluded by operation of reasonable management action

LEGISLATION:

CASES:

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

Allwood v Workers' Compensation Regulator [2017] QIRC 88

Bowers v Q-COMP [2002] QIC 8

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Davis v Blackwood [2014] ICQ 9

Groos v WorkCover Queensland [2008] QIC 52

Jones v Dunkel (1959) 101 CLR 298

Kelly v Workers' Compensation Regulator [2022] QIRC 366

King v Workers' Compensation Regulator [2019] QIRC 134

McMah v Simon Blackwood (Workers' Compensation Regulator) & BHP Billiton Coal Pty Ltd [2014] QIRC 13

Prizeman v Q-COMP [2005] QIC 53

QANTAS Airways Limited v Q-COMP [2006] QIRComm 27

State of Queensland (Department of Agriculture and Fisheries v Workers' Compensation Regulator [2020] QIRC 97

Workcover Queensland v Kehl [2002] QIC
APPEARANCES:

Mr M. Glen of Counsel, instructed by Preston Law, for the Appellant.

Mr S. McLeod of Counsel, directly instructed by the Workers' Compensation Regulator

Reasons for Decision

  1. Mr Kwang Lee (also known as 'Shine') was employed by the Sovereign Resort Hotel Pty Ltd ('the Sovereign') in Cooktown as a Head Chef on a full-time basis.

  1. Mr Lee lodged an application for compensation for psychiatric/psychological injury on 26 May 2021. On 3 September 2021, WorkCover allowed his application for compensation. Mr Lee's employer sought a review of this decision.

  1. On 12 May 2022, the Review Unit decided to set aside the decision of WorkCover and substitute a new decision that the application for compensation should be rejected in accordance with s 32 of the Workers' Compensation and Rehabilitation Act ('WCRA'). It is this decision which Mr Lee appeals to the Queensland Industrial Relations Commission ('the Commission'), the subject of matter WC/2022/93…

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AGLC
Lee v Workers' Compensation Regulator [2025] QIRC 199
Case
[2025] QIRC 199
Decision Date

CaseChat Overview and Summary

The case of Lee v Workers' Compensation Regulator involves an appeal by the appellant, Mr Lee, against a decision of the Workers' Compensation Regulator, the respondent. The dispute pertains to the determination of the date of Mr Lee's injury, the admissibility of expert medical evidence, and whether the injury arose out of or in the course of employment. The case was heard and determined by the Commission, which has the authority to review decisions made by the Workers' Compensation Regulator. The Commission was tasked with deciding whether the injury Mr Lee sustained was work-related and, if so, whether it was excluded by reasonable management action.

The primary legal issues the Commission had to address were the admissibility of expert medical evidence tendered by the appellant and not objected to during the proceedings, the date of Mr Lee's injury, and whether the injury was work-related. Additionally, the Commission had to determine if the injury was excluded by reasonable management action under the relevant legislation. The appellant argued that the injury occurred on 15 May 2021 and was significantly worsened, constituting an aggravation. The respondent, however, contended that any injury Mr Lee suffered was on 10 May 2021 and was not work-related, thus excluded under the legislation.

The Commission examined the admissibility of Dr Campbell's consultation note, which was tendered by the appellant without objection. The Commission held that the note was admissible and could be relied upon by both parties. The Commission also found that it was open to the appellant to call Dr Campbell if they had questions regarding the evidence and diagnoses of other expert medical witnesses. Regarding the date of injury, the Commission determined that if 10 May 2021 was the date of injury, it could not consider whether Mr Lee suffered an aggravation or a separate injury on 15 May 2021, as the appeal did not permit such an extension. The Commission concluded that the injury Mr Lee suffered on 10 May 2021, if any, was work-related and not excluded by reasonable management action.

The Commission confirmed the review decision of the respondent, rejecting Mr Lee's appeal. The decision underscored that the appeal did not permit consideration of an aggravation or a separate injury outside the scope of the original application for compensation. The Commission's decision was based on the evidence presented, including the admissibility of the expert medical evidence and the nature of the injury in relation to the appellant's employment.

Orders

Orders of the court

1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent is confirmed.

2. Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Respondent says for the reasons above, any contention that Dr Campbell's consultation note is not admissible and that Dr Christensen's comments in consideration of the consultation note are inadmissible is wrong.[55]Consideration re: evidence relating to Dr Campbell and the evidence of Dr Christensen as it relates to Dr Campbell's consultation note[55] Respondent’s Reply Submissions (n 4) [34]. As has been canvassed at length above, the consultation note of Dr Campbell was attached to the Conference Memorandum of Dr Christensen dated 18 December 2023. The Conference Memorandum, including attachments was tendered by the Appellant during Dr Christensen's examination-in-chief. It is Exhibit 25. There was no qualification made regarding the Conference Memorandum or the attachments. They became a part of the evidence before the Commission. Dr Christensen was taken to the attachment to his Conference Memorandum and asked specific questions about Dr Campbell's file note. No objections or qualifications were raised by the Appellant during cross-examination. Mr Lee's representative did not have any questions of Dr Christensen in re-examination. It seems to me that the consultation/progress notes of Dr Campbell relating to Mr Lee's attendance at the surgery on 10 May 2021 have been properly tendered through the evidence of Dr Christensen, who had been asked to examine them and comment on them in preparation for the hearing. The consultation note is in evidence and it is open to both parties to rely upon it. It has been tendered for all purposes. I decline to draw a Jones v Dunkel inference regarding the failure of the Respondent to call Dr Campbell. While Dr Campbell was listed on the trial plan as a witness for the Respondent, this does not compel the Respondent to call Dr Campbell. It is not unusual for a medical witness to not be called if their report or consultation notes are tendered without objection or by consent. I do not think the Respondent wishes to rely on anything other than the written content of the consultation note and medical certificates which were tendered by the Appellant. As the Respondent submits and I accept, these documents 'speak for themselves'. The Respondent is right to point out that it has always contended that Mr Lee had suffered a psychological injury as at 10 May 2021. While the Respondent's initial argument was that the significant contributors to that psychological injury were personal stressors and not work-related, I appreciate that having heard the evidence at hearing, the Respondent has changed its position and accepted that any psychological injury diagnosed on 10 May 2021 arose out of work where work is a significant contributing factor. In circumstances where the Appellant understood that the Respondent contended that 10 May 2021 was the date of injury, I find it was open to the Appellant to call Dr Campbell in the event it had questions for her about the evidence and diagnoses of the other expert medical witnesses. I have reviewed the transcript and note that Mr McLeod provided an opening of the Respondent's case and discussed the witnesses the Respondent intended to call. If Mr Lee's representative wished to make a request at that time that the Appellant call Dr Campbell, the Commission could have adjourned to allow arrangements to be made.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Appellant further argues that the evidence clearly establishes that any psychological injury suffered by Mr Lee on 10 May 2021 was significantly worsened such that it constitutes an aggravation within the meaning of s 32(3)(b). On this basis, the Appellant argues that Mr Lee succeeds on his alternative case even if the Commission were to find that he had sustained an 'injury' within the meaning of s 32(1) on 10 May 2021.Consideration – Scope of the appeal Should I determine that 10 May 2021 is not the date of injury, it is open to me to consider whether 15 May 2021 is the date of injury as is set out in Mr Lee's application for compensation. However, if I determine that the date of injury is 10 May 2021, it is not open to me to go on and determine if, later on 15 May 2021, Mr Lee suffered either an aggravation of a pre-existing injury, or a completely separate and distinct injury which was not subject of the original application for compensation. The appeal does not 'open the gates'[16] to Mr Lee to apply for compensation for an aggravation or a separate and distinct injury of PTSD.[16] Church (n 1) [33]. While the Appellant's main argument has been with regard to the events of 15 and 16 May 2021, there is no doubt that the Appellant has conducted their case with reference to earlier events which occurred in the workplace as early as February 2021. One of the range of alternative cases put forward by the Appellant is that the injury occurred as a consequence of events over the period of time ('OPT') from 12 February to 16 May inclusive.[17] It is the nature of an OPT injury that after considering the available evidence, the injury may be found to have occurred at any point after the first point in time identified as when contributing events began occurring. The Appellant contends that if there was an injury on 10 May 2021, it was not work-related, despite the Statement of Facts and Contentions referring to relevant workplace events occurring from February 2021 onwards. However, the evidence may demonstrate that if there was an injury suffered on 10 May 2021, employment was a significant contributor to that injury. The question would then be whether the injury is removed by s 32(5). I do not think that the case advanced at [7](c) above is within the scope of this appeal. I will therefore confine my consideration of the matter to address the date of injury and then following that, whether work was a significant contributor to the injury, and if relevant, whether s 32(5) operates to exclude the injury. One of the doctors who examined Mr Lee was General-Practitioner Dr Campbell. The Appellant tendered several documents as evidence at hearing pertaining to Dr Campbell: The Appellant submits that to 'prove the expert opinion', Dr Campbell was required to be called to give evidence and set out the basis for her expert opinion in accordance with the requirements for giving expert evidence. The Appellant says that as the Respondent did not call Dr Campbell to prove her alleged diagnosis or consultation note, both the alleged diagnosis and consultation note are inadmissible.[18][18] Appellant’s Closing Submissions (n 8) 47.