Malone v Workers' Compensation Regulator
[2025] QIRC 30
•24 January 2025 24 January 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Malone v Workers’ Compensation Regulator [2025] QIRC 030 |
PARTIES: | Malone, Anthony Michael v Workers’ Compensation Regulator |
CASE NO: | WC/2023/151 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: HEARING DATE: | 24 January 2025 24 January 2025 |
MEMBER: HEARD AT: | Dwyer IC Brisbane |
ORDER: | The application filed on 20 November 2024, and amended on 8 January 2025, is dismissed. |
| CATCHWORDS: | WORKERS’ COMPENSATION ¾ PROCEEDINGS TO OBTAIN COMPENSATION – POWER OF COMMISSION TO ORDER REGULATOR TO FACILITATE OR PAY FOR MEDICO-LEGAL REPORT – application in existing proceedings – where Appellant seeks an order from the Commission compelling the Workers’ Compensation Regulator to facilitate or pay for an independent medico-legal report pursuant to section 556 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – consideration of the function and power conferred by the provision – where the function of the provision is to confer a power compelling a ‘claimant or worker’ to attend a medico-legal examination – where the function does not extend a power for the Commission to compel the Regulator to facilitate a medico-legal examination or to pay the costs for that report at the urging of a claimant or worker – where the application must be refused |
| LEGISLATION: | Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 556 |
APPEARANCES: | A. Malone, the Appellant, on his own behalf C. Clark, Counsel directly instructed by the Workers’ Compensation Regulator |
Reasons for Decision
Delivered ex tempore, revised from transcript
Background
Mr Anthony Malone filed an appeal against a decision of the Workers’ Compensation Regulator on 25 October 2023. In short terms, the appeal relates to an alleged injury arising to Mr Malone’s shoulders that he contends arose from, or was aggravated by, his employment as a bus driver with the Brisbane City Council. The appeal has not made any significant progress since it was filed in October 2023 and has been the subject of an adjournment to allow Mr Malone to obtain some medical evidence. It has been this exercise that has produced a barrier for Mr Malone proceeding and which now gives rise to this application in proceedings.
Mr Malone filed this application in proceedings on 20 November 2024 seeking orders that, inter alia, would require the Workers’ Compensation Regulator (‘the Regulator’) to facilitate and pay for a medico-legal report from an independent expert. Mr Malone subsequently amended his application on 8 January 2025 to include a request that the Commission utilise its powers pursuant to s 556 of the Workers’ Compensation and Rehabilitation Act2003 (Qld) (‘the Act’) to order the facilitation of this report.
In support of his application Mr Malone contends that the orthopaedic surgeon who examined him at the request of Brisbane City WorkCover is, inter alia, biased and, additionally, not properly qualified to express an opinion in relation to his shoulders. The latter contention arises from apparent references on the internet or other publication to the effect that the doctor in question has expressed an interest in treating lower limb conditions.
Additionally, Mr Malone filed an affidavit on 20 November 2024 (‘the affidavit’) in support of his application that relevantly states two matters: firstly, that he saw another orthopaedic surgeon on 28 June 2024 who examined him and who subsequently recommended that Mr Malone not spend his money on a report that “might not amount to what he expected”. In light of this recommendation from the doctor Mr Malone did not obtain any report.
Secondly, the affidavit attests to other attempts made by Mr Malone to obtain a medico-legal report that had been thwarted by his lack of legal representation. He has also attempted to obtain legal representation again which has, for various reasons, been unsuccessful.
Mr Malone’s amended application pressed the request for the Regulator to pay for the report, but at the hearing of the application, Mr Malone modified his request to indicate that he was prepared to pay a reasonable cost for the report if the Regulator were ordered to facilitate the appointment. The Regulator is opposed to the application.
Consideration
Section 556 of the Act relevantly provides:
556 Additional medical evidence
(1) This section applies if –
(a)the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or
(b) the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal.
(2) The appeal body may, at any time before or after the start of the hearing, order the claimant or worker to submit to a personal examination by 1 or more specified registered persons.
(3) The appeal body may also, as the appeal body considers appropriate, make an order about -
(a) the way, time and place of the examination; and
(b)costs of the application for the order and of the examination.
…
(Emphasis added)
The language of s 556(2) of the Act reveals quite plainly that the function of the section is to confer a power compelling a ‘claimant or worker’ to attend a medico-legal examination. The power conferred by section 556(2) of the Act does not extend to a power for the Commission to compel the Regulator to facilitate a medico-legal examination or to pay the costs for that report at the urging of a claimant or worker (or an employer appellant for that matter).
Further, while it may be the case that orders can be made pursuant to s 556(3) of the Act for the Regulator to arrange the medico-legal appointment and to pay for it, the language of that section confers those powers as incidental to the exercise of the power conferred by s 556(2). That is to say: orders compelling the Regulator to e.g. pay for a medico-legal report can only be made after the power conferred by s 556(2) of the Act has been exercised.
Section 556(2) of the Act has no application to a scenario where a claimant or worker (or an employer appellant) unilaterally desires an order for a medical examination. In those circumstances, I must refuse the application on the basis that it seeks an exercise of powers that are not conferred on the Commission by s 556 of the Act.
For completeness I add two comments. Firstly, I was not invited to consider Ms Malone’s application in the context of broader powers to make orders that are conferred by the Industrial Relations Act 2016 (Qld) (‘the IR Act’).[1] But, leaving to one side the complexities of whether the IR Act may be applied to proceedings of this type and in this way, I would not have been inclined to grant Mr Malone’s application in any event.
[1] Industrial Relations Act 2016 (Qld) s 451(2).
Mr Malone’s affidavit plainly avers to an opinion from an orthopaedic surgeon (of his choosing) who examined him for the purposes of this appeal. While the opinion is not set out in the affidavit, the doctors counsel to Mr Malone against spending money on a report that ‘might not be what he expected’ gives rise to a compelling inference that his opinion would not assist Mr Malone in his appeal.
Additionally, Mr Malone states that he saw another orthopaedic surgeon in Ipswich who (he contends) was supportive of his injury being work related, but who would not provide a report to him because he was self-represented.
On his own evidence Mr Malone has had access to these two other specialists and their opinions. Mr Malone is himself a legal practitioner, albeit he has not practiced for many years. While it is neither conventional nor desirable, it is not compulsory for expert evidence in these appeals to be preceded by an exchange of written reports. Mr Malone could utilise attendance notices to compel either or both doctors who have examined him to give evidence in his case.
In all of those circumstances I cannot see any disadvantage to Mr Malone that might require the intervention of the Commission. Even if such intervention had been sought more generally, I would not have been inclined to compel the Regulator to expend public resources to obtain a fourth specialists’ opinion.
Finally, my conclusions in these reasons should in no way be construed as a barrier to parties to appeal proceedings mutually agreeing to arrangements for medical examinations and reports, either with or without the involvement of the Commission through consent orders.
Order
The application filed on 20 November 2024, and amended on 8 January 2025, is dismissed.
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