Mateo v Workers' Compensation Regulator - [2022] QIRC 150

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mateo v Workers' Compensation Regulator

[2022] QIRC 150

PARTIES:

Mateo, Joselito

Appellant

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2019/209

PROCEEDING:

Appeal against a decision of the Workers'

Compensation Regulator

DELIVERED ON:

4 May 2022

HEARING DATES:

23, 24, 25 and 26 August 2021

DATES OF WRITTEN

Appellant's submissions, 21 September 2021

SUBMISSIONS:

Respondent's submissions, 6 October 2021

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

1.	The appeal is dismissed.
2.	The decision of the Workers' Compensation Regulator is confirmed.
3.	The Appellant is to pay the Respondent's costs of the Hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL

AGAINST DECISION OF WORKERS'

COMPENSATION

REGULATOR

–

PHYSICAL INJURY – where appellant was employed as a food service assistant – where

appellant sustained a personal injury to his right

shoulder – whether appellant suffered an aggravation of a personal injury – whether

aggravation arose out of, or in the course of, the

appellant's employment – whether appellant's

employment was a significant contributing

factor to the aggravation – appeal dismissed

LEGISLATION:

Workers' Compensation and Rehabilitation Act

2003 (Qld) s 32

Workers' Compensation and Rehabilitation

Regulation 2014 (Qld) s 132

CASES:

Carman v Q-COMP [2007] ICQ 43

Church v Workers' Compensation Regulator

[2015] ICQ 031

Cronin v Workers' Compensation Board of

Queensland (1997) 156 QGIG 100

JBS Australia Pty Ltd v Q-COMP [2013] ICQ
13

Karipa v Q-COMP [2013] QIRC 161

Kavanagh v Commonwealth (1960) 103 CLR
547

Linke

Simon

Blackwood

(Workers'

Compensation Regulator) [2014] QIRC 181

Morrison v Workers' Compensation Regulator

[2016] QIRC 065

Nunan v Cockatoo Docks and Engineering Co

Ltd (1941) 41 SR (NSW) 119

Omanski v Q-COMP [2013] ICQ 7

Pleming v Workers' Compensation Board of

Queensland (1996) 152 QGIG 1181

Ribeiro v Workers' Compensation Regulator

[2019] QIRC 203

Seltsam Pty Ltd v McGuiness (2000) 49
NSWLR 262

State of Queensland (Queensland Health) v Q-

COMP and Beverley Coyne (2003) 172 QGIG
1447

Tuesley v Workers' Compensation Regulator

[2021] QIRC 071

Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of

Employees (No 2) [2021] ICQ 13

APPEARANCES:

Dr G J Cross of counsel, instructed by Patinos
Lawyers for the Appellant.

Ms K M Riedel of counsel, directly instructed by the Respondent.

Reasons for Decision

Mr Joselito Mateo is a 55 year old married gentleman, with five adult children.[1]
[1] Exhibit 1, 96, 147.
Born in the Philippines, Mr Mateo settled in Australia in 2006.
Since then, Mr Mateo has undertaken a number of physically demanding jobs. He toiled in the bakery industry for almost five years, then worked in an abattoir for seven years, before finding employment in a hospital kitchen.
Mr Mateo started at the Mater Misericordiae Limited (the Mater; the hospital) as a food service assistant on 30 July 2018.
Less than three months later, Mr Mateo claimed a left shoulder injury whilst working in the hospital kitchen. That application for workers' compensation was accepted.

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.

Continue reading Mateo v Workers' Compensation Regulator

Details

AGLC: Mateo v Workers' Compensation Regulator [2022] QIRC 150
Case: [2022] QIRC 150
Decision Date: 4 May 2022

CaseChat Overview and Summary

In the case of Mateo v Workers' Compensation Regulator, the appellant, Mr Mateo, appealed a decision made by the Workers' Compensation Regulator which rejected his application for workers' compensation in relation to an injury to his right shoulder. Mr Mateo claimed that his employment as a food service assistant contributed to the aggravation of an existing shoulder injury, leading to bursitis in his right shoulder. The court was required to determine whether the aggravation of the appellant's shoulder injury arose out of, or in the course of, his employment and if his employment was a significant contributing factor to the aggravation.

The legal issues before the court were whether Mr Mateo could prove on the balance of probabilities that he sustained an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003 (Qld). The court had to consider if the factual and medical information provided established a causal connection between the appellant's employment and the aggravation of his shoulder injury. The court also needed to determine if the aggravation was an injury within the meaning of the Act.

The court found that Mr Mateo did not meet the burden of proof required to establish a causal connection between his employment and the aggravation of his shoulder injury. The evidence presented did not demonstrate that his employment was a significant contributing factor to the aggravation of the injury. The court concluded that the Workers' Compensation Regulator's decision to reject Mr Mateo's application for workers' compensation was correct. The appeal was dismissed, and the decision of the Workers' Compensation Regulator was confirmed. Additionally, the appellant was ordered to pay the respondent's costs of the hearing.

Orders

Orders of the court

The appeal is dismissed.

The decision of the Workers' Compensation Regulator is confirmed.

The Appellant is to pay the Respondent's costs of the Hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By Statutory Declaration sworn 17 June 2021, Mr Mateo stated that the left shoulder injury was sustained over the period 30 July 2018 to 19 October 2018.[3] [3] Exhibit 2. The right shoulder injury, subject of this Decision WorkCover contacted Mr Mateo on 14 March 2019 upon receipt of a medical certificate and advice of an incident relating to his right shoulder. Mr Mateo explained that he was on restricted duties, working on the expeditor line, as well as pushing and pulling trolleys. He told WorkCover that on 11 March 2019 he worked a full eight hour day and both shoulders were sore after work. In its 2 May 2019 decision, WorkCover rejected Mr Mateo's application on the basis that the factual and medical information available did not evidence a causal connection between Mr Mateo's left shoulder injury and the development of his right shoulder bursitis. WorkCover concluded that Mr Mateo's claim relating to a secondary injury to his right shoulder was not accepted under s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (the Act). Mr Mateo applied to the Workers' Compensation Regulator (the Regulator) to review that decision on 19 July 2019. The definition of injury, including an aggravation, per the iteration of the Act at the relevant time, was: 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if— The Act prescribes that an aggravation is an injury "…to the extent of the effects of the aggravation".[5] [5] Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32(4) An appeal such as this is a hearing de novo.[6] Mr Mateo bears the onus to prove, on the balance of probabilities, that he sustained an injury within the meaning of the Act. As explained by Deputy President Merrell: [6] Church v Workers' Compensation Regulator [2015] ICQ 031, [27]; State of Queensland (Queensland Health) The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.[7] [7] Ribeiro v Workers' Compensation Regulator [2019] QIRC 203, [101], citing Seltsam Pty Ltd v McGuiness Questions to be determined There is no dispute between the parties that: This case turns on whether or not Mr Mateo is able to prove to the required standard that: My consideration of those questions will be further informed by the following matters: The Appellant's written closing submissions were filed on 21 September 2021. The Respondent's written closing submissions were filed on 6 October 2021. The Appellant did not file any written closing submissions in reply. The evidence of the witnesses and nine exhibits tendered at the Hearing, together with the written closing submissions, the Statements of Facts and Contentions, the Workers' Compensation Regulator notice of appeal and other materials filed in this matter were considered in this Decision. I have determined not to approach the writing of this Decision by summarising the entirety of the evidence provided and submissions made, but will instead refer to the parties' positions in my consideration of each question to be decided. Witnesses

Ratio Decidendi

Legal Principle Established

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