Nuske v Workers' Compensation Regulator - [2019] QIRC 23

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Nuske v Workers' Compensation Regulator [2019] QIRC 023
PARTIES:	Beau Danial Nuske (Appellant ) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2017/15
PROCEEDING:	Appeal
DELIVERED ON:	22 January 2019
HEARING DATES:	7 June, 20 July 2018
MEMBER: HEARD AT:	O'Connor VP Townsville
ORDER:	1. The appeal is dismissed; 2. The decision of the respondent dated 31 January 2017 is affirmed; and 3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION – appeal against a decision of the Workers’ Compensation Regulator – where appellant suffers from a pre-existing condition – where appellant contends that he suffered an aggravation of his condition – whether employment was the major significant contributing factor to the aggravation.
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32 Workers' Compensation Act 1926 (NSW) Carman v Q-COMP (2007) 186 QGIG 512 Chattin v WorkCover Queensland (1999) 161 QGIG 531 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 Davidson v Blackwood [2014] ICQ 008 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 JBS Australia Pty Ltd v Q-COMP (C/2012/35) Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 Q-COMP v Green (2008) 189 QGIG 747 Qantas Airways Ltd v Q-COMP (2009) 191 QGIG 115 Theresa Helen Ward v Q-COMP (C/2011/39)
APPEARANCES:	Mr J Greggery QC instructed by Organic Legal for the appellant Mr S McLeod directly instructed by the respondent

Reasons for Decision

Beau Danial Nuske was employed as a removalist by a Townsville based company trading as "Caloundra Removals". On the 4 February 2016 the appellant suffered an injury to his lower back whilst completing a job in Cairns. An application for compensation with WorkCover was made on 11 April 2016. The claim was investigated and ultimately accepted by the insurer.
It is contended that the appellant suffered a further injury whilst removing furniture in Mt Isa on 19 March 2016. The appellant contends that he suffered an aggravation or an exacerbation of his degenerative right hip.[1] It is not in contention that the appellant has a pre-existing degenerative change to his right hip.
[1] Submissions of the Appellant filed 20 August 2018, para 1.
The respondent in its decision of 31 January 2017 rejected the application for compensation on the basis that his employment was not a significant contributing factor to the injury in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003. It is against that decision that the appellant now appeals.

The Mt Isa incident

The appellant together with a co-worker, Dale Campbell attended a residence in Mt Isa to remove furniture. Towards the end of the job the appellant and Mr Campbell were carrying a large bookcase weighing approximately 45-60 kilograms down a set of stairs. The appellant said that as he was moving backwards down the stairs he felt…

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 Nuske v Workers' Compensation Regulator

Details

AGLC: Nuske v Workers' Compensation Regulator [2019] QIRC 23
Case: [2019] QIRC 23
Decision Date: 22 January 2019

CaseChat Overview and Summary

In the case of Nuske v Workers' Compensation Regulator, the appellant, Mr Nuske, sought to appeal a decision made by the Workers' Compensation Regulator, which declined to award him compensation for an aggravation of a pre-existing condition. The matter was heard in the Industrial Commission of Queensland.

The central issue before the court was whether Mr Nuske's employment was a significant contributing factor to the aggravation of his pre-existing condition. This determination was critical as it would affect his eligibility for workers' compensation. The court had to assess the evidence presented by both parties and determine the extent to which Mr Nuske's work environment and activities contributed to the worsening of his condition.

The court found that the evidence did not sufficiently support Mr Nuske's claim that his employment was a significant contributing factor to the aggravation of his condition. The court highlighted that the medical evidence provided did not conclusively link the aggravation to his work activities, and there were other potential contributing factors that were not adequately excluded. Consequently, the appeal was dismissed, and the decision of the Workers' Compensation Regulator dated 31 January 2017 was affirmed. The court also ordered that Mr Nuske was to pay the respondent's costs of and incidental to this appeal, to be agreed upon or, if necessary, to be determined in a further application to the Commission.

Orders

Orders of the court

1. The appeal is dismissed;

2. The decision of the respondent dated 31 January 2017 is affirmed; and

3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of 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

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Ratio Decidendi

Legal Principle Established

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