Salmoni v Simon Blackwood (Workers' Compensation Regulator) - [2014] QIRC 4

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Salmoni

Simon

Blackwood

(Workers'

Compensation Regulator) [2014] QIRC 004

PARTIES:

Salmoni, Robert

(Appellant)

Simon Blackwood (Workers' Compensation
Regulator)

(Respondent)

CASE NO/S:

WC/2013/125

PROCEEDING:

Appeal against a decision of Simon Blackwood

(Workers' Compensation Regulator)

DELIVERED ON:

16 January 2014

HEARING DATE:

9, 10 and 13 September 2013

13 September 2013 (Respondent submissions)
9 October 2013 (Appellant submissions)

MEMBER:

Deputy President Swan

ORDERS :

1.	The appeal is dismissed.
2.	The Appellant is to pay costs of the Regulator.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION –decision of Simon Blackwood (Workers' Compensation Regulator) – Appellant bears onus of proof – aggravation of pre existing injury – compensation for medical expenses only – appeal dismissed – Appellant to

pay costs.

CASES:

Workers' Compensation and Rehabilitation Act

2003, s 32, s 108, s 144A, s 144B, s 209,s 210
Fernandez v Tubemakers of Australia (1975) 2
NSWLR 191
Heald v Q-COMP (2004) QIC 177

Lee Grant Colburn and Workers' Compensation

Board of Queensland (No C20 of 1996)
Thompson v Armstrong & Royce Pty Ltd (1950)
81 CLR 585

APPEARANCES:

Mr R. Salmoni, self represented.

Mr F. Lippett, Counsel instructed by Simon

Blackwood (Workers' Compensation Regulator).

[1]      This is an application made by Mr Salmoni (the Appellant) against the decision of Workers' Compensation Regulator formerly known as Q-COMP (the Regulator). The decision of the Regulator was made after consideration of the following factors.
[2]      On 11 January 2011, the Appellant filed with JBS Swift Australia at Dinmore (the self insurer) an application for workers' compensation. The application was accepted as an "aggravation of a pre-existing osteoarthritic wrist" for medical expenses only.
[3]      On 29 February 2011, the self insurer advised the Appellant that the payment for compensation benefits would cease as at 2 March 2012 and that it would not accept liability for surgery and hospitalization.
[4]      The self insurer claimed that it was only liable for the work related aggravation of the pre existing injury and that the aggravation was stable and stationery and consequently payments ceased. In its view, the surgery required by the Appellant related solely to the pre existing non work related injury.
[5]      On 2 March 2012, the self insurer terminated the claim on the grounds that medical advice received was that the aggravation component of the injury had ceased. The Appellant lodged an application for review of that decision and that decision was subsequently confirmed by the Regulator. The Notice of Appeal against the decision was completed on 11 April 2013.
Witnesses
[6]      Witnesses for the Appellant were:
 Robert Salmoni (Appellant)

 Dr Lili Walsh (General Practitioner)
 Dr Andrew Ryan (Orthopaedic Surgeon).
[7]      Witnesses for the Respondent were:

 Dr John Morris (Orthopaedic Surgeon)
 Dr Anthony Keays (Orthopaedic Surgeon)
 Dr Gregory Couzens (hand and wrist surgery specialist)
 Dr Darren Marchant (Orthopaedic Surgeon).
Relevant Legislation
[8]      Section 32 of the Workers' Compensation Act 2003 (the Act) defines "injury" relevantly as follows:

(3) Injury includes the following –

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 Salmoni v Simon Blackwood (Workers' Compensation Regulator)

Details

AGLC: Salmoni v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 004
Case: [2014] QIRC 4
Decision Date: 16 January 2014

CaseChat Overview and Summary

The matter before the court was an appeal brought by the Appellant against the decision of Simon Blackwood, the Workers' Compensation Regulator. The Appellant was seeking to overturn a decision that limited the compensation payable to only cover medical expenses, on the basis that the Regulator had failed to consider the aggravation of a pre-existing injury. The appeal hinged on the Appellant's ability to prove the alleged aggravation of the injury, which was a critical point in determining the extent of compensation payable. The court was tasked with reviewing the Regulator's decision and determining whether the Appellant had successfully discharged the onus of proving that the injury had been aggravated.

The court examined the evidence presented by the Appellant and assessed whether it was sufficient to establish that the injury had indeed been aggravated. The Appellant bore the onus of proving the aggravation of the injury, a burden that was not met in the court's view. The court found that the evidence provided was insufficient to substantiate the claim of aggravation, and as such, the Regulator's decision to limit compensation to medical expenses was upheld. The court's reasoning was based on the principle that the Appellant must provide clear and convincing evidence to demonstrate the aggravation of a pre-existing condition, which was not achieved in this instance.

Consequently, the appeal was dismissed, and the original decision of the Regulator was affirmed. The Appellant was ordered to pay the costs of the Regulator. This decision underscores the importance of the Appellant's responsibility to provide compelling evidence to support claims of aggravation in workers' compensation cases. The court's ruling reinforces the principle that the burden of proof remains with the Appellant in such disputes, and where that burden is not met, the decision of the Regulator stands.

Orders

Orders of the court

The appeal is dismissed.

The Appellant is to pay costs of the Regulator.

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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