QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | SAMI Bitumen Technologies Pty Ltd v Workers' Compensation Regulator [2024] QIRC 290 |
PARTIES: | SAMI Bitumen Technologies Pty Ltd v Workers' Compensation Regulator |
CASE NO: | WC/2024/122 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 11 December 2024 |
MEMBER: HEARD AT: | Pratt IC On the papers |
ORDER: | 1. Pursuant to section 556 of the Workers' Compensation and Rehabilitation Act 2003, Mr Ross Stewart must submit to a medical examination by either Dr Peter Boys or Dr Hugh English for the purposes of either of those doctors preparing a medico-legal report to be used in the Queensland Industrial Relations Commission in proceedings WC/2024/122. 2. The Appellant is to provide at least one week's notice to Mr Stewart of the date and time of the medical examination report appointment referred to above in order 1, however, that medical examination report appointment must occur no later than 15 February 2025. 3. The cost of the medical examination report appointment, production of any report and any of Mr Stewart's reasonable travel costs to and from such appointment are to be paid by the Appellant. 4. Should Mr Stewart, without reasonable excuse, fail to attend the scheduled medical examination report appointment referred to in order 1, he must reimburse the Appellant within 28 days for any costs reasonably incurred by it in relation to that failure. 5. Any medical examination report that is produced to the Appellant pursuant to order 1, must be provided to the Respondent within 7 days after the receipt of that report by the Appellant. 6. Orders numbered 6 through to 12 inclusive contained within the directions order dated 26 June 2024 are vacated. 7. The matter be listed for mention on 16 December 2024 at 10.00 AM for timetabling. 8. Costs be reserved. |
| CATCHWORDS: | INDUSTRIAL LAW – WORKERS' COMPENSATION APPEAL – where appellant, an employer, appeals decision of respondent to grant a workers' compensation to claim to a former employee, Mr Ross Stewart – where appellant filed an application in existing proceedings seeking orders that, among other things, Mr Stewart attend a medical examination for the purpose of obtaining a medico-legal report – consideration of section 556 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('Act') – where appellant submits that in the substantive matter it will argue that personal lifestyle factors were significant contributing factors to Mr Stewart's injury or aggravation of injury – where the appellant submits that the available medical reports do not consider key factors such as activities in Mr Stewart's personal life and Mr Stewart's body habitus when determining the causal relationship between Mr Stewart's exacerbated condition and Mr Stewart's duties at work – where Mr Stewart submits that he is not comfortable with undergoing a medical examination and does not understand why a further medical examination is necessary – where appellant submits that a key issue in the substantive matter is the extent of causation, if any, of Mr Stewart's alleged medical condition – where appellant submits that… |
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- Case
- [2024] QIRC 290
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether an order under section 556 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) could be made for Mr Stewart to undergo a medical examination. The court found that the cause, nature, and extent of Mr Stewart's injury were indeed issues in the substantive proceedings, and the current state of the medical evidence was inadequate. The court considered the two-stage test outlined in the relevant legislation, which includes determining if the potential facts in issue could become actual facts in issue in the appeal and exercising a broad discretion to balance the need for sufficient evidence against the medical autonomy of the claimant. The court held that the application was not a 'fishing expedition' and that the inconvenience to Mr Stewart could be managed by providing adequate notice. Given these considerations, the court granted the application, finding that a further report was not unlikely to provide different conclusions than those already available.
The court issued several orders, including that Mr Ross Stewart must submit to a medical examination by either Dr Peter Boys or Dr Hugh English to prepare a medico-legal report for the Queensland Industrial Relations Commission. The employer was to provide at least one week's notice to Mr Stewart before the examination, which was to occur no later than 15 February 2025. The costs of the medical examination, report production, and Mr Stewart's travel expenses were to be borne by the employer. Should Mr Stewart fail to attend the examination without reasonable excuse, he was to reimburse the employer for any incurred costs. The employer was also required to provide any produced report to the Regulator within seven days of receipt. The court vacated certain orders from a previous directions order and set a mention date for the matter. Costs were reserved.
Orders
Orders of the court
1. Pursuant to section 556 of the Workers' Compensation and Rehabilitation Act 2003, Mr Ross Stewart must submit to a medical examination by either Dr Peter Boys or Dr Hugh English for the purposes of either of those doctors preparing a medico-legal report to be used in the Queensland Industrial Relations Commission in proceedings WC/2024/122.
2. The Appellant is to provide at least one week's notice to Mr Stewart of the date and time of the medical examination report appointment referred to above in order 1, however, that medical examination report appointment must occur no later than 15 February 2025.
3. The cost of the medical examination report appointment, production of any report and any of Mr Stewart's reasonable travel costs to and from such appointment are to be paid by the Appellant.
4. Should Mr Stewart, without reasonable excuse, fail to attend the scheduled medical examination report appointment referred to in order 1, he must reimburse the Appellant within 28 days for any costs reasonably incurred by it in relation to that failure.
5. Any medical examination report that is produced to the Appellant pursuant to order 1, must be provided to the Respondent within 7 days after the receipt of that report by the Appellant.
6. Orders numbered 6 through to 12 inclusive contained within the directions order dated 26 June 2024 are vacated.
7. The matter be listed for mention on 16 December 2024 at 10.00 AM for timetabling.
8. Costs be reserved.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Appellant further submits that, in light of the foregoing arguments, an independent medical examination would assist the Commission to consider this appeal by providing information on the cause, nature and extent of the injuries claimed by the worker.[67] The Appellant argues that such information is needed given the legitimate concerns about the consistency,[68] interpretation, or context of the medical evidence available. The Appellant notes that there has been no objection to the use of Dr English or Dr Boys for any proposed independent medical examination,[69] and that any inconvenience to Mr Stewart can be managed by giving Mr Stewart at least 48 hours’ notice of the examination.[67] Citing Aldi Stores (n 43) [26].[68] Citing Aldi Stores (n 43) [61].[69] Citing Aldi Stores (n 43) [15], [68].Consideration The following principles can be summarised from the case law referred to above. Section 556 creates a two-stage test for an order requiring a claimant or worker to submit to a personal examination. The first stage requires that one of the two types of potential facts in issue contemplated in sections 556(1)(a) and (b) must be relevant to the appeal before the power for an order requiring a claimant to submit to a personal examination is enlivened. The first type of potential fact in issue is the condition of the claimant or worker who has, or is said to have, sustained an injury. The second type of potential fact in issue is the cause, nature or extent of the injury or incapacity arising from the injury. The words ‘relevant to the appeal’ require that there be a real, even if slight, possibility that the potential fact in issue may actually become a fact in issue in the appeal. It is, however, not enough to argue that the mere fact it is an appeal of a workers’ compensation claim means that evidence of the fact of injury or of cause, nature and extent of the injury arising from the injury are relevant. An argument that a potential fact in issue is relevant to the appeal must show how the potential fact in issue could become an actual fact in issue in the appeal. The second stage of the test is contained in Section 556(2). The second stage enlivens a discretion for making the orders. This discretion is broad and the factors that should be taken into account depend on the circumstances of the specific application. Yet, as I see it, in exercising the discretion the Commission should be guided by the need to achieve a balance between the need for sufficient and clear evidence underpinning the potential facts in issue and the medical autonomy of the claimant or worker. The two-stage test is, altogether, not an onerous one. Put simply, for an application of this nature to be refused, further medical evidence must really be unnecessary for the purposes of the appeal. Turning now to the present appeal, this application is virtually unopposed but for the fact that the non-party individual at the centre of all of the proceedings has expressed a desire not to be further examined on the basis of not understanding why that would be necessary. Even so, as Dwyer IC pointed out in RW & G Johnston, compelling a person to undergo a medical examination against their will is a significant step.[70][70] RW & G Johnston (n 29) [14].