Serco Australia Pty Ltd v Workers' Compensation Regulator

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:     

Serco Australia Pty Ltd v Workers' Compensation Regulator [2017] QIRC 114

PARTIES:       

Serco Australia Pty Ltd
(Applicant)

v

Workers' Compensation Regulator
(Respondent)

WC/2017/159

PROCEEDING:

Application for an Order that the Worker submit to a personal examination by a registered medical specialist   

DELIVERED ON:

HEARING DATES:

21 December 2017

6 December 2017

HEARD AT: 

Brisbane

MEMBER:

Industrial Commissioner Black

ORDER:

1.      The application is granted;

2.      Orders issued dealing with the conduct of an independent medical examination; and

3.      Costs are reserved.

CATCHWORDS:

WORKERS’ COMPENSATION - APPEAL AGAINST DECISION – INDEPENDENT MEDICAL EXAMINATION - Application for order for medical examination - whether the factors in s 556 are satisfied - whether an acceptable reason for the order has been established.

CASES:

Workers' Compensation and Rehabilitation Act 2003 s 556.

APPEARANCES:

Ms D Callaghan, Counsel, instructed by McCullough Robertson on behalf of Serco Australia Pty Ltd;
Mr P B O’Neill, Counsel, directly instructed, for the Workers’ Compensation Regulator.

Decision

Introduction

1. Ms Sharon Barrass lodged an application for workers’ compensation with WorkCover on 10 May 2017 in respect to a right shoulder injury which she said was caused by an incident at work on 14 April 2017. Ms Barrass was employed by Serco Australia Pty Ltd as a Custodial Officer at the Southern Queensland Correctional Centre.

1. On 8 June 2017, WorkCover rejected Ms Barrass’ application on the basis that it was not satisfied that her employment was a significant contributing factor in the development of her shoulder condition. However, on review, the Workers’ Compensation Regulator (the regulator) review unit held that the injury was compensable.

1. Serco Australia Pty Ltd lodged an appeal against the regulator’s decision on 1 September 2017.

1. On 3 November 2017, Serco made an application pursuant to s 556 of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act) that Ms Barrass be ordered by the Commission to submit to a personal medical examination.

1. The regulator opposes such an order being made.

1. The Commission heard the application on 6 December 2017.

1. It is not in dispute that Ms Barrass has sustained a right shoulder injury and that the determination to be made in the substantive hearing of Serco’s appeal is whether the injury satisfies the test of association with employment as prescribed by s 32(1) of the WCR Act.

Background

1. It is expected that in the substantive hearing a significant question to be answered will be whether CCTV footage of both the 14 April 2017 incident in which Mr Barrass claims to have sustained her shoulder injury, and also of work activities completed by Ms Barrass in the days following 14 April 2017, raises material doubts about whether the shoulder injury could have been caused by events at work on 14 April 2017.

1. The relevance and weight assigned in the decision making process to the CCTV footage is expected to be significantly informed by expert medical evidence adduced during the hearing of the appeal.

Legislation

1. Section 556 of the WCR Act provides:

556    Additional…