Sharples v Simon Blackwood (Workers' Compensation Regulator) - [2015] ICQ 22

INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Sharples v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 022
PARTIES:	Sharples, Kaye Leslie (Applicant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent)
CASE NO:	C/2015/38
PROCEEDING:	Appeal against decision of Industrial Commissioner
DELIVERED ON:	13 August 2015
HEARING DATE:	13 August 2015
MEMBER:	Deputy President O'Connor
ORDERS :	1. The appeal is dismissed. *2. Pursuant to s 556 of the Workers' Compensation and Rehabilitation Act* 2003, Kaye Leslie Sharples is to submit to an independent medical examination by Dr Martin Nothling at Silverton Place, 101 Wickham Tce, Spring Hill, QLD, 4000 at 10.00 am on Tuesday 18 August 2015. 3. Dr Nothling is to examine Mrs Sharples for the purpose of assessing her and preparing a medical report to advise the Commission whether in his opinion Mrs Sharples is medically fit: (a) to provide instructions to litigate her own appeal, give evidence-in-chief, and be cross-examined; or (b) to litigate her own appeal, give evidence-in-chief, be cross-examined, call her own witnesses, and cross-examine any witnesses called by the Regulator. 4. As soon as practicable after that examination, Dr Nothling is to provide to the Commission a written report containing his opinion, and the basis on which he has formed that opinion, in relation to the matters specified in order 2. 5. The Regulator is to pay the costs of that independent medical examination, the report and the reasonable travel costs to and from the medical examination incurred by Mrs Sharples. 6. If, without reasonable cause, Mrs Sharples does not attend the medical examination by Dr Nothling at the time and place specified, she will be required to reimburse the Regulator for the reasonable costs, if any, incurred by it in relation to the medical examination. 7. The parties' costs in 2015/WC000059 will be reserved to the Member hearing that appeal. 8. There will be no order as to costs with regards to this appeal.**
CATCHWORDS:	WORKERS' COMPENSATION - APPLICATION FOR COSTS - Appeal against a decision of an Industrial Commissioner to order the applicant to submit to an independent medical examination - Appeal dismissed.
CASES:	Workers Compensation and Rehabilitation Act 2003, s 556 House v The King (1936) 55 CLR 499 Simon Blackwood (Workers' Compensation Regulator) v Sharples [2015] QIRC 139
APPEARANCES:	Mr C.J. Clark, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator). Mr T.P. Sharples, representative of the Applicant.

DECISION from the bench

This is an appeal by Kaye Leslie Sharples against a decision given by Industrial Commissioner Neate at Brisbane on 31 July 2015, where the Commissioner made a number of orders pursuant to section 556 of the Workers' Compensation and Rehabilitation Act 2003, requiring that Mrs Sharples submit to an independent medical examination.

Section 556 of the Act provides:
"Section 556 Additional medical evidence
(1) This section applies if—
(a)the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or
(b)the cause, nature or extent of the injury or…

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.

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Details

Case: [2015] ICQ 22
Decision Date: 13 August 2015

CaseChat Overview and Summary

Kaye Leslie Sharples appealed a decision of the Workers' Compensation Regulator, which rejected her application for workers' compensation. The Regulator sought an order under section 556 of the Workers' Compensation and Rehabilitation Act 2003, requiring Mrs Sharples to submit to an independent medical examination. The Regulator sought the order to determine whether Mrs Sharples was medically fit to litigate her own appeal and to give evidence in the appeal. Mrs Sharples opposed the application. The appeal before the court was against the Commissioner's decision to order Mrs Sharples to submit to an independent medical examination. The court had to determine whether the Commissioner had correctly exercised his discretion to order the medical examination.

The court found that the Commissioner had correctly exercised his discretion in ordering Mrs Sharples to undergo a medical examination. The court held that the Commissioner was not required to be satisfied that the medical examination was necessary and that the medical evidence was relevant to the appeal. The court also held that the Commissioner was not required to be satisfied that the medical examination was reasonable and proportionate to the nature and extent of the appeal. The court found that the Commissioner had properly considered the evidence and the relevant factors in making his decision. The appeal was dismissed, and the order requiring Mrs Sharples to submit to a medical examination was upheld. The court also made orders for the medical examination to be conducted by Dr Martin Nothling, for Dr Nothling to provide a written report to the Commission, and for the Regulator to pay the costs of the medical examination and the reasonable travel costs to and from the examination incurred by Mrs Sharples.

Orders

Orders of the court

1. The appeal is dismissed.

2. Pursuant to s 556 of the Workers' Compensation and Rehabilitation Act 2003, Kaye Leslie Sharples is to submit to an independent medical examination by Dr Martin Nothling at Silverton Place, 101 Wickham Tce, Spring Hill, QLD, 4000 at 10.00 am on Tuesday 18 August 2015.

3. Dr Nothling is to examine Mrs Sharples for the purpose of assessing her and preparing a medical report to advise the Commission whether in his opinion Mrs Sharples is medically fit:

(a) to provide instructions to litigate her own appeal, give evidence-in-chief, and be cross-examined; or

(b) to litigate her own appeal, give evidence-in-chief, be cross-examined, call her own witnesses, and cross-examine any witnesses called by the Regulator.

4. As soon as practicable after that examination, Dr Nothling is to provide to the Commission a written report containing his opinion, and the basis on which he has formed that opinion, in relation to the matters specified in order 2.

5. The Regulator is to pay the costs of that independent medical examination, the report and the reasonable travel costs to and from the medical examination incurred by Mrs Sharples.

6. If, without reasonable cause, Mrs Sharples does not attend the medical examination by Dr Nothling at the time and place specified, she will be required to reimburse the Regulator for the reasonable costs, if any, incurred by it in relation to the medical examination.

7. The parties' costs in 2015/WC000059 will be reserved to the Member hearing that appeal.

8. There will be no order as to costs with regards to this appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 556 of the Act provides:"Section 556 Additional medical evidence(1) This section applies if—(a)the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or(b)the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal.(2) The appeal body may, at any time before or after the start of the hearing, order the claimant or worker to submit to a personal examination by 1 or more specified registered persons.(3) The appeal body may also, as the appeal body considers appropriate, make an order about—(a) the way, time and place of the examination; and(b) costs of the application for the order and of the examination.(4)An opinion formed on the examination must be given to the respondent and the respondent must make the opinion available to the appellant.(5) Subsection (6) applies if the claimant or worker—(a)fails, without reasonable excuse, to attend for the examination at the time and place ordered by the appeal body; or(b)having attended, refuses to be examined by a registered person; or(c)obstructs, or attempts to obstruct, the examination." Mrs Sharples challenges a number of the orders made by the Commissioner on that occasion. The applicant was required to be medically examined to assess her psychiatric and psychological health in regard to being able to effectively participate in some forthcoming hearings which have been set down to commence in Brisbane on 31 August 2015. An amended application of appeal was filed in the Commission on 5 August 2015. Not all of the matters contained within the amended application of appeal were argued before me today. Mrs Sharples relevantly is claiming that she suffered a personal injury by way of a psychiatric or psychological disorder, namely a major depressive order and generalised anxiety disorder, or aggravation of her injury. The injury she says, as a secondary teacher at the Palm Beach Currumbin State High School, arose out of or of the course of her employment and that her employment was the major significant contributing factor to her injury for aggravation of the injury. On 12 March 2015, Mrs Sharples lodged her notice of appeal with the Queensland Industrial Relations Commission against the decision of the Regulator rejecting her application for compensation. Mrs Sharples was represented before the court today by her representative, Mr Terry Patrick Sharples. The matter before Commissioner Neate was that the Regulator was seeking an order under section 556 of the Act, requiring Mrs Sharples to submit to a medical examination. In particular, to be satisfied she was medically fit firstly to litigate her own appeal, give evidence-in-chief, be cross-examined, call her own witnesses and cross-examine any witnesses called by the Regulator or alternatively to provide instructions to litigate her own appeal, give evidence-in-chief and to be cross-examined. The application was opposed by Mrs Sharples.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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