Simon Blackwood (Workers' Compensation Regulator) v Sharples - [2015] QIRC 139

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Simon Blackwood (Workers' Compensation Regulator) v Sharples [2015] QIRC 139
PARTIES:	Simon Blackwood (Workers' Compensation Regulator) (Applicant) v Sharples, Kaye (Respondent)
CASE NO:	WC/2015/207
PROCEEDING:	Application for an Order that the worker submit to a personal examination by a registered medical specialist
DELIVERED ON:	31 July 2015
HEARING DATES:	30 July 2015
MEMBER:	Industrial Commissioner Neate
ORDERS:	1. 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 Bradley Ng at Currumbin Clinic, Suite 3, 37 Bilinga Street, Currumbin, at 1.30 pm on Monday 10 August 2015. 2. Dr Ng 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. 3. As soon as practicable after that examination, Dr Ng 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. 4. 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. 5. If, without reasonable cause, Mrs Sharples does not attend the medical examination by Dr Ng 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. 6. The parties' costs of this application are reserved to the Member hearing the appeal in 2015/WC000059.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Application by Workers' Compensation Regulator for order that the worker submit for medical examination - whether worker is medically fit to provide instructions to her agent to litigate her appeal - whether worker is medically fit to give evidence and be cross-examined - whether factors in s 556(1) of Workers' Compensation and Rehabilitation Act 2003 are satisfied - whether Commission should exercise its discretion to make an order
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 556 Blackwood v Mana [2014] ICQ 027 (31 October 2014) Darius Adair Carter AND Q-COMP (2007) 185 QGIG 245
APPEARANCES:	Mr C.J. Clark, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator) Mr T. Sharples, representative of the Appellant

Decision

Introduction

Kaye Leslie Sharples is a secondary school teacher. She claims that:
(a)     she suffered a personal injury by way of a psychiatric or psychological disorder (namely a Major Depressive Order and Generalised Anxiety Disorder) or an aggravation of her injury;
(b)     the injury arose out of, or in the course of, her employment at Palm Beach Currumbin State High School; and
(c)     her employment was…

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.

Keep reading for free

Create a free CaseChat account to read Simon Blackwood (Workers' Compensation Regulator) v Sharples and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QIRC 139
Decision Date: 31 July 2015

CaseChat Overview and Summary

In the case of Simon Blackwood (Workers' Compensation Regulator) v Sharples, the Workers' Compensation Regulator sought an order under section 556 of the Workers' Compensation and Rehabilitation Act 2003 for the worker, Kaye Leslie Sharples, to undergo an independent medical examination to assess her medical fitness to provide instructions to litigate her appeal, give evidence, and be cross-examined. The legal issues in the case revolved around whether the factors in section 556(1) of the Act were satisfied to warrant the Commission exercising its discretion to make an order. The court was required to determine whether the Regulator had established that Mrs Sharples was medically unfit to participate in the appeal process, and if so, whether the Commission should exercise its discretion to order her to undergo a medical examination.

The court considered the medical evidence provided by Mrs Sharples and the concerns raised by the Regulator. While the court acknowledged that Mrs Sharples appeared attentive and capable during the hearing, it noted that she had a history of psychological injury and had previously been deemed unfit to give evidence. The court also observed that some of the medical opinions provided by Mrs Sharples' treating doctors were based on limited information about the specific circumstances of the appeal. Given these factors, the court decided that it was appropriate to seek an independent medical opinion to assess Mrs Sharples' capacity to participate in the appeal. The court further decided to obtain a report on her capacity to conduct the appeal as a litigant in person, considering the possibility that she may need to take over the conduct of the appeal if her husband, who was appointed to represent her, becomes unwell.

In conclusion, the court ordered that Mrs Sharples be subject to an independent psychiatric examination by Dr Bradley Ng, with the examination to be conducted at the Currumbin Clinic. Dr Ng was to assess Mrs Sharples' capacity to provide instructions, give evidence, and be cross-examined, as well as her capacity to litigate the appeal as a litigant in person. The Regulator was to provide Dr Ng with relevant case information, including the trial plan and extracts from the court's reasons for decision. The court also ordered that the Regulator pay the costs of the medical examination, the report, and Mrs Sharples' reasonable travel costs. If Mrs Sharples failed to attend the medical examination without reasonable cause, she would be required to reimburse the Regulator for any incurred costs. The parties' costs of the application were reserved to the Member hearing the appeal.

Orders

Orders of the court

1. 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 Bradley Ng at Currumbin Clinic, Suite 3, 37 Bilinga Street, Currumbin, at 1.30 pm on Monday 10 August 2015.

2. Dr Ng 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.

3. As soon as practicable after that examination, Dr Ng 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.

4. 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.

5. If, without reasonable cause, Mrs Sharples does not attend the medical examination by Dr Ng 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.

6. The parties' costs of this application are reserved to the Member hearing the appeal in 2015/WC000059.

Background

Background to the litigation

In response to the Directions Order dated 23 July 2015, Mr Sharples filed a written submission and supporting affidavit sworn on 28 July 2015. He subsequently provided two medical certificates.Background to the application The events leading to, and said to provide the basis of, the Regulator's application for the order under s 556 are set out (together with 16 relevant documents) in the affidavit of Marisha Mees, a Senior Appeals Officer employed in the office of the Regulator who has the conduct and control of this matter on behalf of the Regulator. It is not necessary to repeat all that information. However, it is appropriate to summarise some of the events preceding the filing of the Regulator's application. Mrs Sharples had a separate workers' compensation appeal before the Commission in relation to a different decision of the Regulator (WC/2014/244). On 2 February 2015, Mr Sharples wrote to the Commission in relation to that matter advising, among other things, that his wife "is still currently under psychiatric care and would be unable to give evidence in the immediate future." Dr Adem Cam, a consultant psychiatrist, issued a medical certificate dated 2 February 2015 in which he stated that Mrs Sharples was not fit to attend the hearing listed on 11 February 2015 "due to her psychiatric predicaments." On 14 April 2015 the Commission granted Mrs Sharples leave to withdraw the application in relation to WC/2014/244. On 26 March 2015, Ms Mees attended a call over held by Vice President Linnane. According to Ms Mees's affidavit, Mrs Sharples was not in attendance but Mr Sharples attended and advised the Commission that his wife was not currently well but was hoping her condition would improve prior to the matter being heard, and he stated that she needed to be better as they were not able to continue with this financially. A conference under s 552A of the Act was scheduled. The Vice President directed that Mrs Sharples attend in person as this would give her an opportunity to see how she would cope. Mr Sharples disputes aspects of Ms Mees' statement in relation to the call over. In particular, he states that:(a) he advised the Vice President that Mrs Sharples had suffered a work-related psychological injury from which she was recovering; and(b) the Vice President made no direction for Mrs Sharples to attend the s 552A conference.(I note that s 552A(2) of the Act states: "The parties must attend the conference.") In an email dated 23 April 2015 to the relevant Commissioner's associate, Mr Sharples stated that no directions were made for either himself or Mrs Sharples to attend the conference in person. He advised that Mrs Sharples "currently suffers from a psychological injury" and that he would attend the conference in person on his wife's behalf. Mr Harry Theodore, a clinical psychologist, signed the following statement dated 23 April 2015 which was addressed to the Commission: In an email dated 24 April 2015, Mr Sharples advised the Commission that he would not be attending the conference later that day in person as planned as he would need to support his wife as her registered representative in the telephone conference. He further advised that he had purchased a mobile phone with an external speaker system to aid clear communication, and that Mrs Sharples would be available during the conference to take questions from the Commissioner (if necessary) and would be fully able to hear all matters to be discussed and respond as required.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I note that at the hearing on 30 July 2015, Mrs Sharples appeared attentive to the proceedings. She appeared to follow them closely, and frequently provided observations and instructions to her representative. When she gave evidence at short notice and with little time to prepare, her evidence was responsive to the questions and clearly expressed. Where she did not recall something (such as the number of times when she had consulted a particular doctor), she was frank about that. Her demeanour on that occasion, albeit in relatively benign circumstances, suggests that she is capable of giving evidence in the appeal and providing instructions to her representative. However, I am not a medical specialist and have not had any previous dealings with Mrs Sharples so am not able to assess her capacity to function in that way in the course of a protracted and detailed appeal hearing.Conclusion It will be apparent from the discussion above that the factors which could influence the exercise of the Commission's discretion are relatively evenly balanced. However, because of some unusual features of this case, I have decided to direct that Mrs Sharples be subject to an independent psychiatric examination. In essence, I am concerned that at least two of the three doctors on whose statements Mrs Sharples relies apparently did not have information about the length and complexity of the hearing of the appeal. There is no reason to doubt that their opinions were honestly given, but there is reason to doubt whether those opinions were based on information about the particular circumstances of this appeal. I will not speculate as to whether that information would have affected the opinion of any or all of those doctors. Consequently, I am satisfied that it is appropriate that an independent medical opinion be sought. Although Mrs Sharples has appointed Mr Sharples to represent her, and it is clear that she intends to proceed on the basis that he will be present throughout the hearing, I will also seek a report on Mrs Sharples' capacity to conduct the appeal as a litigant in person. I have decided to do that because:(a) some of the delays in complying with directions have been as a direct result of Mr Sharples being unwell, and consequently it is at least possible that Mrs Sharples will have to take over the conduct of her appeal at some stage; and(b) if Mr Sharples is to give evidence at the hearing (a course of action that is apparently intimated by including him in the latest list of witnesses to be called by Mrs Sharples), then Mrs Sharples may need to conduct the examination-in-chief and any re-examination of him. The Regulator nominated three possible medical specialists, one of whom (Dr Bradley Ng) practises relatively close to Mrs Sharples' residence. Mrs Sharples expressed a preference to attend at his practice if a direction was made under s 556 of the Act, and that seems appropriate. It is important that Dr Ng be made aware of the proposed duration of the hearing, the number of witnesses to be called by each party, the estimated time for the Sharples to give evidence, and the other features of the case with which she will have to deal as a litigant in person. It might assist if Dr Ng were provided with a copy of the trial plan prepared by the parties in accordance with directions orders, and with relevant extracts from these reasons for decision (particularly paragraphs [52] to [54]). The Regulator should provide that material to Dr Ng before the date of the medical examination.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.