Smith v Workers' Compensation Regulator

Case [2024] QIRC 223


QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith v Workers' Compensation Regulator [2024] QIRC 223

PARTIES:

Smith, Bradley Scott
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

WC/2022/191

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

10 September 2024

HEARING DATES: 

6 and 7 November 2023

MEMBER:

HEARD AT:

O'Connor VP

Townsville

ORDER:

1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:

(a)     the review decision of the Respondent is set aside; and

(b) another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003.

2.    Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a)    the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Friday 4 October 2024; and

(b)     unless otherwise ordered, the decision on costs be determined on the papers.

CATCHWORDS:

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - APPEAL AGAINST REVIEW DECISION - where appellant employed as maintenance planner at Mount Isa Mines - where appellant suffered injury to his right elbow, wrists and both knees as he was exiting the bus - where bus door could not open when it arrived at the bus stop - where appellant used emergency override and showed the bus driver how to use the manual override to open the door - where electrically operated step did not automatically deploy when the bus door opened as was its usual operation - where height of the top step of the bus to the ground was approximately 50 cm - where appellant fell to the ground impacting both knees, both wrists and right elbow - where appellant fractured right elbow - where compensation approved for right elbow, wrist and left knee - whether appellant suffered an injury to right knee as a result of the incident within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 - whether there was an aggravation of pre‑existing degenerative change to the patellofemoral joint - whether injury arose out of or in the course of his employment - whether employment was a significant contributing factor to the injury

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 558

Industrial Relations (Tribunals) Rules 2011, r 41

Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538
Austen v Tran [2022] ACTSC 114
Chattin v WorkCover Queensland (1999) 161 QGIG 531
Commonwealth of Australia v Lyon (1979) 24 ALR 300
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Holtman v Sampson [1985] 2 Qd R 472

Luxton v Q‑Comp (2008) 190 QGIG 4

Mason v Demasi [2009] NSWCA 227

Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 13 April 1987)
Poulsen v Q-COMP

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AGLC
Smith v Workers' Compensation Regulator [2024] QIRC 223
Case
[2024] QIRC 223
Decision Date

CaseChat Overview and Summary

The case of Smith v Workers' Compensation Regulator involved an appeal by the appellant against a review decision made by the Workers' Compensation Regulator. The appellant, who was employed as a maintenance planner at Mount Isa Mines, sustained injuries to his right elbow, wrists, and both knees when exiting a bus that had mechanical issues. The appellant's claim was for workers' compensation under the Workers' Compensation and Rehabilitation Act 2003, specifically regarding whether the injuries to his right knee arose out of or in the course of his employment and whether his employment was a significant contributing factor to the injuries.

The court had to determine if the appellant had sustained an injury to his right knee as a result of the incident and if there was an aggravation of pre-existing degenerative change to the patellofemoral joint. The appellant needed to prove that the injury arose out of or in the course of his employment and that his employment was a significant contributing factor to the injury, bearing the onus of proof on the balance of probabilities. The court examined the evidence provided by the appellant, including his testimony and medical reports, to assess the credibility of his claims.

The court found that the appellant had sustained an injury to his right knee, which was an aggravation of pre-existing degenerative change to the patellofemoral joint. The court was persuaded by the medical evidence and the appellant's testimony that the incident on the bus was a significant contributing factor to this injury. The court set aside the review decision of the Workers' Compensation Regulator and substituted it with a decision that the appellant had suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003. The court also directed the parties to exchange written submissions on the costs of the hearing and scheduled a decision on costs to be made on the papers.

Orders

Orders of the court

[103] I make the following orders:

1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:

(a) the review decision of the Respondent is set aside; and

(b) another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003.

2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a) the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a-half spacing with numbered paragraphs and pages) by 4.00 pm on Friday 4 October 2024; and

(b) unless otherwise ordered, the decision on costs be determined on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Appellant has not, it is contended, sustained an injury in accordance with the provisions of the WCR Act because he has failed to discharge the onus of establishing that his personal injury arose out of, or in the course of, employment with Glencore and/or his employment was not a significant contributing factor to the personal injury.[12][12] Ibid, [38].Evidence In his evidence-in-chief, the Appellant recalled the incident on the afternoon of 2 August 2021:… The afternoon I got on the bus at [indistinct] Yes?---The driver had a problem shutting the door and making the bus go. Right?---He eventually got it moving. We got to X41 where he could not open the door at all and someone else was pushing on the door. Then he got up and tried pushing on the door as well [indistinct] whole thing. There's an emergency overwrite to open - release the door. Yes?---He knew nothing about it. That's the bus driver?---The bus driver.Right?---So I proceeded to show him how it worked. Then I think there was a person in front of me that got down. The bus [indistinct] I don't know. Then I remember just walking out, seeing no step and falling to the ground.[13][13] TR1-11, LL24-39. The Appellant went on to say:Now, the step that you said wasn't there, is that the bottom-most step below the - where the door opens?---Yes. And can you describe what should have happened in respect of that step?---That step is supposed to be released and come out.When the door opens?---When the door opens. Yes?---And retract back in when the door shuts. Okay. We can see a yellow tag on an open compartment on the side?---Yes.Do you recognise that from - - -?--- [indistinct] an out of service tag. And out of service tag. And in terms of your involvement with this incident and your involvement in light maintenance planning, can you - did you later come to understand the cause of what had happened?---Yes. The alternator was faulty on the bus causing the electrics not to work.[14][14] TR1-12, LL30-47. The Appellant further said "I remember exiting with my right foot … was going to go onto the step but the step wasn't there. I just remember it was going to hurt and that was it" and he recollected "being face down on the ground with my hard hat flying off, my safety glasses flying off and just lying on the ground".[15][15] TR1-13, LL32-37; Exhibit 3. The surface on which the Appellant fell was concrete and the distance between the step inside the bus from which the Appellant stepped to the concrete was approximately 50‑60 centimetres.[16][16] TR1-14, LL2-10. The Appellant said he was in pain and could only move his elbow a little bit. He did not complete the Statement of Incident which was "scribed by Teneil Bruton, RN/paramedic" a nurse at the medical centre. After he attended and spoke to the nurse the Appellant went straight to Dr Tan, GP who gave him a referral for an x-ray of his arm.[17][17] TR1-15, LL3-17; TR1-15, LL25-36. In respect of other injuries as a result of the incident, the Appellant said "I … the doctor on the first three occasions that my knees were sore and he said that we'll see how they go, they should settle down".[18][18] TR1-15, LL42-44.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In cross-examination the following exchange with Dr Shooter took place:I'm simply saying that causation does not equate to correlation. So he has an MRI showing he has a tear and he has pain, the two are not necessarily directly related.No. But they're consistent, is my point?--- Well, they're not inconsistent.All right. And ultimately,I take it then of the differing opinions about the nature of the injury that exists between Dr Wilkinson and Dr Brosnan, and despite the limitations of a file review, you are in large - largely in agreement with the fact that on the 2nd of August 2021, Mr Smith had a significant aggravation of preexisting degenerative change to the patellofemoral joint, as expressed by Dr Wilkinson?---Yes. If we accept Mr Smith's story, which we are required to do from a medical legal view point.Yes. And that includes, as I say, the parts that I took you to?---Yes. That's correct.To be clear, if you accept the parts that I took you to, that is your opinion?---Yes.[70][70] TR2-23, L38-TR2-24, L6.Consideration There is no dispute that the Appellant suffered injuries in the course of his employment on 2 August 2021, nor is there any issue that he sustained injuries in respect of right radial head fracture and left patella contusion all of which were accepted injuries for the purposes of the WCR Act. The real issue in these proceedings is whether the Appellant injured his right knee in addition to injuring other parts of his body when alighting from the bus on 2 August 2021. An injury "in the course of employment" means an injury sustained while the worker is engaged in the work that he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person's employment to do that work.[71][71] Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304 (Deane J); Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 478 (Mason CJ, Deane, Dawson and McHugh JJ); Theiss Pty Ltd v Q-COMP [2010] ICQ 10. The case advanced by the Appellant is that there was an aggravation of pre-existing degenerative change to the patellofemoral joint. That aggravation, if proved, would fall within the definition of "injury" for the purpose of s 32(1) of the WCR Act by virtue of s 32(3)(b) so long as the Appellant can also prove that the aggravation arose out of, or in the course of, his employment and the employment is a significant contributing factor to the aggravation. The Appellant bears the onus of establishing his entitlement to compensation. That is, it is for the Appellant to demonstrate to the Commission that the Respondent's decision was wrongly made. The standard of proof is on the balance of probabilities. Proof on the balance of probabilities requires actual persuasion.[72] [72] Nguyen v Cosmopolitan Homes [2008] NSWCA 246. The principles relevant to the discharge of the onus of proof were discussed in Nguyen v Cosmopolitan Homes[73]where McDougall J (McColl and Bell JJA agreeing) said:44. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour's statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.45. Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 where his Honour said that "[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied". Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161 - 162, and Mason J (with whom Brennan J agreed) in the same case at 168.46. It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.47. In Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.48. On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours' approach, what is required is a determination of the respective probabilities of the event's having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.[74][73] Ibid.[74] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.