State of Queensland (State Library of Queensland) v Waugh and Simon Blackwood (Workers' Compensation Regulator)

[2014] QIRC 90

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	State of Queensland (State Library of Queensland) v
Astrid Waugh and Simon Blackwood (Workers'
Compensation Regulator) [2014] QIRC 090
PARTIES:	State  of Queensland (State Library of
Queensland)
(Applicant)
v
Waugh, Astrid
(First Respondent)
and
Simon Blackwood (Workers' Compensation Regulator)
(Second Respondent)
CASE NO:	WC/2014/126
PROCEEDING:	Application for an Order that the Worker submit to
a personal medical examination
DELIVERED ON:	26 May 2014
HEARING DATE:	28 April 2014
MEMBER:	Industrial Commissioner Fisher
ORDER:	Application refused.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Application for order for medical examination by worker - whether an employer granted leave to be heard in a worker's appeal is a party to the appeal - whether an employer granted leave to be heard in a worker's appeal can request attendance notices to be issued - whether an employer must apply to vary the terms of the Order to take steps outside of those terms - whether the factors in s 556 are satisfied - whether an acceptable reason for the order can be established - an employer granted leave to be heard in a worker's appeal means to be heard fully and fairly - whether to facilitate an employer's case in a worker's appeal is a reason for an order that a
worker submit to a personal medical examination -
medical evidence about employment element and reasonable management action is helpful but not decisive - application refused.
CASES:	Workers' Compensation and Rehabilitation Act
2003, s 32, s 32(1), s 32(3), s 32(5), s 552A, s 556
Industrial Relations Act 1999, s 329(k)
Industrial Relations (Tribunals) Rules 1999, s 58(1)
Woolworths v Dinca & Simon Blackwood (Workers'
Compensation Regulator) [2014] QIRC 005
State of Queensland (Acting through Department of Corrective Services) AND Stephen Kevin Saville and
Q-COMP Review Unit [2006] 181 QGIG 277
State of Queensland AND Q-COMP (WC/2012/197) - Decision < Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision
Thorsten Groos and WorkCover Queensland (2000) QGIG 106 at 107 Q-COMP AND Darren Bruce Parsons [2007] 185 QGIG 1
APPEARANCES:	Ms S. Wishart, Crown Law for the Appellant. Mr W. Hampton, Hall Payne Lawyers for the First Respondent. Ms J. Webb for Simon Blackwood (Workers'
Compensation Regulator), the Second Respondent.

matters. That request was granted. Both Ms Waugh and the Regulator were given the opportunity to make written submissions in reply. Only Ms Waugh did so, although the Regulator provided case law and commentary about the conditions imposed on an employer granted leave to appear and be heard in a worker's appeal.

Basis of the application

[5] It is important to note that s 556 of the WCR Act is silent on who may make an application for an order that a person submit to a personal medical examination.

[6] For its application under s 556 of the WCR Act, the State of Queensland relied on medical records that had been produced in response to Attendance Notices to Produce it had requested. The Commission raised the question of whether a non-party could request Attendance Notices in light of s 58(1) of the Industrial Relations (Tribunals) Rules 2011 (the Rules) which provides that Attendance Notices can be issued at the request of a party. The term "party" is defined in the Rules only in relation to proceedings before Magistrates and thus has no operation in proceedings before the Commission.

[7] The State of Queensland referred to the definition of "party" in the Industrial Relations Act 1999 (the IR Act) which includes "a person bound by an industrial instrument or permit". Clearly, that definition is of no assistance in the present matter.

[8] Section 549 of the WCR Act provides that either a worker or an employer who is

aggrieved by a decision of the Regulator may appeal. The WCR Act does not make

provision for an employer to become a party to a worker's appeal, although a worker

may elect to become a party to an appeal by an employer. An employer wishing to

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participate in an appeal by a worker must seek leave under s 329 of the IR Act.

Only by order of the Commission is an employer permitted to appear and be heard in an appeal filed by a worker.

[9]     That the Legislature has deliberately not made available the same election to an employer in an appeal by a worker as provided to a worker in an employer appeal clearly evinces an intention that the employer in an appeal by a worker is treated differently and has a different status. This is reinforced by the requirement that an employer seek leave from the Commission to appear and be heard in an appeal filed by a worker. All of this demonstrates that an employer is not a party to a worker's appeal. Further, the fact that an employer is bound by the decision of the Commission from an appeal made by a worker does not alter that position to make it a party to the appeal.

[10]  The State of Queensland was granted leave to be heard in Ms Waugh's appeal. The

consent Order issued did not specifically include an Order which granted liberty to

the State of Queensland to request attendance notices to be issued. Rather, the Order

was directed to the employer being permitted to appear in any s 552A conferences

and its "rights" at trial. The Commission was referred to Woolworths Ltd v Dinca &

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Simon Blackwood (Workers' Compensation Regulator) where O'Connor DP exercised his discretion pursuant to s 329 of the IR Act to grant Woolworths Ltd the right to appear and be heard in the appeal proceedings instituted by Ms Dinca. The Deputy President also granted Woolworths Ltd liberty to request Attendance Notices be issued. It is not immediately apparent in the decision which section of the IR Act was relied on to make the Order to request Attendance Notices, however, given that s 329 of the IR Act was found to be the appropriate section vesting the Commission with discretion to grant leave to an employer to appear and be heard, it may be inferred that the Order to request Attendance Notices be issued was made pursuant to s 329(k) of the IR Act. This section permits the Commission to waive compliance with the Rules.

[11]   The consent Order granting the State of Queensland leave to be heard in Ms Waugh's

appeal did not specifically grant liberty to the State of Queensland to request

Attendance Notices be issued. The Commission accepts that the conditions

attaching the grant of leave to appear and be heard in an appeal may be subject to

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reconsideration, however, no application for reconsideration was made in this case. Given the absence of such an application, the Commission does not understand that implicit in the issuing of the Attendance Notices to Produce in Ms Waugh's appeal is a decision by the Commission to waive compliance with the Rules. It follows that the Attendance Notices to Produce issued at the request of the State of Queensland were issued in error. As a result, the grounds of the application referable to the medical records obtained as a result of the Attendance Notices to Produce for seeking the order pursuant to s 556 of the WCR Act fall away.

[12]  The Commission accepts however that it was likely that the Regulator would seek to obtain Ms Waugh's medical records and these would have been disclosed to the State of Queensland in due course. The parties to the present application and the State of Queensland submit that the Commission should deal with the application now as to deal with the application after such disclosure was made would cause unnecessary delay and additional cost.

[13] It seems to have been assumed by the parties to the appeal and the State of Queensland that the State of Queensland would then be equipped to make an application pursuant to s 556 of the WCR Act. As mentioned earlier that section does not prescribe who may make an application for an order that a worker submit to a personal medical examination. The consent Order sets out the conditions attaching to the appearance of the State of Queensland in the appeal but does not make specific provision for it to make applications relevant to the hearing. It may be that the State of Queensland may need to make an application to amend the consent Order to be permitted to make an application, including an application pursuant to s 556 of the WCR Act. However, that question will remain unresolved because I have decided to accept the submission of the parties and the State of Queensland that the application for a s 556 order should be determined in light of the time and cost factors.

Merits of the application

[14]  The State of Queensland submits that the extent of the past medical conditions and personal factors and the impact of those matters upon any psychiatric condition has not previously been explored in any of the medical reports. Further, the medical reports do not address, or adequately address, the issue of any pre-existing medical condition and the extent to which such psychiatric/psychological condition caused and/or contributed to the Appellant's alleged psychiatric injury.

[15] In addition, the State of Queensland contends that there is currently no medical evidence that adequately addresses the issue of causation for the purposes of the WCR Act, particularly:

	whether significant non-work stressors caused or significantly contributed to any current psychiatric condition of Ms Waugh;
	whether Ms Waugh's expectation or perception of reasonable management action being taken against her and the extent to which that expectation or perception caused/contributed to her condition;
	Ms Waugh's List of Stressors; and
	the employer's account of the alleged stressors.

[16] For these reasons, the State of Queensland seeks the Commission make an order under s 556 of the WCR Act.

[17]  Ms Waugh opposes the making of such an order for a number of reasons. Importantly, she contends that none of the medical issues identified in the various notes caused her to decompensate. It was only the workplace issues, which I do not intend to outline, that caused her to apply for workers' compensation. Further, the report of the psychiatrist to whom Ms Waugh was referred by WorkCover Queensland, discloses her presentation was due to workplace issues. Ms Waugh's treating psychiatrist and clinical psychologist also provided reports to WorkCover Queensland detailing relevant background issues.

[18]  Ms Waugh also provided an affidavit stating, "[I]t is emotionally draining for me to recount the events that led to my injury and I would not want to go through the process again unless it was necessary." Ms Waugh further states that she would abide by the order of the Commission.

Conclusion

[19] Section 556 of the WCR Act provides in part -

"(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 medical examination by 1 or more specified registered persons."

[20] This section provides discretion to the Commission to make any order. I adhere to

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the view expressed in State of Queensland AND Q-COMP that the satisfaction of

one (or both) of the factors mention is s 556(1) does not mean that the Commission

will positively exercise its discretion in favour of the applicant for an order. An

5

applicant must have an acceptable reason for the request. In the present matter, I accept that s 556(1)(b) is satisfied. However, an acceptable reason needs to be established for the order to be made.

[21]  The predominant reasons for the request appear to be the extent to which Ms Waugh's previous medical history and perception of her employer's actions caused or contributed to her psychiatric/psychological condition and to ensure the employer's account of the alleged Stressors is taken into account by the psychiatrist in forming an opinion. The State of Queensland also seeks that the psychiatrist be "independent", that is one by whom Ms Waugh has not previously been examined. Against that is the submission that the two psychiatrists have been provided with Ms Waugh's relevant medical history. Further, Ms Waugh is reluctant to attend because of the emotional impact caused by submitting to a further examination.

[22]  A worker appellant bears the onus of establishing that the decision of the Regulator

was wrongly made. A worker appellant has the onus to establish all of the elements

6

of s 32(1) or, where relevant s 32(3), of the WCR Act. A worker appellant is also

required to negative any issue raised under s 32(5) of the Act raised by their own

7

evidence or evidence led by the Regulator or by an employer where that employer

has been granted leave to appear and be heard in the proceedings.

[23]  The Commission notes that the Regulator's review decision found that Ms Waugh

suffered a personal injury within the meaning of s 32 of the WCR Act. The

Commission is unaware whether the Regulator will be conceding this element in the

trial of the appeal, however, the neutral position taken by the Regulator in respect of

this application tends to suggest that it is not contesting the medical evidence.

8

Further, as Hall P said in Thorsten Groos and WorkCover Queensland,

"The question whether an applicant for compensation has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive." (Note: although the Act has changed the principle remains the same.)

[24] The Commission accepts that to be heard in an appeal means to be heard fully and

9

fairly and of reasonable extent. Further, the Regulator does not stand in the shoes

10

of the employer, even where the employer is the State of Queensland. The employer is to be allowed the opportunity to conduct its case including where its interests are different to those of the Regulator. However, it is one thing to allow the employer the opportunity to participate in proceedings fully and fairly but quite another to say that to facilitate its case the worker must be ordered to submit to a personal examination in the hope that the employer obtains evidence to prosecute its case. In my view, the interests of the worker must be taken into account as well as an assessment made of the state of the medical evidence already obtained.

[25]  It must be remembered that Ms Waugh has already undergone a medical assessment by an independent specialist as well as by her treating psychiatrist, has consulted her General Practitioner and is being treated by a psychologist. Further, Ms Waugh will be required to give evidence to the Commission about the workplace issues which she claims caused her to decompensate. The Commission accepts that personal medical examinations are intrusive and in the circumstances of this case, is concerned about the effect on Ms Waugh of her repeated relating of her story. An order to submit to such an examination is likely to cause her further distress.

[26]  It seems from the medical information provided that not all of Ms Waugh's medical history or personal circumstances were made known to the two psychiatrists but it is apparent that they were told of other mental health issues. Both have expressed opinions that the current condition stems from incidents in the workplace and that she had been functioning well and without medication for an extended period. No attempt has been made by the State of Queensland to elicit further information from the two psychiatrists.

[27] The Commission further notes that Ms Waugh appeals the Regulator's review decision on the basis of its findings with respect to s 32(5), that is the Regulator found that Ms Waugh's injury arose out of or in the course of reasonable management action taken in a reasonable way. All of the stressors identified by Ms Waugh in her Statement of Stressors filed on 10 April 2014 identify management actions. Although I do not dispute that the satisfaction of the injury elements may be relevant to this appeal, it is likely that the focus of the hearing will be on whether the injury is excluded from compensation because management action was reasonable and taken reasonably. I accept that Ms Waugh and the employer have different perspectives on the reasonableness of the management action.

[28]  Although the Commission is usually guided by medical evidence, ultimately the

question of whether management actions can be characterised as reasonable and

reasonably taken are mixed matters of fact and law for the Commission to determine

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based on the evidence. In balancing the competing interests and given the key matters to be litigated, I consider either the independent or both psychiatrists should be able to provide an opinion about the matters raised by the State of Queensland. I do not find that in the circumstances of this case that the State of Queensland has established an acceptable reason for requiring an order pursuant to s 556 of the WCR Act to be made.

[29] The application is refused.

Decision

[1] Astrid Waugh filed an appeal against the decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator). The State of Queensland (State Library of Queensland) (hereinafter referred to as "the State of Queensland") applied to the Queensland Industrial Relations Commission (the Commission) for leave to appear and be heard in the appeal. By consent Order dated 12 March 2014, the State of Queensland was granted leave to be heard. The conditions attaching to that leave are set out in the consent Order. On 16 April 2014 the State of Queensland made an application pursuant to s 556 of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act) that Ms Waugh be ordered by the Commission to submit to a personal medical examination.

[2]     Ms Waugh opposes such an order being made.

[3]     The Regulator neither supports nor opposes the application.

[4]     The Commission heard the application on 28 April 2014, however, as a result of raising certain issues with the parties to the application, the State of Queensland requested the opportunity to further consider and make written submissions on those

1 

Woolworths v Dinca & Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 005.
2

ibid.

3

State of Queensland (Acting through Department of Corrective Services) AND Stephen Kevin Saville and

Q-COMP Review Unit [2006] 181 QGIG 277.
4
State of Queensland AND Q-COMP (WC/2012/197) - Decision <
5

ibid at [19] citing Woolworths (Qld) P/L v Berry-Porter [2002] QSC 360 at [27].

6
Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision .
7
ibid
8
Thorsten Groos and WorkCover Queensland (2000) QGIG 106 at 107.
9

State of Queensland (Acting through Department of Corrective Services) AND Stephen Kevin Saville and

Q-COMP Review Unit [2006] 181 QGIG 277 at 278.
10 ibid.
11

Q-COMP AND Darren Bruce Parsons [2007] 185 QGIG 1 at 3.