Thorpe v Simon Blackwood (Workers' Compensation Regulator)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Thorpe v Simon Blackwood (Workers' Compensation

Regulator) [2014] QIRC 022

PARTIES: 

Thorpe, Dennis

(Appellant)

v

Simon Blackwood (Workers' Compensation
Regulator)

(Respondent)

CASE NO: 

WC/2012/475

PROCEEDING: 

Appeal against a decision of Simon Blackwood

(Workers' Compensation Regulator)

DELIVERED ON: 

3 February 2014

HEARING DATES: 

17, 18 September 2013

18 December 2013 (Respondent submissions)
30 January 2014 (Appellant submissions)

MEMBER: 

Deputy President Swan

ORDERS : 

1.	The appeal is allowed.
2.	The Regulator is to return the matter to WorkCover to determine when the Appellant's incapacity from the injury, including the surgery ceased.

CATCHWORDS: 

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – decision of Simon Blackwood (Workers' Compensation Regulator) – Appellant bears onus of proof – whether injury was

temporary and an aggravation of an existing

pathology – appeal allowed.

CASES: 

Workers' Compensation and Rehabilitation Act 2003

s 32(1), s 144A, s144B

APPEARANCES: 

Mr D. Thorpe, Appellant, in person.
Mr P. Rashleigh, Counsel directly instructed by
Simon Blackwood (Workers' Compensation
Regulator).

[1]      This application is made by Mr Dennis Thorpe (the Appellant) against a decision of Simon Blackwood (Workers' Compensation Regulator) formerly known as Q-COMP (the Regulator) which affirmed the decision made by WorkCover Queensland (WorkCover) to terminate workers' compensation paid to the Appellant from 8 September 2012.

[2]     In June 2012, the Appellant lodged an application for compensation with WorkCover for a left shoulder injury sustained on 15 May 2012. At the time of the injury the Appellant was employed as a Truck Driver/Traffic Controller with Allciv Pty Ltd (Allciv).

[3] WorkCover had accepted the Appellant's application for a musculoskeletal injury to his left shoulder, however, following a medical report from Dr Khursandi, WorkCover notified the Appellant on 16 October 2012 of its decision to terminate his entitlements to benefits and medical treatment from 8 September 2012 pursuant to sections 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

[4]      It is accepted that the Appellant was a 'worker' for the purposes of the Act and that he had suffered a personal injury to his left shoulder on 15 May 2012 which had been accepted as such by WorkCover.

[5]      The onus is on the Appellant to prove, on the balance of probabilities that his injury occurred on 15 May 2012 and was not a temporary aggravation of a pre-existing left shoulder pathology.

[6]      The Appellant represented himself in this hearing and the Regulator was represented by Counsel.

[7]      The question to be considered by the Commission is whether the Appellant's surgery and continuing incapacity past the cessation date of September 2012 is related to the injury of 15 May 2012 or whether it is related to the underlying degenerative medical condition of his left shoulder.

Legislation

[8]      Section 32 of the Workers' Compensation Act 2003 (the Act) defines "injury" relevantly as follows:

(3) Injury includes the following –

(a) …

(b) an aggravation of the following …

(i) a personal injury

(4) For subsection (3)(b), to remove any doubt, it is declared that…