Workers' Compensation Regulator v Adcock

Case [2022] ICQ 16

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Workers’ Compensation Regulator v Adcock [2022] ICQ 016

PARTIES:

WORKERS’ COMPENSATION REGULATOR

(appellant)

v
MALCOLM ADCOCK

(respondent)

FILE NO/S:

C/2021/14

PROCEEDING:

Appeal

DELIVERED ON:

24 May 2022

HEARING DATE:

20 October 2021 and 4 March 2022

MEMBER:

Davis J, President

ORDER/S:

1.   The appeal is dismissed.

2.    The respondent file and serve upon the appellant by 3 June 2022 any written submissions on the costs of the appeal.

3.    The appellant file and serve upon the respondent by 10 June 2022 any written submissions on the costs of the appeal.

4.    The respondent file and serve upon the appellant by 17 June 2022 any submissions in reply on the costs of the appeal.

5.   The parties have leave to file and serve by 1 July 2022 any application for leave to make oral submissions on the costs of the appeal.

6.    In the absence of any application to make oral submissions on the costs of the appeal being filed by 1 July 2022, the question of costs will be decided on any written submissions filed without further oral hearing.

CATCHWORDS:

APPEAL AND NEW TRIAL - INTERFERENCE WITH JUDGE’S FINDINGS OF FACT - where the appellant is the Workers’ Compensation Regulator (the Regulator) under the Workers’ Compensation and Rehabilitation Act 2003 (WorkCover Act) - where the respondent was injured at work and claimed workers’ compensation payments - where WorkCover ceased the payments on the basis that the respondent was no longer incapacitated - where the Regulator confirmed the decision of WorkCover - where the Queensland Industrial Relations Commission (QIRC) ruled that the respondent was incapacitated at a later date - where the Regulator appealed the QIRC’s ruling - where the Regulator alleged that the Industrial Commissioner asked herself the wrong question - where the Regulator alleged that the Industrial Commissioner had made findings not supported by any evidence - where the respondent contended that the judgment of the QIRC should be upheld on grounds that he was partially incapacitated - whether error in the QIRC is shown

Industrial Relations Act 2016, s 557
Workers’ Compensation and Rehabilitation Act 2003, s 114B, s 144, s 144A

CASES:

Abalos v Australian Postal Commission (1990) 171 CLR 167, followed
Adcock v Workers’ Compensation Regulator [2017] QIRC 086, related
Adcock v Workers’ Compensation Regulator [2021] QIRC 227, related
Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, followed
Colbran v Workers’ Compensation Board of Queensland (1996) 152 QGIG 1180, cited
DL v The Queen (2018) 266 CLR 1, followed
Fox v Percy (2003) 214 CLR 118, followed
Greer v Greer [2021] QCA 143, followed
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed

APPEARANCES:

D Callaghan instructed by the Workers’ Compensation Regulator, the appellant

A Wright of Boylan Lawyers for the respondent

  1. This is an appeal by the Workers’ Compensation Regulator against a decision of the Queensland Industrial Relations Commission (QIRC)[1] varying the Regulator’s decision made under s…

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AGLC
Workers' Compensation Regulator v Adcock [2022] ICQ 16
Case
[2022] ICQ 16
Decision Date

CaseChat Overview and Summary

The appeal before the court is by the Workers' Compensation Regulator (Regulator) against a decision of the Queensland Industrial Relations Commission (QIRC), which varied the Regulator's decision concerning the respondent's entitlement to workers' compensation payments. The respondent, Mr Adcock, who was injured at work, had his claims for compensation varied by the QIRC, which ruled that he was partially incapacitated at a later date, contrary to the Regulator's decision. The Regulator's appeal hinges on the contention that the QIRC erred in its findings of fact and in the question it asked itself in reaching its decision.

The key legal issues before the court were whether the QIRC had erred in its findings of fact, particularly concerning the timing of the respondent's incapacity and the evidence relied upon. The Regulator argued that the QIRC had misapplied the standard of proof required and had made findings not supported by evidence. Additionally, the Regulator contended that the QIRC had improperly rejected or ignored material evidence from Dr Ng. The court was tasked with determining whether the QIRC's decision contained any legal errors that warranted interference.

In dismissing the appeal, the court found that the Regulator's criticisms of the QIRC's reasons were semantic and overly critical. The court held that the QIRC's reasons were adequate, and the Regulator's appeal failed to demonstrate any error in the QIRC's findings. The court emphasised that the QIRC was entitled to draw inferences from the evidence presented and that the Regulator's appeal did not meet the threshold for overturning the QIRC's decision. The court concluded that the QIRC's determination that Mr Adcock was partially incapacitated at a later date was supported by the evidence and that the appeal should be dismissed.

The court's final orders were that the appeal be dismissed, and directions were given for the determination of issues of costs. The respondent was required to file and serve written submissions on the costs of the appeal by a specified date, with similar deadlines set for the Regulator and for any reply submissions. The court also provided for the possibility of an application for leave to make oral submissions on the costs of the appeal, with a final decision on costs to be made on written submissions if no such application was filed.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal by the Workers’ Compensation Regulator against a decision of the Queensland Industrial Relations Commission (QIRC)[1] varying the Regulator’s decision made under s 144A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Workers’ Compensation Act). [1]Adcock v Workers’ Compensation Regulator [2021] QIRC 227.Background The respondent, Mr Adcock, was employed as a camp cook. On 25 August 2015, he suffered an injury to his left ankle while at work. As he was not capable of resuming employment, Mr Adcock made a claim under the Workers’ Compensation Act. Mr Adcock’s claims for compensation have a lengthy history which is not necessary to repeat.[2] [2]Adcock v Workers’ Compensation Regulator [2021] QIRC 227 at [3]-[7] and see Adcock v Workers’ Compensation Regulator [2017] QIRC 086. By the time the present case fell for decision in the QIRC, the Regulator’s decision was:1.there was no entitlement to payments of weekly compensation after 26 August 2016;[3] and2.Mr Adcock has an entitlement to payment of medical expenses and hospitalisation until 21 February 2018 but not beyond.[4][3]Workers’ Compensation and Rehabilitation Act 2003, s 144.[4]Workers’ Compensation and Rehabilitation Act 2003, s 144B. Mr Adcock appealed that decision to the QIRC. The appeal was allowed and the following orders made:“1.That the decision of the Workers’ Compensation Regulator be set aside.2.That pursuant to s 144A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the Appellant’s[5] incapacity is determined to have ceased as at 30 November 2017.3.That pursuant to s 144B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the Appellant’s requirement for medical treatment continued until 27 February 2018, being 20 business days following receipt of the notice of assessment and offer pursuant to s 190. 4.That the Respondent pay the costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.”[5]A reference to Mr Adcock. The Regulator appeals part of the QIRC’s decision. It accepts order 3 made by the QIRC but submits that the QIRC erred in making order 2. It submits that the entitlement to payments of weekly compensation ended on 26 August 2016, not 30 November 2017. By application to appeal, the Regulator raised three grounds of appeal and a fourth was added by amendment. The four grounds of appeal are:“1.Whilst acknowledging the onus of proof rested with the appellant worker in the Commission (now the respondent) to demonstrate that he had an incapacity to work after 26 August 2016 arising from the accepted left ankle injury arising from his employment on 25 August 2015, the Commission erred in effectively reversing the onus of proof onto the respondent Regulator (now the appellant) by basing its decision on being ‘not persuaded that there is sufficient evidence that the appellant was no longer incapacitated for work after 26 August 2016 as a result of his injury’.2.The Commission erred in determining that the respondent has an incapacity to work after 26 August 2016 when there was no accepted evidence to support that finding.3.The Commission erred in making its determination by drawing an inference about incapacity based on a possibility, rather than applying the required standard of proof.4.The Commission erred by improperly rejecting or ignoring material evidence of Dr Ng.”The issues in the present appeal

Evidence

Evidence Before The Court

At paragraphs [81] and [82] of the judgment below, this was said:“[81] The decision to be made is whether the Appellant had an ongoing incapacity for work at the time compensation ceased on 26 August 2016 and had an entitlement to medical treatment beyond 21 February 2018. The Appellant bears the onus of proof that his incapacity because of the work related injury had not ceased at 26 August 2016 and compensation for medical treatment continued beyond 21 February 2018.[82]Whether the incapacity had resolved on or before weekly payments and benefits were ceased is a question to be determined primarily on the medical evidence. The onus rests with the Appellant to show that after 26 August 2016, in accordance with the principles in Thompson, the Appellant had a disability preventing him from doing work in the labour market open to a cook or in any other labour market which, based on the Appellant’s employment history, he may have reasonably expected to work.”[17] (emphasis added)[17]Adcock v Workers’ Compensation Regulator [2021] QIRC 227. The Regulator takes issue with paragraph [82]. It is submitted that the question is not “whether the incapacity had resolved” but “whether [Mr Adcock] adduced probative and persuasive evidence that it[18] had continued”.[19][18]The incapacity.[19]Written submissions filed on 2 August 2021 at [35]. That submission reflects a semantic and overly critical analysis of the reasons which is contrary to authority. In Soulemezis v Dudley (Holdings) Pty Ltd,[20] Kirby P (as his Honour then was) in dissent in the result said, in a passage subsequently approved by the High Court in DL v The Queen:[21]“This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed fact questions and to list the findings on the principal contested issues.”[22][20](1987) 10 NSWLR 247.[21](2018) 266 CLR 1 at [33].[22]At 259. In DL,[23] it was observed, following Soulemezis:“At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge’s conclusion’.[24] At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[25]”[23]At [33]. [24]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.[25]Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443.

Decision

Reasons for decision

The appeal should be dismissed.Conclusions and orders The appeal must be dismissed. Directions should be given for the determination of issues of costs. It is ordered that:1.The appeal is dismissed.2.The respondent file and serve upon the appellant by 3 June 2022 any written submissions on the costs of the appeal.3.The appellant file and serve upon the respondent by 10 June 2022 any written submissions on the costs of the appeal.4.The respondent file and serve upon the appellant by 17 June 2022 any submissions in reply on the costs of the appeal.5.The parties have leave to file and serve by 1 July 2022 any application for leave to make oral submissions on the costs of the appeal.6.In the absence of any application to make oral submissions on the costs of the appeal being filed by 1 July 2022, the question of costs will be decided on any written submissions filed without further oral hearing.

Ratio Decidendi

Legal Principle Established

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