Workers' Compensation Regulator v Simounds - [2023] QIRC 245

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Workers' Compensation Regulator v Simounds [2023] QIRC 245
PARTIES:	Workers’ Compensation Regulator (Applicant) v Simounds, Kevin Maurice (Respondent)
CASE NO:	WC/2022/28
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	25 August 2023
HEARING DATE:	7 July 2023
MEMBER: HEARD AT:	Pidgeon IC Brisbane
ORDERS:	1. Pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 556(2), Mr Simounds is to submit to an independent medical examination to be conducted by Dr Leigh Atkinson, Neurosurgeon on a date to be fixed. 2. That the Applicant pay all specialist fees relating to the independent medical examination. 3. That the Applicant pay all reasonable transport and/or accommodation costs necessary for Mr Simounds to attend the medical examination. 4. That upon receipt of the medical report by the Applicant, a copy will be provided to Mr Simounds through his representative.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – Application in existing proceedings for an order that the Respondent submit to a medical examination – whether the Commission should exercise its discretion to make an order pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 556
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld) s 556
CASES:	Atlas Marine International Pty Ltd v Q-COMP [2013] QIRC 61 Bridges Health & Community Care Ltd v Workers’ Compensation Regulator [2020] QIRC 9 Carpenter Investments (Qld) Pty Ltd t/a Lockyer Car & Dog Wash v Simon Blackwood [2014] QIRC 162 Cowen v Bunnings Group Limited [2014] QSC 301 Gray v Hopcroft & Anor [2000] QCA 144 Jetcrete Oz Pty Ltd v Blackwood (Workers’ Compensation Regulator) & Anor [2013] QIRC 186 State of Queensland (Acting through Department of Corrective Services) v Saville & Anor [2006] ICQ
APPEARANCES:	Mr P. O’Neill of Counsel directly instructed by Ms P. Lock of the Applicant Mr J. A. Greggery KC instructed by Ms E. Cox of Organic Legal for the Respondent

Reasons for Decision
Introduction

On 13 April 2023, the Workers’ Compensation Regulator (‘the Applicant’) filed an application in existing proceedings seeking an order pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 556(2) (‘the Act’), that Mr Kevin Maurice Simounds (‘the Respondent’) submit to an independent medical examination by a neurosurgeon, namely Dr Leigh Atkinson.

In its application, the Applicant outlines the following details of the decision sought:
1. An Order pursuant to section 556(2) of the Workers’ Compensation and Rehabilitation Act 2003 that the respondent to this application submit to an independent medical examination to be conducted either [sic] by Dr Leigh Atkinson, Neurosurgeon on a date to be fixed.
2. That the applicant pay all specialist’s fees relating to the independent medical examination and report.
3. That the applicant pay all reasonable transport and/or accommodation costs necessary for the respondent to this application to attend the medical examination.

4. That upon receipt of the medical report by the applicant a copy will be provided to the respondent.

5. That the respondent pay the applicant’s costs of and…

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.

Continue reading Workers' Compensation Regulator v Simounds

Details

AGLC: Workers' Compensation Regulator v Simounds [2023] QIRC 245
Case: [2023] QIRC 245
Decision Date: 25 August 2023

CaseChat Overview and Summary

The Workers' Compensation Regulator has brought an appeal against a decision of the Workers' Compensation Regulator concerning the claim of Mr Simounds for workers' compensation. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary issue before the Tribunal was whether the Workers' Compensation Regulator should exercise its discretion to order Mr Simounds to undergo a medical examination under section 556 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). The matter was heard on 7 July 2023, with written and oral submissions from both parties. The Tribunal considered the appeal notice, statements of facts and contentions, and the submissions made.

Mr Simounds, a heavy truck driver employed by Centurion Transport Pty Ltd, sought compensation for a cognitive deficit allegedly sustained during his employment. His claim was rejected by WorkCover, and the review unit upheld that decision. The Workers' Compensation Regulator applied for an order that Mr Simounds submit to a medical examination, asserting that his condition was relevant to the appeal and that the available medical evidence did not support his claim of injury. The Regulator argued that the order was necessary to properly assess the merits of the appeal.

The Tribunal found that the statutory provisions permitted the order in question and that it was appropriate to exercise the discretion to order the medical examination. The Tribunal was satisfied that Mr Simounds' condition was relevant to the appeal and that there was a need for further medical evidence to properly assess the merits of the appeal. The Tribunal ordered Mr Simounds to submit to a medical examination by Dr Leigh Atkinson, a neurosurgeon, with the costs of the examination to be borne by the Workers' Compensation Regulator. The Tribunal also ordered that a copy of the medical report be provided to Mr Simounds upon receipt by the Regulator.

Orders

Orders of the court

1. Pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 556(2), Mr Simounds is to submit to an independent medical examination to be conducted by Dr Leigh Atkinson, Neurosurgeon on a date to be fixed.

2. That the Applicant pay all specialist fees relating to the independent medical examination.

3. That the Applicant pay all reasonable transport and/or accommodation costs necessary for Mr Simounds to attend the medical examination.

4. That upon receipt of the medical report by the Applicant, a copy will be provided to Mr Simounds through his representative.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Act relevantly provides:556 Additional medical evidence(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 examination by 1 or more specified registered persons.(3)The appeal body may also, as the appeal body considers appropriate, make an order about—(a)the way, time and place of the examination; and(b)costs of the application for the order and of the examination.(4)An opinion formed on the examination must be given to the respondent and the respondent must make the opinion available to the appellant.(5)Subsection (6) applies if the claimant or worker—(a)fails, without reasonable excuse, to attend for the examination at the time and place ordered by the appeal body; or(b)having attended, refuses to be examined by a registered person; or(c)obstructs, or attempts to obstruct, the examination.(6)Any entitlement the claimant or worker may have to compensation is suspended until the claimant or worker undergoes the examination. The question before me is therefore whether this section applies to Mr Simounds’ appeal, and if so, whether I should exercise the discretion to make the order provided for in s 556(2). For the reasons which follow, I have determined to grant the application and make the orders set out below at [81]. The parties filed written submissions in preparation for this matter and subsequently made oral submissions at a hearing on 7 July 2023. In considering this application in existing proceedings, I have had regard to all submissions made by the parties, Mr Simounds’ Appeal Notice, and the parties’ respective Statements of Facts and Contentions.[1][1] Appeal notice filed 25 February 2022; Respondent’s Statement of Facts and Contentions filed 6 May 2022; Applicant’s Statement of Facts and Contentions filed 13 June 2022; Applicant’s submissions filed 2 May 2023; Respondent’s submissions filed 20 June 2023; T 1-2, l 29 – T 1-37, l 15. Mr Simounds was employed by Centurion Transport Pty Ltd (‘Centurion’) as a heavy truck driver and the period relevant to his appeal is between 1 March 2021 and 5 March 2021. He lodged an application for compensation with WorkCover on 7 May 2021 alleging that he sustained a personal injury described as a cognitive deficit due to the requirements of his role during the specified period.[2][2] Applicant submissions filed 2 May 2023, [2]-[3]. Mr Simounds received a decision of the review unit on 28 January 2022 in which it confirmed the decision of WorkCover to reject the claim. It is that decision which Mr Simounds appeals in the substantive matter before the Commission. Mr Simounds’ Injury The Applicant in this proceeding points to its Statement of Facts and Contentions where it sets out the medical evidence it says was available at the time of Mr Simounds’ alleged injury:61. On 9 March 2021 the Appellant’s salt levels were noted to be okay. 62. The objective testing and scans undertaken of the Appellant including a CT scan of the spine, Xray of the chest, CT scan of the head, AF Spine Lumbar Puncture, MRI of the Brain as summarised in the Appellant’s statement did not identify the Appellant as having sustained an injury, or the cause of the Appellant’s alleged symptoms.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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