Arehjan v Workers' Compensation Regulator [2020] QIRC 98

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Arehjan v Workers' Compensation Regulator [2020] QIRC 098 PARTIES: Nadia Habibi Arehjan (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2019/157 WC/2020/36 WC/2020/37 PROCEEDING: Application DELIVERED ON: 3 July 2020 HEARING DATE: On the papers MEMBER: O'Connor VP ORDERS: 1. Pursuant to Rule 98 of the Industrial Relations (Tribunal) Rules 2011, I order that appeals WC/2019/157, WC/2020/36, and WC/2020/37 be joined and heard together. 2. That the evidence in one appeal be the evidence in the other appeals. 3. I will hear the parties in respect appropriate directions for the management of the appeals. CATCHWORDS: WORKERS' COMPENSATION - INDUSTRIAL LAW - APPLICATION FOR -- 1 of 12 -- 2 JOINDER – where Respondent seeks joinder of three appeals – where Appellant resists the joinder. PRACTICE AND PROCEDURE – application under Rule 98 of Industrial Relations (Tribunal) Rules 2011 – relevant factors in determining whether appropriate that proceedings be tried at same time LEGISLATION: CASES: Industrial Relations (Tribunal) Rules 2011 r 98 Bishop v Bridgeland Securities (1990) 25 FCR 311 Cameron v McBain [1948] VLR 245 Ghose v CX Reinsurance Co Ltd [2010] NSWSC 110 Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 Reynolds v Workers' Compensation Regulator [2019] QIRC 140 Reasons for Decision [1] Ms Nadia Habibi Arehjan has filed three appeals (WC/2019/157, WC/2020/36, WC/2020/37) against separate decisions of the Workers' Compensation Regulator. [2] On 5 May 2020 the Regulator filed an application pursuant to Rule 98 of the Industrial Relations (Tribunals) Rules 2011 seeking an order that the three appeals to which the appellant and the Regulator are parties, be joined. [3] The appellant opposes the application. The appeals [4] Each of the appeals have their origin in a motor vehicle accident described by the appellant as "On 10 th of February 2017, I hit the tree to avoid hitting a truck and to save -- 2 of 12 -- 3 my life…".1 At the time the appellant was employed as an engineer with Incitec Pivot Ltd. [5] As a consequence of the accident, the appellant suffered multiple injuries. A brief description of each of the appeals follows: • Appeal WC/2019/157 is in respect of the respondent's decision to confirm the termination of weekly entitlements for musculoligamentous injury to the cervical spine on and from 2 May 2019, in accordance with sections 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003. It is contended that the basis for termination was evidence from the appellant's treating specialist that there was no longer an "incapacity for work or a requirement for ongoing treatment with respect to your accepted work related neck injury". • Appeal WC/2020/36 is in respect of the respondent's decision to confirm the termination of weekly entitlements in the period 13 June 2018 to 23 July 2018, with respect to all accepted injuries except for the left wrist EDC tendonitis, in accordance with section 144A of the Act. It is contended that the basis for termination was that WorkCover was not satisfied the appellant had a "total or partial incapacity for work due to the accepted work related injuries as at 13 June 2018." • Appeal WC/2020/37 is in respect of the respondent's decision to confirm the termination of weekly entitlements in accordance with section 144A of the Act on and from 16 August 2019, for left wrist EDC tendonitis. It is contended that the basis for termination was that WorkCover was not satisfied the appellant had an "incapacity for work as a result of your accepted work related injury and as such, I consider you are not entitled to any further payments of weekly benefits". Statutory Framework [6] Rule 98 of the Industrial Relations (Tribunal) Rules 2011 (Qld) provides an express power to join proceedings: (1) A party to a proceeding before the court or commission may apply to the court or commission for the proceeding to be joined with another proceeding. (2) The court or commission may order 2 or more proceedings to be joined if it considers— a) substantially the same question is involved in the proceedings; or 1 Appellant Statement of Facts and Contentions for Appeal (WC/2019/157). -- 3 of 12 -- 4 b) the decision in 1 proceeding is likely to determine or seriously impact on the other proceedings; or c) it is otherwise appropriate or desirable. (3) When joining proceedings, it is not necessary— a) for a written order joining the proceedings to be made; or b) for the parties to consent. (4) If a party claims to be adversely affected by the joining of proceedings, the party may apply to separate the proceedings by advising the registrar and any other affected party in writing before the hearing of the proceeding. The Regulator's case for joinder [7] Accompanying the application for joinder is an affidavit of Ms Annika Schultz (Senior Appeals Officer of the Respondent). In that affidavit, Ms Schultz deposes: 3. On 10 February 2017 the Respondent [Ms Arehjan] sustained multiple injuries in a motor vehicle accident, the subject of statutory application reference S16TM387996 4. On 11 April 2017, WorkCover accepted liability in claim in claim S16TM387996 pursuant to sections 31 and 32 of the Workers Compensation Act Qld (2003) for 'fracture of femur'. 5. Following that initial acceptance, WorkCover extended liability in application S16TM387996 to include the following injuries: a. Fracture of left femur and subsequent knee problems; b. Adjustment disorder with mixed anxiety and depressed moods-moderate severity; c. Left shoulder strain with referred neck pain; d. Fractured nose; e. Capsuloligamentous injury and soft tissue injury left wrist; f. Musculoligamentous injury to the cervical spine; g. Fracture of distal sacrum / coccydynia; and h. Lumbosacral junction pain 6. On 17 May 2018, WorkCover terminated medical treatment and incapacity benefits to sections 144A and 144B of the Act in relation to the "Left shoulder strain with referred neck pain" condition. 7. On 8 June 2018, the Appellant lodged an application for review of the determination dated 17 March 2018. 8. On or around 3 August 2018, the Respondent confirmed the decision dated 17 May 2019 to terminate benefits for the "left shoulder strain with referred neck pain" condition. 9. On 3 May 2019, WorkCover terminated medical treatment and incapacity benefits pursuant to sections 144A and 144B of the WCRA in relation to the "musculoligamentous injury to the cervical spine" condition, effective 2 May 2019. -- 4 of 12 -- 5 10. On 12 May 2019, the Appellant lodged an application for review of the determination dated 8 May 2019. 11. On 27 May 2019 Ms Habibi Arehjan sustained a further injury to her left wrist during the course of a functional capacity evaluation arranged by WorkCover. WorkCover accepted liability for "Left wrist EDC tendonitis". That claim was ascribed file number S18CA607945. 12. Ms Habibi Arehjan was employed for part of the period from 27 May 2019 to 16 August 2019, when she was made redundant. She sought weekly incapacity payments from that date for her "Left wrist EDC tendonitis". 13. On or around 2 August 2019, the respondent confirmed the decision dated 3 May 2019, to terminate benefits for the " musculoligamentous injury to the cervical spine" condition. 14. On 31 August 2019 the Respondent commenced appeal WC/2019/157, in respect of the regulator's decision dated 2 August 2019 to confirm the termination of her entitlements for musculoligamentous injury to the cervical spine, in accordance with sections 144A and 144B of the Act. 15. By decision dated 26 November 2019, WorkCover determined to refuse to pay weekly incapacity payments with respect her "left wrist EDC tendonitis", claim number S18CA607945, from 16 August 2019. 16. On 3 March 2020 WorkCover determined that Ms Habibi Arehjan was not incapacited for employment from 13 June 2018 to 23 July 2018 (on 24 July 2018 she underwent nasal surgery, and was then off work again for a period), and terminated her entitlement to weekly compensation payments for that period, in relation to all of the injuries covered by claim S16TM387966, namely: a. Fracture left femur; b. Left knee condition secondary to femoral fracture; c. Left should strain with referred neck pain; d. Fractured nose; e. Soft tissue injury left wrist; f. Musculoligamentous injury to the cervical spine; g. Fracture of the distal sacrum/coccydynia; h. Soft tissue injury lumbar spine; i. Adjustment disorder with mixed anxiety and depressed moods. 17. On 18 March 2020 the Regulator upheld WorkCover's decision dated 26 November 2019. 18. On 18 March 2020 the Regulator upheld WorkCover's decision dated 3 March 2020. … 20. On 17 April 2020, Ms Habibi Arehjan lodged two further Notice of appeal, matter references WC/2020/36 and WC/2020/37 respectively. … 23. On 20 April 2020 Ms Habibi Arehjan forwarded correspondence to both the Regulator and the Commission, advising her intention to contest the cessation of benefits pursuant to both section 144A and 144B of the Act at the hearing of matter WC/2019/157. -- 5 of 12 -- 6 24. All three appeals filed by Ms Habib Arehjan concern the termination of entitlements in accordance with section 144A of the Act. In each, the Commission will need to determine whether Ms Habibi Arehjan was incapacitated for employment at particular points in time, and whether any such incapacity was because of her accepted conditions. 25. Two of the appeals have a further common issue, that is, what incapacity if any was and is caused in particular by the appellant's musculoligamentous injury to the cervical spine. 26. Should the three appeals proceed to hearing separately, the regulator considers that much documentary and oral evidence will overlap. In each appeal the regulator is likely to rely on similar factual evidence (such as Ms Habibi Arehjan's employment history post-injury, what tasks she performed, her conditions and hours of work, and what symptoms she reported) and medical evidence (such as medication and treatment at various times, and opinion evidence as to capacity). Although appeals WC/2020/36 and WC/2020/37 are still at an early stage, whereas WC/2019/159 is more advanced, it seems likely that: … 27. It may be also that Ms Habibi Arehjan wishes to call one or more of the same witnesses in each matter. 28. It is the position of the regulator that there is likely to be a significant overlap in the facts and evidence relevant to hearings of WC/2019/157, WC/2020/36 and WC/2020/37. 29. The regulator considers there is a real possibility of inconsistent findings, should the three matters not be joined. 30. The regulator is of the view that it is in the interests of justice that the appeals be heard together, noting Ms Habibi Arehjan is self-represented. Having only one hearing would alleviate the burden on Ms Habibi Arehjan, requiring her to give evidence and appear in one hearing as opposed to three. It would also reduce costs for both parties, again noting the cross over reference and documents. [8] The respondent submits that the appeals contain the following issues of commonality: • Each appeal has the same parties, and the outcome of each is of interest to only the parties; • Each appeal concerns the termination of entitlements in accordance with section 144A of the Act. In each of the appeals the Commission will need to determine whether the Appellant was incapacitated for employment at particular points in time since her injury (including to date), and whether any such incapacity is, and/or was, because of her accepted conditions. This encompasses questions of both fact and law; • In two of the appeals (WC/2019/157, WC/2020/37) the time period where incapacity is in issue, overlaps; -- 6 of 12 -- 7 • Two of the appeals (WC/2019157, WC/2020/36) particularly concern what incapacity (if any) was and is caused by the appellant's musculoligamentous injury to the cervical spine; and • Two of the appeals (WC/2020/36, WC/2020/37) particularly concern what incapacity (if any) was and is caused by the appellant's left wrist injuries (described as "soft tissue injury left wrist" and "EDC tendonitis left wrist"). [9] The respondent concedes that there are issues which are discrete to each appeal, such as the cessation of medical treatment benefits pursuant to section 144B of the Act which is only in issue in appeal WC/2019/157. However, the respondent submits based on the 'commonality of issues' there is likely to be a significant overlap in the facts and evidence in the appeals. In particular, the respondent submits that it is likely that: • In each appeal the respondent will rely on similar factual evidence (such as the appellant's employment history post-injury, what tasks she performed and when, her conditions and hours of work, and what symptoms she reported at various times); • The appellant will be required to give evidence in each appeal. Credit will be in issue; • Dr Dale Rimmington, treating orthopaedic surgeon (shoulder and spine) will give evidence in WC/2020/36 and WC/2019/157 in terms of his reports dated 8 June 2017, 18 July 2017, 9 November 2017, 16 February 2018, 29 March 2018, 10 April 2018 and 25 May 2018; • Independent medical examiner Dr Phil Allen, orthopaedic surgeon will give evidence in appeals WC/2020/36 and WC/2019/157 in terms of his report dated 30 April 2018 (shoulder and cervical spine assessment); • Independent medical examiner Dr Simon Journeaux, orthopaedic surgeon, will give evidence in WC/2020/36 and WC/2019/157 in terms of his report dated 28 June 2018 (assessment of all physical injuries); and • Dr Andrew Ryan will give evidence in matters WC/2020/36 and WC/2020/37 in terms of his reports dated 21 November 2017, 30 August 2019 and 6 March 2020 (left wrist injuries), and for his opinion in relation to an MRI of the left wrist dated 11 April 2018. -- 7 of 12 -- 8 The appellant's case opposing the joinder [10] The appellant outlines several bases for opposing the application, including: • There are no common witnesses except the Dr Journeaux; • Dr Ryan would only be an expert witness for WC/2020/37; • The appellant opposes the merging of the Statement of Facts and Contentions document for the three different matters as this will "deprive the appellant of the right to withdraw, the one of the appeals from the dispute"; • By joining the three appeals it will financially impact the appellant; • Appeal WC/2020/37 is about a different claim, in impairment assessment, the wrist injury will assess against of all injuries, however the impairment percentage will divide between two different cases, and this will have benefit for the appellant, former employer and WorkCover; and • Appeal WC/2019/157 is ready to be heard, however the two other cases will take another 6 months to be in the same situation.2 [11] The appellant's submission highlights the fact that she will require an interpreter due to English not being her first language and that "the appellant physically and mentally, is not ready for long time stress and pressure" and that " [joining the appeals] will increase the hearing time and will have huge pressure on the appellant". Consideration [12] Rule 98 of the IR Rules confers upon the Commission a broad and unfettered discretion to join matters if there is "substantially the same question is involved in the proceedings" or "the decision in 1 proceeding is likely to determine or seriously impact on the other proceedings" or "it is otherwise appropriate or desirable". [13] In Cameron v McBain Herring CJ wrote: The question would seem to be whether in all the circumstances it is convenient that the actions be consolidated, and in deciding whether it is convenient, regard may be had to such matters as the desirability of avoiding multiplicity of actions, and the saving of time and expense. At the same time the interests of the parties should not be prejudiced by the making of an order. 3 [14] In Bishop v Bridgeland Securities, Wilcox J said: 2 (errors in original). 3 [1948] VLR 245, 247. -- 8 of 12 -- 9 The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.4 [15] In Ghose v CX Reinsurance Co Ltd Austin J said Although his Lordship speaks of consolidation, in my view the same principles apply where the application is for a joint hearing. His Lordship's observations make it clear that the Court's essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings). A pragmatic approach requires close attention to the nature of the claims in each set of proceedings and the likely course of the litigation if the proceedings are consolidated or jointly heard, compared with the course of litigation if the proceedings remain separate. A pragmatic approach involves the Court bringing to bear its experience in the conduct of hearings and case management, taking into account such matters as the potential savings of time and expense of one outcome compared with the other, and also the basic imperative that every litigant is entitled to a fair opportunity to present his or her case to the Court. I was referred to s 56(1) of the Civil Procedure Act 2005 (NSW), but in my view the articulation of the overriding objective of facilitating the just, quick and cheap resolution of the real dispute between the parties simply confirms the approach to be taken to such matters as consolidation or joint hearing of proceedings.5 [16] Whilst the authorities suggest that a number of factors have been considered relevant in exercising a discretion to join matters, there are no inflexible rules. What the authorities recognise is that the approach to be taken by a court is one which is conducive to a just and fair resolution of the disputes between the parties, having regard to principles of case management and the desirability of limiting, so far as practicable, the costs and delay of the litigation. [17] In Reynolds v Workers' Compensation Regulator, I cited with approval the case of Humphries v Newport Quays Stage 2A Pty Ltd where Besanko J identified the following factors to assist in determining whether the discretion should be exercised: The critical question then is whether it is appropriate that the proceedings be tried together. In determining this question, the relevant factors are as follows: 1. Are the proceedings broadly of a similar nature? 2. Are there issues of fact and law common to each proceeding? 3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings? 4 (1990) 25 FCR 311, 314. 5 [2010] NSWSC 110 [27] (Citations omitted.) -- 9 of 12 -- 10 4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law? 5. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time? 6. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately? 7. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross- admissibility of evidence? 8. Is one proceeding further advanced in terms of preparation for trial than the others? 9. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time? 6 [18] Let me now turn to a consideration of the 'relevant factors' as identified by Besanko J in Humphries. It is apparent that factors 4 and 5 have no direct relevance or application to the present case. Are the proceedings broadly of a similar nature? [19] All three matters are 'broadly' of a similar nature each involving an appeal against a decision of the Workers' Compensation Regulator. The mechanism of injury is the same in respect of two of the three appeals. The third appeal relates to a claim that the injury arose out of or relates to an injury said to have arisen on 27 May 2019 during a functional capacity evaluation arranged by WorkCover, however, as I understand the reason for the appellant undertaking the functional capacity evaluation was because of her injuries sustained as a result of the motor vehicle accident. Are there issues of fact and law common to each proceeding? [20] Each appeal deals with the termination of entitlements in accordance with s144A of the WCR Act. Each appeal will require the Commission to determine whether the appellant was incapacitated for employment at particular points in time since her injury, and whether any such incapacity is, and/or was because of the appellant's accepted conditions. The Regulator rightly points out that the Commission's determination will involve questions of both fact and law. The Regulator drew the Commission's attention to the following further areas of commonality: (a) In appeals WC/2019/157 and WC/2020/37 the time period where incapacity is in issue overlaps; (b) Appeals WC/2019/157 and WC/2020/36 particularly concern what incapacity (if any) was and is caused by the appellant's musculoligamentous injury to her cervical spine; and 6 [2009] FCA 699 [11]. -- 10 of 12 -- 11 (c) Appeals WC/2019/36 and WC/2020/37 particularly concern what incapacity (if any) was and is caused by the appellant's left wrist injuries (described as "soft tissue injury left wrist" and "EDC tendonitis left wrist"). [21] In respect of each appeal, the appellant bears the onus of demonstrating that the Regulator has erred in its decisions to reject the appellant's claims. [22] Recognising that there is an overlap of issues and evidence and mindful that it may be necessary to make findings of credit, there is a potential that inconsistent findings could be made if the matters are not heard together. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings? [23] In addition to the evidence from the appellant, it is submitted by the appellant that the appeals share only one witness, orthopaedic surgeon, Dr Simon Journeaux. However, the Regulator submits that evidence will be called from the following four medical practitioners in respect of each of the three appeals: • Dr Rimmington, treating orthopaedic surgeon (WC/2020/36 and WC/2019/157); • Independent medical examiner Dr Phil Allen, orthopaedic surgeon (WC/2020/36 and WC/2019/157); • Independent medical examiner Dr Simon Journeaux, orthopaedic surgeon, (WC/2020/36 and WC/2019/157); and • Dr Andrew Ryan (WC/2020/36 and WC/2020/37). [24] Having regard to the commonality of issue to be determined, both factually and legally it is reasonable to accept that there will be equal commonality of lay and expert witnesses. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately? [25] The Regulator submits that having a single hearing of all three appeals is likely to reduce the overall time and costs for both parties. I agree. To that consideration is added the avoidance of expense (and inevitable delay) of having an interpreter for the appellant at each of three hearings rather than one. In addition, scheduling of the hearing will be enhanced if the matters are joined. The setting down of individual appeals would, by necessity prolong the determination of the appeals. -- 11 of 12 -- 12 [26] The joinder of the matters would avoid a second appearance by at least four medical witnesses; a second and third appearance by the appellant; the need to produce multiple sets of facts and contentions; a duplication of documentary records; and the issue of the interpreter, it is reasonable to assume that significant saving in hearing time, cost and the use of Commission resources is likely to ensue. [27] Finally, if the matters are heard separately there is a higher probability that issues concerning the availability of witnesses will occur. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence? [28] The parties have not brought to my attention any potential issues in respect of trial management, procedural issues or difficulties in determining admissibility of evidence should an order be made joining the appeals. I do not readily anticipate that any problems are likely. With appropriate directions and the advantage of a further s552A conference any potential problem can be readily addressed to ensure the efficient and effective disposition of the matter. Conclusion [29] Having considered the submissions of both the appellant and Regulator and weighing up the 'relevant factors' as identified by Besanko J in Humphries I have formed the view that the balance lies in favour of making an order pursuant to Rule 98 of the IR Rules. Order 1. Pursuant to Rule 98 of the Industrial Relations (Tribunal) Rules 2011, I order that appeals WC/2019/157, WC/2020/36, and WC/2020/37 be joined and heard together. 2. That the evidence in one appeal be the evidence in the other appeals. 3. I will hear the parties in respect appropriate directions for the management of the appeals. -- 12 of 12 --