Arehjan v Workers’ Compensation Regulator [2020] ICQ 19

INDUSTRIAL COURT OF QUEENSLAND CITATION: Arehjan v Workers’ Compensation Regulator [2020] ICQ 019 PARTIES: NADIA HABIBI AREHJAN (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) FILE NO/S: C/2020/15 WC/2019/157 WC/2020/36 WC/2020/37 PROCEEDING: Appeal DELIVERED ON: 1 October 2020 HEARING DATE: 27 August 2020 MEMBER: Davis J, President ORDER/S: The appeal is dismissed. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant challenges a decision joining three appeals which the appellant has brought to the Commission against decisions made by the Workers’ Compensation Regulator – where the appeals to the Commission relate to termination by WorkCover of benefits and treatment to the respondent following injuries she sustained from a motor vehicle accident while working as an engineer – where the decision is a case management decision – where the primary judgment demonstrates an orthodox approach to the exercise of a statutory discretion – whether an appealable error was made in exercising the discretion to join the appeals Industrial Relations Act 2016, s 557 Industrial Relations (Tribunals) Rules 2011, r 98 Workers’ Compensation and Rehabilitation Act 2003, s 144 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, followed Arehjan v Workers’ Compensation Regulator [2020] QIRC 098, related Greystone Distributions (Qld & NSW) Pty Ltd & Ors v Rostron Carlyle Solicitors & Ors [2020] QCA 126, cited House v The King (1936) 55 CLR 499, followed Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699, cited -- 1 of 9 -- 2 APPEARANCES: The appellant appeared for herself H Blattman for the respondent [1] Ms Arehjan challenges the decision of Vice President O’Connor1 joining three appeals (the joinder order) which Ms Arehjan has brought to the Commission against decisions made by the Workers’ Compensation Regulator (the Regulator). The joinder order was made upon the application of the Regulator. Nature of the appeal [2] Rule 98 of the Industrial Relations (Tribunals) Rules 2011 (the Rules) was the source of jurisdiction for the making of the joinder order. That rule provides: “98 Joining 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 (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.” [3] Rule 98(2) permits the making of a joinder order. Rule 98(4) vests jurisdiction to make an order separating proceedings (a separation order) which have been joined. [4] Ms Arehjan has filed an application to appeal the joinder order2 and seeks the following orders from the Court: “The appellant is requesting the following actions: • Under rule 98 cl (4) Please Separate the appeals • and fix the hearing time for WC/2019/157, 1 Arehjan v Workers’ Compensation Regulator [2020] QIRC 098. 2 Rule 8(3) of Part 5, Division 3. -- 2 of 9 -- 3 • Two the other appeals didn't have the first conference, Please advise the Conference 552A’s date for two other appeals (WC/2020/36, WC/2020/37) • The appellant is looking for clarity who will be responsible for the financial and physical damages by increasing the stress on her, in the result of the joining proceedings” 3 [5] The Rules “apply to a proceeding before the court, the commission, a magistrate or the registrar”.4 Rule 98 only applies to a “proceeding” before the Commission and the Court. The only “proceeding” which is before the Court is the appeal from the decision of Vice President O’Connor. The three appeals from the decisions of the Regulator are proceedings in the Commission and not the Court. [6] Rule 98(4) is not relevant to the appeal. It vests jurisdiction in the Commission to make a separation order. [7] I am not considering whether, in the exercise of discretion under r 98(4), I should make a separation order. I am considering, on appeal, the decision of Vice President O’Connor to make a joinder order. Despite the way the application to appeal is framed, I shall deal with the matter as an appeal from the decision of Vice President O’Connor making the joinder order. [8] The issue for me is whether the joinder order ought to be set aside as wrongly made. As that order resulted from an exercise of discretion, the question is whether a House v The King5 error was committed.6 Courts are particularly loathe to interfere with case management orders (which a joinder order is).7 [9] The relief claimed by Ms Arehjan in the second and third bullet points are directions in the three appeals from the decision of the Regulator. Those proceedings are, as already observed, before the Commission. It is for the Commission, not the Court, to consider the giving of directions in those appeals. [10] Ms Arehjan’s last bullet point raises no matter which is relevant to the appeal. History [11] On 10 February 2017, Ms Arehjan, who was employed as an engineer, was involved in a motor vehicle accident. She suffered various injuries and made claims under the Workers’ Compensation and Rehabilitation Act 2003 (WCR Act). She received benefits. [12] In due course, WorkCover made three decisions to terminate benefits. Ms Arehjan sought review of those decisions by the Regulator who confirmed each decision. She then filed appeals to the Commission. They are matters: 3 Reproduced faithfully as it appears in the application to appeal. 4 Rule 5. 5 (1936) 55 CLR 499. 6 Industrial Relations Act 2016, s 557. 7 See Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc7 recently considered in Greystone Distributions (Qld & NSW) Pty Ltd & Ors v Rostron Carlyle Solicitors & Ors [2020] QCA 126 at [31]- [33]. -- 3 of 9 -- 4 1. WC/2019/157; 2. WC/2020/36; 3. WC/2020/37. [13] The claims in WC/2019/157 and WC/2020/36 concern injuries sustained directly in the motor vehicle accident. WC/2020/37 concerns an injury sustained during a functional capacity evaluation conducted by WorkCover. Ms Arehjan’s complaints on appeal [14] The application to appeal is a difficult document to understand. There are nine grounds of appeal. These are: “1 - The Appellant health wasn't considered, the appalent has developed several syncops in last three years under stress/pain 2 - The responsibility of the damage to the health of the appellant is not clear. In case of syncope, because of increasing the stress by join process, the consequence is unknown. Responsibility of the damage payment needs to be clear. 3 - There is a psycolical claim in respondent’s witness memo. In the event of proving that there is a psychological (mental) injury, in addition to the plaintiff’s physical injury, the appellant needs to lodge the new evidence to tribunal and re-open the tribunal outcome by 9th of September 2020. 4 - in paragraph #4, the commisioner didn’t consider that Appeal WC/2019/157 is in respect of respondent’s decision to confirm the termination of treatment for musculoligamentus injury and misdiagnose of the injury to cervical spine by a specialist. In the result, the regulator decision about the incapacity for work would be appealed. 5 - The commisioner didn’t consider that by removing the non- required witnesses in WC/2020/36, the cost for both party will be decreased. 6 - The commisioner didn’t consider that what is the purpose of each proposed witness. WC/2019/157 is regards to Neck injury. The respondent has declared in conference 522A dated 15th of April that two Specialists MR. Dale Rimmington and Dr. Allen will testify for shoulder injury. The Appelent will request to remove the expert witnesses who are not relevant to the case in trial plan. This will be save the cost and the time. The respondent has provided the feedback for neck injury related to matter WC/2019/157 from Dr. Bryant and Dr. Journeaux, no feedback has been provided by Dr. Dale Rimmington and Dr Phil Allen. 7 - Paragraph #19, the new wrist injury accepted by WC under new claim with new diagnosis. WC/2020/37 -- 4 of 9 -- 5 8 - WC/2019/157 mainly deals with 144B of WCR Act 2003, while the other appeals don’t deal with 144B of WCR Act. 9 - WC/2019/157 outcome is new evidence/Material for WC/2020/36” 8 [15] Attached to the application to appeal is a submission which consists of a reproduction of various paragraphs of the judgment of Vice President O’Connor with commentary challenging the correctness of what is stated in the paragraphs. What is reproduced are part of paragraphs 5, 10, 19, 20, 23, 25 and 28 of the Vice President’s judgment. [16] The challenged portion of paragraph 5 of the judgment is: “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’.” [17] What is said in this paragraph of the judgment seems inarguably correct. However, Ms Arehjan points out that payments for other injuries continued until 24 June 2019. That, though, does not demonstrate error in the joinder order. [18] Ms Arehjan also says that WC/2019/157 concerns a decision to terminate treatment (as opposed to termination of payments). The appeal to the Commission concerns decisions made by the Regulator under both of s 144A of the WCR Act (termination of weekly payments) and s 144B (termination of treatment). If the failure to specifically mention the termination of treatment is said to be an error, I disagree. The issues before the Vice President included whether the three appeals to the Commission fell within r 98(2)(a), (b) or (c) and then whether, as a matter of discretion, a joinder order ought to be made. All three appeals concern the termination of benefits under the WCR Act and it seems irrelevant to me that the benefits under two of the appeals were confined to weekly payments whereas under one appeal the relief that was terminated was both weekly payments and treatment. [19] The part of paragraph 10 of the Vice President’s judgment, which is the subject of comment by Ms Arehjan, is: “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 8 Reproduced faithfully, as it appears in the application to appeal. -- 5 of 9 -- 6 matters as this will ‘deprive the appellant of the right to withdraw, the one of the appeals from the dispute’;” [20] Of that passage in the judgment, Ms Arehjan says: “The following sentences missed ‘The documents which prepare truly and based on facts, shall not have inconsistency with other documents. In additional to the appellant health condition that prevent her to take such a huge pressure in on session’.”9 [21] Vice President O’Connor was aware of both issues. The submission that there will not be inconsistency across the appeals was dealt with at paragraph 22 of the judgment in these terms: “[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.” [22] Vice President O’Connor specifically mentioned Ms Arehjan’s submission that the joinder of the three appeals to the Commission may cause her stress. He said: “[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’.” [23] In my view, there is no error shown in paragraph [10] of Vice President O’Connor’s judgment. [24] Paragraph 19 of Vice President O’Connor’s judgment is in these terms: “[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.” [25] What his Honour says in that paragraph is clearly correct. However, Ms Arehjan points out that “there are two different injuries to the left wrist”. Vice President O’Connor was obviously aware of that fact. That is evident from paragraph 19 and also other paragraphs of the judgment.10 The fact that there are two different injuries to the left wrist does not contradict the finding that the proceedings are “broadly of a 9 Reproduced faithfully as it appears in the submission. 10 Paragraph [20](c) for example. -- 6 of 9 -- 7 similar nature”. They all related to injuries, either directly caused by the motor vehicle accident or arising from injuries caused by the accident. [26] Paragraph 20 of Vice President O’Connor’s judgment is in these terms: “[20] Each appeal deals with the termination of entitlements in accordance with s 144A 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 (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’).” [27] Ms Arehjan points out that WC/2019/157 concerns the termination of treatment under s 144B of the WCR Act while the other appeals only concern the termination of weekly payments under s 144A of the WCR Act. That is correct, but as already observed, WC/2019/157 also concerns a claim under s 144A of the WCR Act and it is therefore completely correct for Vice President O’Connor to state “each appeal deals with the termination of entitlements in accordance with s 144A of the WCR Act”. [28] Paragraph 23 of Vice President O’Connor’s judgment is: “[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 -- 7 of 9 -- 8 • Dr Andrew Ryan (WC/2020/36 and WC/2020/37).” [29] Ms Arehjan submits that some of these doctors are not relevant to all of the appeals. That may or may not be so in her view. The Regulator says otherwise. If not all doctors are relevant to all appeals, appropriate directions or rulings might have to be sought from the Commission as to the cross-admissibility of evidence. However, the Vice President has accepted, as he should, that the Regulator will seek to call all doctors on the appeals. [30] Paragraph 25 of Vice President O’Connor’s decision is in these terms: “[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.” [31] Ms Arehjan submits that it is appropriate for the Commission to deal with WC/2019/157 before the other appeals. She submits that a determination on that appeal “mainly deals with s 144B of the WCR Act” and that will reveal evidence relevant to WC/2020/36. Just why that is so is unclear. In any event, on the joint hearing of the appeals, arguments can be raised as to the use of evidence on one appeal in determination of another. [32] Paragraph 28 of Vice President O’Connor’s decision is in these terms: “[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.” [33] Ms Arehjan raises her poor health as a consideration. Paragraph 28 of the judgment was not concerned with all considerations relevant to the issue of joinder. Paragraph 28 was clearly limited to case management issues. Vice President O’Connor, as already observed, was aware of Ms Arehjan’s poor health.11 [34] None of the written submissions cast any doubt on the correctness of the joinder decision. [35] Turning then to the nine grounds of appeal: (a) Ground 1 concerns the applicant’s health.12 That was considered by the Vice President. 11 Judgment, paragraph 11. 12 See paragraph [22] of these reasons. -- 8 of 9 -- 9 (b) Ground 2 also concerns the applicant’s health. (c) Ground 3 concerns some new claim for psychological or psychiatric injury. That is a claim which, it seems, has not yet been made to WorkCover and is therefore irrelevant to the appeals presently before the Commission and to this appeal before the Court. (d) Ground 4 raises the fact that appeal WC/2019/157 concerns the termination, not only of weekly payments under s 144A of the WCR Act, but also the termination of treatment under s 144B. To the extent that this is relevant to the question of joinder, I have already dealt with it.13 (e) Ground 5 concerns Ms Arehjan’s claim that the evidence of some of the doctors is not relevant to all of the three appeals. I have dealt with this.14 (f) Ground 6 raises a similar point. (g) Ground 7 raises the issue that there are two wrist injuries and I have already dealt with this.15 (h) Ground 8 again raises the issue that WC/2019/157, unlike the other two appeals, concerns the termination of treatment under s 144B of the WCR Act. I have already dealt with that.16 (i) Ground 9 raises Ms Arehjan’s submission that WC/2019/157 ought to be heard before WC/2020/36 as evidence is likely to come out in WC/2019/157 which is relevant to WC/2020/36. I have already dealt with this.17 Conclusions [36] The Vice President’s judgment demonstrates a completely orthodox approach to the exercise of a statutory discretion. He directed himself to the rule which bestowed the discretion and referred to authorities which have considered how the discretion ought to be exercised.18 He identified what he saw to be the relevant considerations and applied those in the exercise of discretion. [37] None of the various submissions made by Ms Arehjan disclose appealable error in the exercise of the discretion for the reasons I have explained. [38] The appeal is dismissed. [39] Either party may list the matter for hearing as to the question of costs of the appeal if that is an issue. 13 See paragraphs [18] and [27] of these reasons. 14 See paragraphs [28] and [29] of these reasons. 15 See paragraph [25] of these reasons. 16 See paragraph [18] of these reasons. 17 See paragraph [31] of these reasons. 18 Including Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699. -- 9 of 9 --