Carpenter Investments (Qld) Pty Ltd t/a Lockyer Car & Dog Wash v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 162

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Carpenter Investments (Qld) Pty Ltd t/a Lockyer Car & Dog Wash v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 162 PARTIES: Carpenter Investments (Qld) Pty Ltd t/a Lockyer Car & Dog Wash (Applicant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2014/290 PROCEEDING: Application for an Order that the Worker submit to a medical examination DELIVERED ON: 15 October 2014 HEARING DATE: 13 October 2014 MEMBER: Industrial Commissioner Fisher ORDER: Worker to submit to medical examination CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Application by employer for order that worker submit to medical examination - Regulator not strongly opposed to application - Paucity of medical evidence - Whether injury arose out of or in the course of employment - Whether employment a significant contributing factor - Ordered worker submit to medical examination to be rescheduled at a more convenient time. CASES: Workers' Compensation and Rehabilitation Act 2003, s 556 APPEARANCES: Mr A.J. Taylor, Counsel instructed by Emmerson Legal & Accounting Pty Ltd, for the Applicant. Ms D. Callaghan, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. -- 1 of 4 -- 2 Decision [1] Carpenter Investments (Qld) Pty Ltd t/a Lockyer Car & Dog Wash (the Applicant) has applied, pursuant to s 556 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), for an order that David Paterson submit to a medical examination. [2] The Respondent, Simon Blackwood (Workers' Compensation Regulator) (the Regulator) informed the Queensland Industrial Relations Commission (the Commission) that the application was not strongly opposed. [3] Mr Paterson has an accepted claim for workers' compensation. He has not elected to become a party to the appeal. [4] Section 556 of the Act empowers the Commission to make an order that a worker submit to a medical examination before the start of a hearing. For the section to apply, one of two gateway provisions must be met, viz., that the condition of the worker who has sustained an injury is relevant to the appeal or the cause, nature or extent of the injury is relevant to the appeal. [5] The Applicant submits that the right knee injury alleged to have been sustained could not have been caused in the manner described by Mr Paterson and/or the description of the event alleged by Mr Paterson to have caused the knee injury was not a significant contributing factor. A key aspect of the Applicant's case on appeal is CCTV footage of Mr Paterson on the day the injury is said to have occurred. The Applicant contends that the footage is contrary to the incident described by Mr Paterson as causing his knee injury. [6] Mr Paterson is being treated by Dr Morgan, Orthopaedic Surgeon. Dr Morgan has not produced a medical report with respect to Mr Paterson but has provided some brief answers to questions posed by the insurer, WorkCover Queensland. He has also provided two medical certificates. None of the information provided by Dr Morgan addresses the CCTV footage or the cause of the injury. The Applicant contends that as a result there is no medical evidence which addresses the case it wishes to conduct on appeal. [7] The Applicant submits that in the circumstances it is entitled to gather its own evidence and not be limited to the cross-examination of witnesses called by the Regulator. [8] Although not strongly opposed to the application, and noting that it does not act for Mr Paterson, the Regulator nonetheless addressed a number of matters that it considers relevant to the application. [9] Of concern to the Regulator is Mr Paterson's unwillingness to participate in the examination as he is confused about its purpose. [10] The other factors raised by the Regulator concern the practical effects of the application. An examination has been scheduled for Monday 20 October 2014 at 4.30 pm in Brisbane. Mr Paterson is to undergo an arthroscopy on 17 October 2014 and at the time of the hearing his prognosis was uncertain. In particular, it was unknown whether Mr Paterson would be fit to attend the examination or the appeal -- 2 of 4 -- 3 hearing, scheduled for 4-6 November 2014. The Regulator submits the arthroscopy would afford the best opportunity for Dr Morgan to make a diagnosis. Further, the value of an examination three days after the arthroscopy was questionable. [11] The Regulator also contends that an independent examination of Mr Paterson in person is unnecessary when an opinion could be formed on the papers and viewing the CCTV footage as to the association between the alleged injury, the stated cause or an alternative cause. [12] This is a case where there is a paucity of medical evidence about whether the claimed injury arose out of or in the course of employment and whether employment was a significant contributing factor. The Commission accepts that Dr Morgan will be called by the Regulator to give evidence and the Applicant is entitled to confer with him prior to the trial as well as to cross-examine him. However, highly relevant to the Applicant's case is the CCTV footage as it apparently casts doubt over Mr Paterson's version of the manner in which the injury is said to have occurred. [13] In the circumstances I am satisfied that the Applicant has established that at least one of the two gateway provisions of s 556 (1)(b) of the Act applies, i.e., that the cause of the injury is relevant to the appeal. Accordingly, I have determined that the Applicant should be permitted to have an expert of its choosing consider the CCTV footage and to examine Mr Paterson so as to provide an opinion on the matters relevant to the appeal. As the Applicant acknowledged during the hearing, the Applicant will be bound by the opinion that it receives. [14] The Regulator undertook to seek advice from Dr Morgan about Mr Paterson's capacity to attend a medical examination on 20 October 2014 and the trial dates in light of the arthroscopy to be performed the preceding Friday. The Regulator has now informed the Commission that Dr Morgan's Practice Manager said that Dr Morgan may not be able to provide the advice sought until the outcome of the surgery was known. In the circumstances I do not consider it appropriate for Mr Paterson to be examined on Monday 20 October 2014. Further, Mr Paterson lives outside of Brisbane and understandably, is apprehensive about travelling to and from Brisbane in peak hour when he is unfamiliar with the location of his destination. [15] Therefore, while I am prepared to make the order that Mr Paterson submit to a medical examination, I require the Applicant to reschedule the appointment to a more convenient time to allow Mr Paterson to travel without the concerns identified above. Alternatively, if an appointment cannot be made for a time that fits within these parameters then the Applicant will be responsible for arranging the conveyance of Mr Paterson. These requirements are to be read in conjunction with paragraphs 1 and 3 of the Order below. [16] I have notified the Vice President of this decision and discussed with her its effect on the trial dates. Approval has been given for the dates to be vacated in order to allow the examination to occur. Once the Applicant has obtained the appointment date, it is to notify the Industrial Registry so that the appeal can be listed for Call Over. The Applicant has also asked that the appeal be listed for a conference under -- 3 of 4 -- 4 s 552A of the Act. A request for such a conference can be raised with the Vice President at the Call Over. [17] The Commission has not been asked to address costs in relation to the adjournment of the appeal. [18] The Commission makes the following Order: 1. Pursuant to s. 556 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) David Paterson submit to a medical examination with Dr Simon Journeaux, at a time to be determined at the following address: Mater Private Clinic, 550 Stanley Street, South Brisbane. Qld. 4101 2. The Applicant is to make the appointment and provide reasonable notice to Mr Paterson of the date and time of the appointment; 3. The costs of Mr Paterson's medical examination with Dr Journeaux, including his reasonable travel costs to and from the medical examination, be paid by the Applicant; 4. If, without reasonable excuse, Mr Paterson does not attend the medical examination with Dr Journeaux at the said time and place, he be required to reimburse the Applicant for costs reasonably incurred by it in relation to the medical examination; 5. That the report of Dr Journeaux be provided to the Regulator within seven days of its receipt; 6. Further, that the report of Dr Morgan in relation to the arthroscopy performed on 17 October 2014 be provided by the Regulator to the Applicant within seven days of its receipt; and 7. The parties' costs of this application be reserved to the Member hearing the Appeal. [19] The Regulator is requested to bring this decision and Order to the attention of Mr Paterson. -- 4 of 4 --