Clarke & Q-COMP [2009] ICQ 17 (2009) 192 QGIG 45

[Extract from Queensland Government Industrial Gazette, dated 25 September, 2009, Vol. 192, No. 4, pages 45-46] INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial commission Troy John Clarke AND Q-COMP (C/2008/4)(No. 3) PRESIDENT HALL 11 September 2009 REPORT ON DECISION (as edited) In giving a Decision from the Bench on 2 September 2009, the President said: "The Appellant, Troy John Clarke, has instituted an Appeal against a decision of the Queensland Industrial Relations Commission given on 24 December 2007, dismissing his appeal against a decision of Q-COMP, which rejected his claim for compensation. It is the effect of s. 561 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), that such appeals are to be heard and determined upon the record unless the Court orders additional evidence be heard. On 29 April 2008, an application was made by Mr Clarke to lead 'additional evidence'. That application was rejected. Mr Clarke now makes a further application to lead additional evidence. To the extent that the additional evidence is the same evidence that was rejected by this Court on 13 June 2008, I reject the new application and confirm that decision. I turn then to the additional evidence which has been discussed for the first time today. The first body of evidence relates to an allegation that the insurer, WorkCover Queensland, was negligent in the way in which it dealt with Mr Clarke's application for compensation. Such evidence is simply inadmissible. The scheme of the Act is that, as is not infrequently the case, if a claimant for compensation is dissatisfied with the decision of the insurer, he is entitled to an administrative remedy before Q-COMP. If he is still dissatisfied, the system requires that there be a trial either in the Industrial Magistrates Court or in the Queensland Industrial Relations Commission. The issue at a trial is whether or not the claimant did suffer an injury arising out of or in the course of his employment, and the issue whether or not the employment was a significant contributing factor to the injury. The trial is not by way of judicial review of the processes of the insurer or of Q-COMP. It follows that that evidence about the procedure followed may not be led in this Court. The second body of evidence to which Mr Clarke turns is the 'evidence' of witnesses who were called at first instance. I doubt that the power to allow additional evidence extends to the process that Mr Clarke has in mind. Mr Clarke has in mind that he should cross-examine those witnesses. In the nature of things, he knows the questions but he does not know the answers so he cannot say what the evidence would be. In any event, if there was an error in that the right questions were not asked at first instance, it was the error of those acting for Mr Clarke. Appeals pursuant to s. 561 of the Act are about correcting errors by an Industrial Magistrate or Industrial Commissioner. Section 561 is not about the correction of forensic errors made by an appellant or those who act for them. For the same reason, I reject the application to call some additional evidence - for example from Dr Greenhill who was the treating doctor, which might well have been called at first instance. I notice Mr Clarke's claim that depression has been a contributing factor to the aggravation of his condition. This may well be correct. Mr Clarke has now made such a claim to WorkCover. It seems to me that the claim should be dealt with in the ordinary way. Additional evidence about the nature of the work performed by Mr Clarke seems to me not to be evidence which should be allowed pursuant to the power to allow additional evidence. Ordinarily, additional evidence should be allowed only where it is almost certain or reasonably clear that if the evidence had been heard at first instance the result would be different. That must be so because, if it was to be a matter of weighing competing bodies of evidence, since this Court has no power to remit the matter to the Commission, an impossible situation would arise in which the Court will be weighing evidence where the Court heard some of it and the Commission had heard the remainder of the evidence. On the test whether it is almost certain or reasonably certain that the additional evidence about the nature of the work performed by Mr Clarke would lead to a different result, there can only be one answer and that answer is 'no'. -- 1 of 2 -- 2 The reason for that is that the Commissioner rejected the evidence of Dr Murrell on the ground that Dr Murrell had taken up Mr Clarke's cause. On that basis the medical evidence was that which came from Dr Sinha and Dr Reid. Dr Sinha's evidence varied at times but in the end result, it seems to have been that some toxins only would operate as a trigger upon a person with a relevant genetic disposition. It was the evidence of Dr Reid that performance of work in the industry in which Mr Clarke had been working would not of itself operate as a trigger. In those circumstances, simply to call additional evidence about the inhospitable nature of that work without evidence about the toxins to which Mr Clarke had been exposed would not lead to any different result. I notice that Mr Clarke has sought some advice from the University of New South Wales about the toxins which are contained in the residue from sandblasting. Nobody knows what the University of New South Wales will say about the matter. The Court cannot allow additional evidence when I do not know what the evidence is. In all those circumstances, I dismiss all aspects of the application to lead additional evidence.". Dated 11 September 2009. By the Court, [L.S.] G.D. SAVILL, Industrial Registrar. Released: 11 September 2009 Appearances: The Appellant in person. Mr P. Rashleigh, directly instructed for the Respondent. Government Printer, Queensland The State of Queensland 2009. -- 2 of 2 --