Appo v Q-Comp (No. 2) [2004] ICQ 22 (2004) 175 QGIG 1222

1222 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 April, 2004 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Workers’ Compensation and Rehabilitation Act 2003 – s. 561 – appeal against decision of industrial magistrate Kelvin Noel Appo AND Q-Comp (No. 2) (No. C49 of 2003) PRESIDENT HALL 2 April 2004 DECISION The decision of 13 November 2003 left open the question whether the matter should be remitted to the Industrial Magistrate whose decision had been set aside, or reheard by this Court on the record of proceedings in the Industrial Magistrate’s Court. By consent of the parties the latter course was adopted. By consent of the parties additional evidence was taken from the general practitioners who, on the documents, had treated the appellant. It emerged from the evidence of Dr Harding-Smith that he had in fact treated the appellant’s wife and that the documents were, to that extent, erroneous. Dr Senanayake had treated the appellant. Only the medical examination of 22 August 2001 is relevant. By his affidavit Dr Senanayake deposes: “33. It is my usual practice to wait for a patient to ask for a work incapacity certificate (‘a certificate’) before issuing one. 34. I do not recall Kelvin asking for a work incapacity certificate earlier than July 2002. Even if the patient asks for a certificate, I do not issue one unless I am satisfied that they are actually incapacitated for work. 35. Although I do not recall the exact dates, I remember that Kelvin told me over several consultations early in his treatment that he could still work, despite his injury. I also recall Kelvin telling me early in his treatment that the analgesics controlled the pain in his shoulder so that he could work. 36. I recall Kelvin mentioning that he needed to work because no one else at work could do his duties. However, I do not recall when Kelvin said this to me. 37. I did not form the opinion that Kelvin’s injuries were sufficiently bad so as to cause a work incapacity until July 2002.” It is the submission of the employer that Dr Senanayake was aware on 22 August 2001 that the appellant could work only with the aid of analgesics. With respect, at paragraph 7, Dr Senanayake deposed “As Kelvin still had full movement of his arm, I did not think he was incapacitated for work” (emphasis added). No reason has been shown for not acting upon that evidence. Whilst one may have reservations about the evidence at paragraph 37, the dates of the appellant’s attendance upon Dr Senanayake make impossible any conclusion that total or partial incapacity for work was assessed more than six months before the claim for compensation was made. I order: (a) That the decision of the Industrial Magistrate made at Bundaberg on 15 May 2003 to uphold the decision of Q-Comp made on 22 November 2002 to confirm the decision of WorkCover Queensland made on 3 October 2002 to refuse the Appellant’s Application for Compensation, be set aside. (b) That the Application for Compensation lodged by the Appellant with WorkCover Queensland on or about 31 July 2002 be accepted. I reserve all questions of costs. Dated 2 April 2004. D.R. HALL President. Released: 2 April 2004 Appearances: Mr A. McLean-Williams, instructed by Payne Butler Lang Solicitors, for the appellant. Mr J. Hutton, directly instructed for Q-Comp. Mr J. McPherson of McCullough Robertson, Lawyers, for the employer. -- 1 of 1 --