INDUSTRIAL COURT OF QUEENSLAND

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1 INDUSTRIAL COURT OF QUEENSLAND CITATION: Blackwood v Toward [2015] ICQ 008 PARTIES: CASE NO/S: PROCEEDING: SIMON BLACKWOOD (WORKERS COMPENSATION REGULATOR) (appellant) v IAN ANDREW TOWARD (respondent) C/2014/42 Appeal DELIVERED ON: 24 March 2015 HEARING DATE: 3 November 2014 MEMBER: ORDER/S: CATCHWORDS: Martin J, President Appeal dismissed. WORKERS COMPENSATION PROCEEDINGS TO OBTAIN COMPENSATION DETERMINATION OF CLAIMS APPEALS, JUDICIAL REVIEW AND STATED CASES GENERALLY where the respondent is a jockey who was injured by a horse prior to a race in 2004 where the respondent was treated at various time for issues arising from hip pain where, in 2013, the respondent s doctor issued a Workers Compensation Medical Certificate in which he diagnosed severe arthritis in the left hip - where the respondent lodged an application for compensation with WorkCover in 2013 claiming an injury of osteoarthritis of the left hip whether the application had been lodged within the time prescribed whether assessed by a doctor under s 141(1) of the Workers Compensation and Rehabilitation refers to a worker being assessed to ascertain is he or she has sustained an injury within the meaning of the Act Workers Compensation and Rehabilitation Act 2003, s 131, s 141 CASES: Australian Broadcasting Corporation v O Neill (2006) 229 ALR 457 Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 Bishop of London v Ffytche (1801) 102 ER 188 Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 209 ALR 116 Flaherty v Girgis (1987) 162 CLR 574 Hamilton v Baker (1889) 14 App Cas 209 Parker v The President of the Industrial Court [2009] QCA

2 2 120 Re Alcan Australia Ltd; ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96 Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation (1952) 85 CLR 159 WorkCover Queensland v Downey [2001] QIC 76 APPEARANCES: M Hinson QC and S McLeod on behalf of the appellant instructed by Workers Compensation Regulator G Barr on behalf of the respondent instructed by Butler McDermott Lawyers [1] Ian Toward, the respondent, is a jockey. On 21 August 2004 he was engaged to ride in a race at the Innisfail Race Course. The horse he was riding flipped over in the barrier before the starter let the race go and, as a result, Mr Toward was injured. He was treated at the track and his left hip and the top of his left leg were iced. [2] He rode in other races that day and was back riding track work the next week despite soreness. He was able to work despite not being pain free. [3] On 1 February 2005 he was examined by Dr Simonds, a general practitioner, who referred him to Dr Pozzi, an orthopaedic surgeon. Mr Towards saw Dr Pozzi on 22 April and told him of the event which had occurred on 21 August. An X-ray revealed that he had early arthritis in the left hip and an unhealed fracture of the acetabulum joint. He was prescribed some pain relieving medication. [4] Mr Toward continued to experience pain which he treated with pain killers and antiinflammatories. By July 2013 he was finding it very difficult, if not impossible, to ride and he again consulted Dr Simonds. He was told that he needed a hip replacement and was referred to Dr Pozzi. [5] On 16 July 2013, Dr Simonds issued a Workers Compensation Medical Certificate in which he diagnosed severe arthritis in the left hip. He recorded that Mr Toward had told him: (a) (b) That the date of injury was 21 August 2004; and That the cause of injury was: Horse bucking and falling within a stall pinning Ian under. Numerous other injuries as jockey. [6] On 17 July 2013 Mr Toward lodged an application for compensation with WorkCover. The injury claimed was osteoarthritis of the left hip. That application was not accepted on the basis that there was insufficient medical advice to support the claim. On review, that decision was upheld. [7] When the appeal came on for hearing in the Commission, the respondent raised, for the first time, the issue of whether the application had been made in the time prescribed. The Commission found that it had. The legislation

3 3 [8] The relevant version of the Workers Compensation and Rehabilitation Act 2003 ( the Act ) is the version current as at 1 July The sections of the Act which are significant for this matter are set out below. 9 Meaning of compensation Compensation is compensation under this Act, that is, amounts for a worker s injury payable under chapters 3 and 4 by an insurer to a worker, a dependant of a deceased worker or anyone else, and includes compensation paid or payable under a former Act. 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. 108 Compensation entitlement (1) Compensation is payable under this Act for an injury sustained by a worker. 131 Time for applying (1) An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises. (2) If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer s liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged. (3) Subsection (2) does not apply if death is, or results from, the injury. (4) An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist. (5) An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant s failure to lodge the application was due to (a) mistake; or (b) the claimant s absence from the State; or (c) a reasonable cause. 141 Time from which compensation payable (1) The entitlement to compensation for an injury arises on the day the worker is assessed by (a) (b) (c) a doctor; or if the injury is a minor injury a nurse practitioner acting in accordance with the workers compensation certificate protocol; or if the injury is an oral injury and the worker attends a dentist the dentist. (2) However, any entitlement to weekly payment of compensation starts on

4 4 (a) (b) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury the day after the worker stops work because of the injury; or if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury the day the doctor, nurse practitioner or dentist assesses the injury. (3) Subsections (1) and (2) are not intended to limit any availability for compensation for the day of injury provided for under part 8. (4) Subsection (2) is subject to section 131(2). The decision under appeal [9] The Commissioner had to determine whether the application for compensation was valid, that is, whether it had been lodged within the six month period prescribed by s 131. That issue requires finding an answer to this question: When does the entitlement to compensation arise? [10] In answering that question the Commissioner applied the reasoning of Hall P in WorkCover Queensland v Downey. 1 That case dealt with the relevantly indistinguishable predecessors of s 131 and s 141 of the Act s 158 and s 168 of the WorkCover Queensland Act In Downey, Hall P said (of the predecessor of s 141) the following: Because subs. (2) operates as an exception to or a limitation upon the operation of subs. (1), it seems to me that the expression assessed by a doctor (or for that matter assessed by a dentist ) must be taken to mean assessed by a doctor as resulting in total or partial incapacity for work. I.E., where the commencement of the limitation period is said to be triggered by the activity of a doctor, it is necessary to show that a doctor has assessed the alleged injury as involving partial or total incapacity. The exception or limitation at s. 168(2) both protects the worker against a doctor retrospectively unleashing the limitation period by an assessment that the total or partial incapacity was present many months ago, and protects insurers against an assessment that total or partial incapacity has been present for a few months. The legislature must have intended that s. 168 will be used in the interpretation of s The legislature had both sections present to the mind at the same time. Section 168(4) expressly refers back to s. 158(2). (emphasis added) The proper construction of s 141 [11] The appellant submits that Downey was wrongly decided. The appellant argues that the reference in s 141(1) to a worker being assessed by a doctor should be read as meaning that the worker is assessed to determine if he or she has sustained an injury within the meaning of the Act. An injury is, as defined in s 32, a 1 [2001] QIC 76.

5 5 personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. [12] The appellant submitted that the court had erred in Downey when it read the predecessor of s 141(2) as constituting an exception to or limitation upon the operation of the predecessor of s 141(1). It was argued that those provisions are concerned with different subjects and that one does not limit or qualify the other. Section 141(2), says the appellant, is confined to the case where a worker stops work because of the injury, and is concerned to identify when, in such a case, an entitlement to weekly payment of compensation is to start. [13] The appellant identified the different types of compensation which may be paid under the Act. Chapter 3 provides for four different types of compensation to be paid: (a) A weekly payment to a totally incapacitated worker s 149 (b) A weekly payment to a partially incapacitated worker s 163 (c) A lump sum for a permanent impairment s 178 (d) Upon death s 194 [14] Chapter 4 of the Act provides for amounts which may be paid for medical treatment, hospitalisation and rehabilitation s 208(2). [15] The appellant also drew attention to the difference of expression within s 141. Section 141(1) uses the expression: assesses the worker. While s 141(2) uses the expression: assesses the injury. That, the applicant contends, is because the natural meaning of the expression assesses the worker is the assessment of the worker as having sustained an injury, rather than assessing the consequences of the injury. [16] The respondent argues that Downey was correctly decided and that s 141(2) does act as an exception to or limitation upon the operation of s 141(1). [17] The respondent also argues that since the decision in Downey, the legislation was re-enacted containing s 131 and s 141 in substantially identical terms to s 158 and s 168 of the previous Act. As well, the respondent says, s 131(2) was amended to replace the 28 day time limit with a 20 business day time limit. The respondent also refers to the insertion of s 36A in which the word diagnosed was used rather than the word assessed and the amendments made to s 141 with respect to minor injuries. The point of that submission is that the legislature had many opportunities to change the wording in s 131 and s 141 had the decision in Downey not been consistent with the intention of Parliament. [18] The value of the re-enactment presumption has been the subject of debate at the highest level. In Flaherty v Girgis 2 Mason ACJ, Wilson and Dawson JJ said: 2 (1987) 162 CLR 574.

6 6 the suggested rule nowadays is little use as a guide and it will not be permitted to prevail over an interpretation otherwise appearing to be correct. [19] It may be that a distinction should be drawn between statutes in which the later statute is merely a re-enactment of the earlier one and statutes where the later statute has a relevant history. In Electrolux Home Products Pty Ltd v Australian Workers Union 3 McHugh J referred to the similarity between a provision in the Industrial Relations Act 1988 which had been interpreted in Re Alcan Australia Ltd; ex parte Federation of Industrial Manufacturing and Engineering Employees 4 and the provision which was then being considered in the Workplace Relations Act He said: [81] The principle that the re-enactment of a rule after judicial consideration is to be regarded as an endorsement of its judicial interpretation has been criticised, and the principle may not apply to provisions re-enacted in replacement legislation However, industrial relations is a specialised and politically sensitive field with a designated Minister and Department of State. It is no fiction to attribute to the Minister and his or her Department and, through them, the Parliament, knowledge of court decisions - or at all events decisions of this Court - dealing with that portfolio. 5 [20] It would be reasonable to observe that workers compensation is, likewise, a specialised and politically sensitive field. [21] I need not engage further with this discussion because a canon of interpretation such as that considered above will give way where a court forms the view that the earlier construction was incorrect and I have come to that conclusion. As was said by Dixon, Williams and Webb JJ in Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation 6 : this principle affords at most a valuable presumption as to the meaning of the language employed. It should not lead the Court to perpetuate the construction of a statutory provision which it considers to be erroneous. 7 [22] Although it was not raised, I should deal briefly with stare decisis the principle whereby a court considers itself bound by its previous decisions. It is a principle of long standing 8. But it should not be used as an excuse for the perpetuation of error. In Babaniaris v Lutony Fashions Pty Ltd 9 Mason J closely examined the authorities on this topic. He said 10 : (2004) 209 ALR 116. (1994) 181 CLR 96. A similar conclusion was reached by Gleeson CJ ([7]-[8]), Gummow, Hayne and Heydon JJ ([161) and Callinan J ([251]) (1952) 85 CLR 159. Ibid at 174. Bishop of London v Ffytche (1801) 102 ER 188 at 191 The rule stare decisis is one of the most sacred in the law. Sacred though it may be, in that case the House of Lords overturned 200 years of settled law. (1987) 163 CLR 1. Ibid at

7 7 There is certainly strong authority for the view that a decision of long-standing, on the basis of which many persons will have arranged their affairs, should not be lightly disturbed by a superior court: Brownsea Haven Properties Ltd. v. Poole Corporation; West Ham Union v. Edmonton Union; Campbell College, Belfast (Governors) v. Northern Ireland Valuation Commissioner; and see generally Reg. v. National Insurance Commissioner; Ex parte Hudson. Adherence to this approach promotes the certainty of the law and protects the integrity of acts and transactions which have taken place in the faith of the law as it has been previously declared. There are, however, countervailing considerations which have special force in cases of statutory construction. The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute. If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute: Blair v. Curran; Platz v. Osborne; Concrete Constructions Pty. Ltd. v. Barnes; Lancashire & Yorkshire Railway Co. v. Mayor, &c., of Borough of Bury. It is no part of a court's function to perpetuate error and to insist on an interpretation which, it is convinced, does not give effect to the legislative intention: Bourne v. Keane. And, as Lord Sumner observed in Pate v. Pate, nor is it in any case sound to misconstrue a statute for fear that in particular instances some hardship may result. The injustice or inconvenience which will result from displacement of a long-standing decision is certainly a very important factor to be considered, but there is no support in principle or authority for the proposition that the court should persist with a manifestly incorrect interpretation on the ground that it will cause injustice or inconvenience. There is, after all, an obvious injustice in departing from the legislative intention and in most cases a proposed departure from antecedent authority involves competing detriments. The fact that Parliament can, if it so chooses, displace an erroneous interpretation does not provide a justification for the court's refusal to give effect to the law as declared by Parliament. There are factors that may militate against Parliament taking steps to enact appropriate remedial legislation. Although the use of expressions as "plainly" and "manifestly" erroneous has been criticized in contexts where the question is one on which different minds might reach different conclusions (Queensland v. The Commonwealth), this criticism does not diminish the utility of the expressions in their application to a case in which the question on analysis is capable of but one answer. The matter may stand differently when the correct interpretation of the statute is highly disputable or finely balanced, involving a difficult choice between strongly competing contentions. This is very often the case when a court is called upon to reconsider one of its earlier decisions. Then it is a matter of ensuring that a change in the law does not proceed from mere personal choice and result in injustice or

8 8 inconvenience, as, e.g., by impairing actions and transactions undertaken on the faith of the law as it had been declared previously. In such a situation lack of clarity in the expression of the legislative intention makes it legitimate for the court to regard the injustice or inconvenience which would flow from overruling the earlier decision as having an influential effect on the outcome. (emphasis added, citations omitted) [23] It is also wrong, as Heydon J observed in Australian Broadcasting Corporation v O Neill 11 to give the effect of legislation to a decision contrary to the intention of the legislature, merely because it has happened, for some reason or other, to remain unchallenged for a certain length of time 12. [24] I have, for the reasons outlined above, arrived at a different conclusion as to the proper construction of s 141 than that which commended itself to Hall P in Downey. I respectfully disagree with his view and I hold that it should not be followed. [25] So far as the doctrine of precedent is concerned, the Industrial Court is a superior court of record 13 with a limited jurisdiction. Apart from two matters 14 there is no appeal from a decision of the court. There is, though, the capacity for judicial review 15 and, from the decision of a judge of the Supreme Court on such a review, an appeal to the Court of Appeal. This Court would be bound to follow the Court of Appeal on any matter taken directly to that court and would, of course, be bound by any orders made under a judicial review. There is no precedent, in that sense, which would bind me. [26] The Commissioner was, though, bound to follow what this Court said in Downey because the doctrine of precedent applies to members of the Commission with respect to decisions of this Court. In that sense, the Commissioner did not err, but, for the reasons I have given the construction of s 141 which was previously favoured should not be followed. [27] Section 141 is concerned with the time from which compensation is payable for an injury as defined. The compensation may be in one or more of the types available under Chapter 3 or 4 of the Act. To confine the words assessed by... a doctor to an assessment relating only to total or partial incapacity for work as envisaged in s 141(2) is to ignore the other, possible, compensable sequelae of an injury. [28] In s 141(2) the assessment concerns the severity of the injury and not whether a worker has suffered an injury. Elsewhere in the Act, when the word assess or assessment is used about an injury it concerns the extent or effect of the injury. [29] Section 141(1) concerns the worker and whether, in the opinion of a doctor or other nominated medical professional, the worker has suffered a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury as described in s 9. That is what is meant by the (2006) 229 ALR 457. Hamilton v Baker (1889) 14 App Cas 209 at 222. S 242 Industrial Relations Act Decisions under s 248(1)(c) and 251 of the IR Act may be appealed to the Court of Appeal. See, for example, Parker v The President of the Industrial Court [2009] QCA 120.

9 9 worker is assessed by a doctor. To confine it as the respondent suggests is to equate assessing a worker with assessing an injury. [30] The respondent also argued that to construe s 141(1) as I have would create an anomaly because, in his situation, no medical treatment or rehabilitation was required. Thus, says the respondent, it would be anomalous to require the lodgement of an application for compensation at that time when no compensation would have been payable 16. But that is incorrect. The respondent was entitled to compensation for the treatment he received and for the medication he took. The issue here is entitlement not its quantum. Was Mr Toward assessed as having an injury? And, if so, when? [31] Mr Toward possesses a quality which very many considerto be completely admirable stoicism in the face of pain. It is that stoicism which has led him to this situation. [32] After the accident in August 2004 he was in considerable pain, but it was not until he experienced an intense shooting pain after he had mounted a horse that he finally consulted Dr Simonds in February During that consultation he recalls telling Dr Simonds: Well, I just told him that I got the shooting pain. I told him about the accident that I that happened and had been sore, but I said that morning that I got a leg up, I said it got really sore 17 [33] He saw Dr Pozzi in April 2005 and he told him about the incident at Innisfail. Dr Pozzi told him that he had an unhealed fracture of the acetabulum joint. He basically said that osteo had set into it and basically you go home and take painkillers and that. He said he ll see me down the track when it worsened. 18 [34] In cross-examination Mr Toward accepted that he knew that the osteoarthritis was a result of the incident in August [35] Mr Toward gave evidence of the increase in the level of pain he was experiencing over the years after he saw Dr Pozzi and of his further consultations with him and the increasingly strong painkillers he was prescribed. [36] At the end of his cross-examination he was asked: COMMISSIONER THOMPSON: Mr Toward, you have had over a period of time a number of injuries in relation to your work? --- That s correct. And you at different times have accessed WorkCover? --- That s correct. And on what I know you ve given some evidence on it, but just if you could refresh for me on what occasions did you make an application for WorkCover? I m not looking at days, but ---? When I was solely off work. Like, if I fractured a leg, I couldn t work, I d apply for WorkCover, Respondent s written submissions at [23] T2-21. T2-22,23. T2-31.

10 10 but I I ve never I didn t know you could apply for WorkCover, if you were still working. 20 [37] The evidence about Mr Toward s consultations and what he knew about WorkCover is relevant to any consideration which might be necessary if an insurer were to consider the discretion available to it under s 131(5). [38] It is not surprising that neither doctor, after such a long time, had a particularly detailed recollection of the consultations each had with Mr Toward. It is relevant to note that Mr Toward had not told Dr Simonds of the horse flipping over before he was referred to Dr Pozzi. 21 [39] There was an exchange between Mr McLeod and Dr Simonds at the end of his examination in chief when this leading question was asked: So, Doctor, just to conclude, I ve taken you through the relevant consultation notes that relate to your consultations that you ve had with Mr Toward in relation to the left hip. Would it be fair to say, when one goes through each of those consultation notes, that the basis upon which you treated Mr Toward for was osteoarthritis complaint in the left hip region arising from a horse accident injury that occurred on the 21 st of August 2004? --- That s correct. 22 [40] The conclusion which may be drawn from those two pieces of evidence is that the answer That s correct is based upon hindsight and not an acknowledgement that Dr Simonds was aware of the injury of 21 August 2004 from the time of the consultation in February [41] Dr Pozzi s letter to Dr Simonds of 22 April makes no specific connection between the horse flipping over and the condition of Mr Toward at the time he was first seen. Dr Pozzi notes: This thirty-eight year old jockey has a history of increasing problems with his left hip over the last six months. He does recall some significant injuries over the years whilst in the stalls and did describe at one stage being upside down with a horse on top of him. Plain x-ray shows him to have early arthritis in the left hip with some misshaping of the head. There is, what looks like, an unhealed fracture of the posterior lip of the acetabulum which may represent an old injury. It may be that he has had an old trauma, though he does tell me if (sic) was investigated for perhaps a generalised arthropathy several years back and this may be part of that pattern. [42] Dr Pozzi s remarks are couched in terms of possibilities and a general history of Mr Toward s injuries. He refers to evidence in the x-ray which may represent an old injury but goes on to say that it may be part of a pattern T2-34. T1-43. T1-39. Ex 5.

11 11 [43] I now turn to the meaning of the word assess in s 141(1). The word is more commonly associated with matters concerning, among other things, the determination of the value of property or the fixing of an amount of taxation which is owed. The Macquarie Dictionary (5 th Edition) gives another meaning: to measure or evaluate and that is the meaning which should be given to assess in the context of the Act. [44] In order for a doctor to assess an injury as an injury within the meaning of the Act there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment. It has not been established that the doctors directed themselves to that issue until the time of the making of the claim. Each of them was concerned with the treatment of Mr Toward. They knew that he had suffered injuries at various times but they did not direct their minds to the question of which physical injury, if any, arose out of employment. [45] In this case, the Regulator has not demonstrated that such a conclusion or opinion was either formed or communicated outside the six months preceding the lodgement of the claim. Conclusion [46] Although I have held that Downey should not be followed, nevertheless the conclusion reached by the Commissioner was correct. The appeal is dismissed. [47] The appeal was not instituted vexatiously or without reasonable cause. I make no order as to costs.