Habibi Arehjan v Workers' Compensation Regulator [2025] ICQ 23

Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171; [1985] HCA 2, cited

Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533; [1989] HCA 40, cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, cited

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, cited

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66, followed

Flannery & Anor v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377; [2000] 1 All ER 373, cited

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230, related

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, cited

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, cited

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

R v Thrupp [2024] QCA 134, cited

Scott v Sun Alliance Ltd (1993) 178 CLR 1; [1993] HCA 46, cited

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed

Steggles Pty Ltd v Vandenberg (1987) 163 CLR 321; [1987] HCA 35, cited

Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585; [1950] HCA 46, cited

Turay v Workers' Compensation Regulator [2023] ICQ 13, followed

Workers' Compensation Regulator v Glass (2020) 4 QR 693; [2020] QCA 133, cited

Workers' Compensation Regulator directly briefing Mr McMillan

• [1] This is an appeal from a judgment of Vice President O'Connor dismissing three appeals from decisions of the Workers' Compensation Regulator.

• [2] The appellant, Ms Nadia Habibi Arehjan, is an electrical engineer. In 2017, she was employed as such by Incitec Pivot Limited.
• [3] On 10 February 2017, Ms Habibi Arehjan was involved in a motor vehicle accident which occurred in the course of her employment. There is no doubt that Ms Habibi Arehjan suffered quite severe injuries. There is no doubt that she suffered those injuries in the course of her employment. There is no doubt that compensation was payable to Ms Habibi Arehjan in relation to those injuries.
• [4] Ms Habibi Arehjan made application for compensation pursuant to the provisions of the Workers' Compensation and Rehabilitation Act 2003 (WCR Act). WorkCover, the statutory insurer, accepted liability to pay compensation with respect to eight injuries:

(a) fracture left femur and subsequent knee problems;

(b) adjustment disorder with mixed anxiety and depressed moods - moderate severity;

(c) left shoulder strain with referred neck pain;

(d) fractured nose;

(e) capsuloligamentous injury and soft tissue injury left wrist;

(f) musculoligamentous injury to the cervical spine;

(g) fracture of the distal sacrum/coccydynia; and

(h) lumbosacral junction pain.

• [5] WorkCover terminated weekly entitlements of Ms Habibi Arehjan from 2 May 2019 as those payments related to musculoligamentous injury to Ms Habibi Arehjan's cervical spine (the first termination decision).
• [6] WorkCover terminated weekly entitlements of Ms Habibi Arehjan for the period between13 June 2018 to 23 July 2018 with respect to all injuries except her left wrist EDC tendonitis (the second termination decision).
• [7] WorkCover terminated weekly payments as of and from 16 August 2019 in relation to Ms Habibi Arehjan's left wrist EDC tendonitis (the third termination decision).
• [8] Ms Habibi Arehjan sought review by the Workers' Compensation Regulator of each of the termination decisions. The Regulator confirmed each of the three termination decisions.
• [9] From the Regulator's decisions, Ms Habibi Arehjan appealed to the Queensland Industrial Relations Commission. The Commission, constituted by Vice President O'Connor, heard the three appeals together:

(a) Appeal WC/2019/157 was Ms Habibi Arehjan's appeal from the Regulator's confirmation of the first termination decision;

(b) Appeal WC/2020/36 was Ms Habibi Arehjan's appeal from the Regulator's confirmation of the second termination decision; and

(c) Appeal WC/2023/37 was Mr Habibi Arehjan's appeal from the Regulator's confirmation of the third termination decision.

• [10] In support of her case before the Commission, Ms Habibi Arehjan gave evidence on her own behalf and called three medical witnesses. One of those witnesses, Dr James Price, is an orthopaedic surgeon and the other two, Corena Caltabiano and Deborah Dale are physiotherapists. The Regulator called six medical witnesses, five of whom are orthopaedic surgeons; Dr Andrew Ryan, Dr Phil Allen, Dr Dale Rimmington, Dr Greg Sterling and Dr Simon Journeaux. The Regulator also called Dr Michael Bryant, a neurosurgeon.
• [11] After a hearing which was conducted over four days from 8 to 11 November 2021, the Vice President dismissed the three appeals.[1] It is from that decision which Ms Habibi Arehjan now appeals.

• [12] Chapter 3, Part 9 of the WCR Act provides for weekly payment of compensation. Chapter 4 Part 2 provides for payment of medical expenses.
• [13] Here, as already observed, Ms Habibi Arehjan was clearly entitled to compensation and payment of medical expenses. The contentious question was as to when those payments should cease.
• [14] Section 144A of the WCR Act prescribes the circumstances in which weekly payments of compensation stop:

"(1) The entitlement of a worker to weekly payments of

compensation under part 9 stops when the first of the

(a) the incapacity because of the work related injury stops;

(b) the worker has received weekly payments for the

(c) compensation under this part reaches the maximum

(2) If subsection (1)(b) or (c) applies, the worker's entitlement to further compensation for the injury stops.

(3) Subsection (2) does not apply to the worker's entitlement to compensation under chapter 4A.

(4) This section does not limit another provision of this Act that stops weekly payments."

• [15] Section 144B prescribes the circumstances in which payments of medical expenses stop:

"(1) The entitlement of a worker to the payment of medical

treatment, hospitalisation and expenses under chapter 4 for an injury stops when -

(a) the entitlement of the worker to weekly payments of

(b) medical treatment by a registered person is no longer

required for the management of the injury because the

injury is not likely to improve with further medical

(2) Subsection (1) does not apply in relation to section 220 or

• [16] The decisions now under appeal were initially made by the statutory insurer, WorkCover. They are reviewable decisions for the purposes of Chapter 13 of the WCR Act.[2] Decisions of the Regulator to review the decision of WorkCover and confirm WorkCover's decisions may themselves be appealed to the Commission by Part 3, Division 1 of Chapter 13. That is what occurred here, and those are the appeals dealt with and dismissed by the Vice President. The Commission's decisions are appealable to this Court by Part 3, Division 1A of Chapter 13. That is the path by which the current appeals arrived here.
• [17] Appeals to this Court are by way of rehearing and are not limited to questions of law, error or want of jurisdiction.[3] Those limitations only apply to appeals mounted under the Industrial Relations Act 2016[4] against decisions made under that or some other legislation.
• [18] As to an appellate court's function on an appeal by way of rehearing, the High Court, in Fox v Percy,[5] observed:

"[25] Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:

"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."

As this Court there said, that approach was "not only sound in law, but beneficial in ... operation""[6]

• [19] In Lee v Lee,[7] Bell J, Gageler J (as his Honour then was), Nettle and Edelman JJ described the principles in this way:

"A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge". Here, the trial judge's findings of primary fact were not disturbed. However, in material respects, the Court of Appeal found that the inferences that his Honour drew from those findings were wrong. Notably, the trial judge's finding that the driver was not wearing the seatbelt not only was contrary to each party's case but, if correct, on the Court of Appeal's analysis, would lead to the conclusion that there was no real prospect that the appellant was the driver. And the trial judge's acceptance of the RACQ's case, that the appellant had been pulled from the driver's seat to the passenger seat immediately behind in something less than 90 seconds, was, in the Court of Appeal's analysis, unlikely."[8]

• [20] The appeal to this Court is a civil appeal which is determined upon consideration of the complaints raised as grounds of appeal. There is no cause, as in criminal appeals, to review the entire case.[9] Ms Habibi Arehjan's case on appeal is limited to the grounds that she has identified.

• [21] Ms Habibi Arehjan's application to appeal sought the following orders:

"Appeals WC/2019/157; WC/2020/36; and WC/2020/37 are dismissed."

• [22] As already observed, appeals WC/2019/157, WC/2020/36 and WC/2020/37 were all appeals brought by Ms Habibi Arehjan to the Commission against the decisions of the Regulator. Those appeals were in fact all dismissed by the Vice President. The application to appeal is insensible in that it seeks orders that have already been made by the Commission.
• [23] Ms Habibi Arehjan's application to appeal was sensibly taken by the Regulator to be a challenge to the decisions of the Vice President and both the Regulator and WorkCover. If Ms Habibi Arehjan was successful in her appeal to this Court, the appropriate orders would be to set aside the orders made in the Commission and allow the appeals.
• [24] Ms Habibi Arehjan's grounds of appeal were described as:

"an error of law (this means that the Member may have misapplied the law or a legal principal to the facts);

an excess, or want, of jurisdiction (this means that the member may have made a decision that is not within their power to make)."[10]

• [25] The grounds of appeal give no particulars as to Ms Habibi Arehjan's real complaints. No point is taken by the Regulator as to the way the grounds of appeal are expressed. Ms Habibi Arehjan has filed written submissions from which the various bases upon which the Commissioner's judgment is challenged can be discerned. In his written submissions, Mr McMillan, counsel for the Regulator, categorised Ms Habibi Arehjan's complaints into 14 grounds. Ms Habibi Arehjan adopted the categorisation when preparing her written submissions in reply to Mr McMillan's submissions.
• [26] The 14 grounds are:

(a) the Commission erred by referring at paragraph [41] of the reasons to "an MRI performed in Tehran on 5 December 2018" (Ground 1);

(b) the Commission erred in dealing with Dr Bryant's evidence because the Commission "went beyond" his oral evidence and "ignored" a letter (which was exhibit 97) written by Dr Bryant (Ground 2);

(c) the Commission erred by referring to reports of Dr Panjak Relan and Dr Peter McCombe, which were not in evidence (Ground 3);

(d) the Commission erred by "ignoring [Ms Habibi Arehjan's] reasons to resign" from Sun Metals in November 2018 (Ground 4);

(e) the Commission erred by relying on "the independent assessment doctor", Dr Allen, "who wasn't aware of the [neck] injury" (Ground 5);

(f) the Commission erred by referring to Ms Habibi Arehjan's "redundancy" "without providing evidence to comply with Fair Work Act 2009" (Ground 6);

(g) the Commission erred in its finding at paragraph [84] of the reasons (Ground 7);

(h) the Commission erred by referring (at [92]) to Dr Sterling's certification of Ms Habibi Arehjan on 8 June 2019 at "fit for duty" (Ground 8);

(i) the Commission "used an old case in which the decision was made based on another state Act" (Ground 9);

(j) the Commission "went beyond the expert evidence ... and relied on a surgical treatment plan that wasn't part of the appeal" (Ground 10);

(k) the Commission "didn't consider the exhibits and hearing materials" and didn't comply with the Commission's Code of Conduct for Members (Ground 11);

(l) the Commission "ignored" the requirements of s 144 of the WCR Act (Ground 12);

(m) the Commission "went beyond" the evidence of Dr Ryan (Ground 13); and

(n) the Commission "didn't consider the exhibits and hearing materials, used them selectively" (Ground 14).

• [27] Ground 14 makes essentially the same complaint as is made in ground 11, but in relation to a different part of the judgment under appeal. There is no need to consider ground 14 separately. The appeal proceeded on the basis that grounds 1-13 were Ms Habibi Arehjan's grounds.
• [28] When the appeals came on for hearing, Ms Habibi Arehjan made no complaint about the categorisation of her grounds and she was content to rely upon her written submissions. Her only additional oral submission was:

"APPELLANT: [the matter is about my neck] injury that it wasn't accepted by WorkCover in the time of the accident, and later on, we became [indistinct] that, just injury, that we went the process, but unfortunately WorkCover didn't cover and support the medical treatment that I needed to receive, and I pay for my all treatment, and I proceed through the process, and I went - I did the appeal the case to ensure that I can receive the support that I didn't. It is the reason - one of the reason that I'm here, for the medical treatment that I received last two/three years, up to - I couldn't turn my neck. It was - I couldn't because of the whiplash injury.

It is the first case that I'm here, and also about my wrist, that unfortunately I couldn't work because of my wrist injury. I had my leg injury that I couldn't walk, and I still - I cannot do the field work because of the impairment that I have for my leg and other injuries. I am change my career to the office work, office space job that I can earn the money and I can live by, but then I had the wrist injury. I couldn't work in office, too. So for at least six to nine months, I couldn't work, and this is the reason that I'm here, just have an honest conversation, and to get the agreement with the WorkCover compensation - or regulator, sorry."

• [29] Ms Habibi Arehjan's oral submissions do little more than assert that her injuries persisted, and she did not recover her proper entitlements. As earlier observed, it is not my function to engage in a complete review of Ms Habibi Arehjan's entitlements and injuries. She must be held to her grounds of appeal, which are what will be considered.
• [30] Mr McMillan was content to rely upon his written submissions filed in the appeal but sought to also rely upon his written submissions filed in the Commission to the extent they provided greater detail of the medical evidence which was before the Vice President. Ms Habibi Arehjan was content for those submissions to be tendered and marked Exhibit 1 on the appeal.
• [31] Ms Habibi Arehjan, in her written submissions, filed on the appeal to this Court, referred to her submissions filed in the Commission. Like Mr McMillan's submissions before the Commission, I have had regard to them.

Ground 1 - The Commissioner erred by referring at paragraph [41] of the reasons to "an MRI performed in Tehran on 5 December 2018"

• [32] This ground concerns the appeals to the Commission in file numbers WC/2019/157 and WC/2020/36.
• [33] Paragraph 41 of the Commission's judgment is as follows:

"[41] An MRI performed in Tehran on 5 December 2018 reported fracture of the inferior segment of the sacrum with mild anterior displacement." [11]

• [34] Of paragraph [41], Ms Habibi Arehjan submitted in her written submissions:

"The commissioner in paragraph 41 stated that An MRI performed in Tehran on 5 December 2018, the appellant in her submission in paragraph 96, clearly stated that the MRI was taken by red radiology in Brisbane, Australia. The appellant submitted the evidence in hearing Exhibit #49. the commissioner, even didn't read the exhibit and relied on the respondent submission, which was incorrect"

• [35] Ms Habibi Arehjan is correct in her submissions that the Commission mistakenly stated that the scan was performed in Tehran on 5 December 2018 when it was not. This was conceded by Mr McMillan in his written submissions:

"20) At paragraph [41] of the Commission's reasons, in a section of the reasons headed "Background to Appeals" the Commissioner referred to "an MRI performed in Tehran on 5 December 2018". No such document was tendered in evidence before the Commission, although it was referred to in the Regulator's statement of facts and contentions filed before the hearing. The relevant document, Exhibit 49 before the Commission, was a report by Dr Amarasena, a radiologist, of a CT scan taken of Ms Habibi Arehjan's coccyx on 5 December 2018 at RED Radiology. That report described the injury in identical terms to those used by the Commission at paragraph [41] of the reasons. Plainly, the Commission erred by referring to a document not in evidence. However, the substance of paragraph [41] was correct that medical imaging taken on 5 December 2018 "reported fracture of the inferior segment of the sacrum with mild anterior displacement".

1. In any event, paragraph [41] and the error therein was not material to the issues for determination by the Commission, namely:

a) For WC/2020/36 - whether Ms Habibi Arehjan was entitled to weekly compensation for her coccyx injury from 13 June 2018 to 23 July 2018; and > > b) For WC/2020/37 - whether Ms Habibi Arehjan was incapacitated for work because of the coccyx injury or required further treatment for the coccyx injury from 16 August 2019."

• [36] Ms Habibi Arehjan replied to that submission in her second written submission filed on the appeal:

"[9] In paragraph [20], the respondent admits that the erred happened, which shows the commissioner didn't reviewed the evidence. No CT has been taken from Coccyx of appellant in Tehran, the referred CT is an MRI which was taken from lower lumbar of appellant, which was not accepted in hearing as an evidence."

• [37] This ground concerns exhibit 49, which was Dr Sahan Amarasena's report in relation to a scan performed in Brisbane on Ms Habibi Arehjan on 5 December 2018. In that report, Dr Amarasena opined:

There is a fracture of the Inferior segment of the sacrum (S5) with mild anterior displacement of the distal fracture fragment by approximately 1mm. The fracture line is difficult to clearly visualise with sclerotic change identified in the region consistent with fracture healing. The coccygeal segments appear normally aligned with no fracture. No other fractures are evident. Mild degenerative change bilateral sacroiliac joints evident. No presacral or precoccygeal soft tissue swelling.

• [38] Therefore, the Commission has correctly found:

(a) there was a scan conducted;

(b) it was conducted on 5 December 2018; and

(c) the scan identified a "fracture of the inferior segment of the sacrum with mild anterior displacement".[12]

• [39] Whether the scan was performed in Tehran or Brisbane does not affect the probative value of the evidence provided through Exhibit 49. However, Ms Habibi Arehjan submits that the error shows that the Vice President has not fulfilled his function on appeal of properly reviewing the evidence.
• [40] The observation made at paragraph [41] was part of his Honour's recitation of the chronology of Ms Habibi Arehjan's plight from the time she suffered the injuries in the car accident. That chronology was long and complicated.
• [41] Exhibit 49 was tendered by Ms Habibi Arehjan after Dr Price had given evidence and been excused. The tender was made without opposition from counsel appearing for the Regulator.[13] Neither the tender nor the contents of Exhibit 49 were contentious.
• [42] The error may have come from the Regulator's statement of facts and contentions which was filed in the Commission on 30 March 2021. In that document the Regulator recorded a chronology including; "An MRI performed in Tehran on 5 December 2018 reported fracture of the inferior segment of the sacrum with mild anterior displacement".
• [43] The fact that the Vice President may have taken parts of a chronology from non-contentious statements made in a document filed by the Regulator and made an inconsequential error in respect of a non-contentious document does not lead to a conclusion that the Vice President has failed to properly review the case on appeal.
• [44] There is no substance in ground 1.

Ground 2 - The Commission erred in dealing with Dr Bryant's evidence because the Commission "went beyond" his oral evidence and "ignored" a letter (which was Exhibit 97) written by Dr Bryant

• [45] This ground concerns the appeals to the Commission in file numbers WC/2019/157 and WC/2020/36.
• [46] Dr Bryant is a spinal surgeon. The Commission considered Dr Bryant's evidence at paragraphs [45]-[48] of the judgment under appeal and later at paragraphs [79]-[85]:

"[45] On 18 February 2019 the Appellant was examined by Dr Bryant, Neurosurgeon who noted that the Appellant had had a good result from the injection in the sacrococcygeal junction and the pain was reasonably well controlled.

[46] On 25 February 2019 the Appellant had an MRI of the cervical spine which showed no significant disc protrusion and no cervical cord pathology. A whole-body bone scan with SPECT CT of cervical spine was performed on the Appellant and showed no abnormality. Dr Bryant reviewed the MRI and SPECT CT scans on 25 March 2019 and found them to be entirely unremarkable. He concluded that the most likely diagnosis was a muscular ligamentous whiplash type injury.

[47] On 2 April 2019 Dr Bryant advised that the Appellant had no particular ongoing incapacity from her neck and specifically, nothing that related to her work injury and did not require any further treatment for her neck condition.

[48] On 15 April 2019 Dr Bryant stated there was no incapacity for work at that point in time, with no restrictions placed on the Appellant's work. WorkCover ceased medical treatment and incapacity benefits on 3 May 2019 in relation to the "musculoligamentous injury to the cervical spine" condition."[14]

"[79] Dr Michael Bryant, orthopaedic surgeon in a report dated 2 April 2019 sets outs out the following responses to a series of questions:

1. Where there has been a change to the diagnosis of her neck complaint?

The diagnosis in Nadia for her cervical complaint is that of "muscular ligamentous whiplash type injury". There is no specific disc injury nor any compression of the nerve and certainly nothing that surgery is going to help.

1. Is Nadia incapacitated as a result of her neck condition?

Nadia has no particular ongoing incapacity from her neck and specifically, nothing that relates to her work injury.

1. Does Nadia require further treatment for her neck condition?

[80] In the report of 15 April 2019, Dr Bryant stated that the Appellant required no specific treatment nor any ongoing need for rehabilitation. Further, there was, at that time, no incapacity for work nor was it necessary to place restrictions on the Appellant's ability to return to work.

[81] Dr Bryant further noted in his report of 17 July 2019 that:

I do not feel there is any surgically amenable cervical injury in Nadia's circumstance with a Musculo-ligamentous strain the most likely explanation for her reported ongoing symptoms. This should be considered partial incapacity. The degree of incapacity should be formally assessed by an independent assessor specifically trained in the degree of impairment assessments.

[82] Dr Bryant went on to observe that he did not feel that there is any surgically correctable neck injury related to the reported work accident that should be impacting significantly on the Appellant's hours or days of work. Further, he believed no other hospitalisation or medical treatment was necessary at that time.

[83] In a file note dated 4 November 2021 Dr Bryant clarified his reference to 'partial incapacity' in his report of 17 July 2019 by stating that he did not consider the Appellant to have any incapacity to work because of her musculoligamentous injury to her cervical spine, as stated in his reports of 2 April 2019, 15 April 2019 and 12 July 2019. His statement about 'partial incapacity' in his report was based on the Appellant's self-reports of pain rather than on any objective signs of injury.

[84] No evidence has been adduced by the Appellant to suggest that at the time of the cessation of the compensation payments that she had any entitlement associated with a musculoligamentous injury to the cervical spine.

[85] I accept the medical evidence, and, in particular the evidence of Dr Bryant, which does not support a conclusion that the Appellant had a total or partial incapacity for work because of the accepted work-related neck injury beyond 2 May 2019. Further, the evidence does not support a conclusion that there is a requirement for the Appellant to undergo further medical treatment, hospitalisation or other expenses for the management of the accepted work-related neck injury beyond 2 May 2019."

• [47] In Ms Habibi Arehjan's written submissions in relation to ground 2, she states:

"[21] The Commissioner went beyond of Dr. Bryant's oral testimony, Doctor Bryant Stated that:

a standard surgical consultation, and rehabilitation physicians and - and occupational physicians are far better qualified than myself to perform those sorts of assessments and - and - and - and enrol in - in - in that sort of treatment strategy. As a surgeon, - I - I need to exclude surgically correctible pathologies, and often with whiplash injuries, almost invariably with whiplash injuries, there is no surgically treatable pathology, and so, depending on the patient's reported on going symptoms, alternative arrangements need to be made for ongoing treatment, if - if it's indicated.

I have reviewed the treatment plan discussed by the Dr Zofia Piotrowska-Hess and Nadia Habibi and I agree it is the best treatment option for Nadia. This isn't any surgical intervention that will benefit Nadia at this moment.

APPELLANT: Thank you, Doctor. Doctor, just one thing. How do you describe your relationship, medical relationship, with Ms Habibi? ---The relationship broke down when Ms Habibi was - felt- or thought by my assistant - my executive assistant at the time that Ms Habibi had become threatening. So I wrote a letter to 10 your - to the GP suggesting that it would best for us to discontinue our therapeutic relationship. Is this the reason you send letter 26th of July 2019 to my GP Dr Sophia PiotrowsaHess? ---That's correct. 15 May I ask you that what was your opinion about the relationship with Ms Habibi before this brokage? --- The relationship was entirely therapeutic. I was - I accepted the role as the treating specialist for this condition. I found no role for any surgical intervention and could not find any - any reason to continue discussions regarding 20 surgery. Yes? --- There was much toing and froing with WorkCover at that stage about what the best treatment plan was moving forward and certainly I couldn't offer any sensible treatment plan. It was my opinion that strictly speaking from a surgical 25 point of view there was no disablement as a result of the injury per se.

[22] The commissioner ignored the Dr. Bryant letter prior to damage to the relationship between Nadia Habibi and Dr. Bryant on 26 July:

I have reviewed the treatment plan discussed by the Dr Zofia Piotrowska-Hess and Nadia Habibi and I agree it is the best treatment option for Nadia. This isn't any surgical intervention that will benefit Nadia at this moment."

• [48] Mr McMillan, in his written submissions, stated:

"22) The error alleged in that the Commission "went beyond Dr Bryant's oral testimony" and "ignored" a letter from Dr Bryant.

1. The Commissioner dealt specifically with Dr Bryant's evidence at paragraphs [45]-[48] and [79]-[85]. The Commissioner did not specifically refer to exhibit 97, but there was no error in that omission because the content of the letter, which is undated, was consistent with Dr Bryant's evidence and the Commission's treatment of it, namely that Dr Bryant's expert opinion as a spinal surgeon was that Ms Habibi Arehjan's neck injury did not cause incapacity for work and did not require further treatment.
2. Dr Bryant was asked about exhibit 97 in oral evidence but Ms Habibi Arehjan did not suggest to him any alleged inconsistency with his other evidence regarding her neck injury. Dr Bryant confirmed his view, apparently by reference to the context of exhibit 97, that he agreed with Dr Hess's plan to refer Ms Habibi Arehjan to a pain specialist."

• [49] Ms Habibi Arehjan's written submissions in reply on this ground were:

"[10] Dr. Hess recommended the treatment plan that agreed by Dr. Bryant, As Dr. Bryant testimony, he agreed that his view was surgical treatment and he agreed that rehabilitation physios are the best people to determine the treatment plan for whiplash injury

[11] Not considering the oral testimony changed the hearing outcome.

[12] Chapter 3, Part 8A, ss 144A and 144B of the WCR Act covers any type of treatments, including the pain management, chiropractor, and physiotherapy, which were part of the treatment plan for whiplash injury, refer to EPC. The commissioner focused on surgical treatment requirements."

"I have review the treatment plan discussed by Dr Zofia Piotrowska-Hess and Nadia Habibi and I agree that it is the best treatment option for Nadia. There isnt any surgical intervention that will benefit Nadia at this moment.

Please not hesitate to call me if you need any further questions."

• [51] I cannot see anything in paragraphs [45] to [48] or [79] to [85] of the judgment under appeal which is inconsistent with anything that Dr Bryant had said in his evidence, or anything he wrote in Exhibit 97.
• [52] In Ms Habibi Arehjan's cross examination of Dr Bryant at the Commission, she appears to be at cross purposes with him. Dr Bryant is a surgeon. In Exhibit 97 he opined that there was no surgical intervention that was called for. That is not inconsistent with Dr Poitrowska-Hess' approach of instigating a treatment program for what appeared to be a whiplash injury. This is made clear in Dr Bryant's evidence given in cross-examination by Ms Habibi Arehjan:

"Yes?---There was much toing and froing with WorkCover at that stage about what the best treatment plan was moving forward and certainly I couldn't offer any sensible treatment plan. It was my opinion that strictly speaking from a surgical point of view there was no disablement as a result of the injury per se.

Yeah?---Ms Habibi reported ongoing pain and Dr - Dr Hess suggested that she would refer you to a pain special - or refer Ms Habibi to a pain specialist which I felt at that stage was an entirely appropriate next step.

I appreciate that, Doctor. Just have you ever just treated the patient with the whiplash injury? Sorry I'm asking, I'm not questioning your knowledge, just confirmation that have you ever just treated a patient for the whiplash injury?---As a surgeon I treat surgical conditions and whiplash would not be considered a - a truly surgical condition and so patients who have reported pain despite no evidence of any anatomical disruption on good quality MRI scans and bone scans, I offer simple strategies including pain management and avoidance strategies but if it's anything more complex than that there is always - or - not always but there can be referral to a pain specialist depending on the patient's reported symptom. So, yes, in answer to your question, yes, we see patients with whiplash injuries on a fairly regular basis."[15]

"HIS HONOUR: Yes?--- - - - that - that does not form of a - a standard surgical consultation, and rehabilitation physicians and - and occupational physicians are far better qualified than myself to perform those sorts of assessments and - and - and - and enrol in - in - in that sort of treatment strategy. As a surgeon, I - I need to exclude surgically correctible pathologies, and often with whiplash injuries, almost invariably with whiplash injuries, there is no surgically treatable pathology, and so, depending on the patient's reported on going symptoms, alternative arrangements need to be made for ongoing treatment, if - if it's indicated."[16]

• [53] Dr Bryant's opinion is that there was no incapacity. That is not inconsistent with his view that treatment for pain management might be appropriate.
• [54] There is no substance in ground 2.

Ground 3 - The Commission erred by referring to reports of Dr Panjal Relan and Dr Peter McCombe which were not in evidence

• [55] This ground concerns the appeals to the Commission in file numbers WC/2019/157 and WC/2020/36.
• [56] The reports of Dr Relan and Dr McCombe are referred to in paragraphs [53] and [54] of the judgment under appeal:

"[53] On 29 June 2019 Dr Pankaj Relan reported the Appellant was suffering from an adjustment disorder with mixed anxiety and depressed moods. Her employment was the major significant contributing factor. She had a reasonable capacity to engage in full‑time work and he did not consider that further treatment would be of any additional benefit.

[54] On 1 July 2019 Dr Peter McCombe, Orthopaedic Surgeon reported that the Appellant was complaining of pain in the sacrum, coccyx and occasionally the lumbosacral junction. This pain was markedly worse when sitting, particularly in a hard chair. She could sit for only a few minutes in an unsuitable chair though she could manage one to two hours on a suitable soft chair. She had no problems with standing or walking which was unlimited. Lifting weights of more than about 5 kg however caused her lower back and sacral pain. Dr McCombe diagnosed coccydenia and possibly a soft tissue injury. The coccydenia did not affect her ability to continue working in her current job."

• [57] In support of this ground, Ms Habibi Arehjan made two submissions in her first written submission:

"[23] In Paragraph 53 and 54, the commissioner refers to Dr Pankaj Relan and Dr Peter McCombe reports that were not disclose in the hearing."

"[37] The commissioner used the expert evidence which is not disclosed in hearing to the appellant and is not exhibit a document"

• [58] Mr McMillan, in his written submission, responded as follows:

"25) The Commission referred to reports of Dr Panjak Relan and Dr Peter McCombe at paragraphs [53]-[54] of the reasons under the heading "Backgrounds to Appeals".

1. It is correct (as the Appellant submits) that those reports, while referred to in the Regulator's statement of facts and contentions, were never received in evidence by the Commission. Since the reports referred to were never received by the Commission, it must be inferred that the references to them in the Commission's reasons relied on the content of the Regulator's statement of facts and contentions. However, the Commission could not have considered the reports or taken them into account in determining any of the issues before it in the appeals because it didn't receive them. In that regard, it is notable that there is no reference to either of these reports in the paragraphs of the reasons under the heading "Consideration".
2. Further, the reports were plainly not relevant to any of the issues for determination by the Commission. It is apparent from the text of paragraphs [53]-[54] that Dr Relan's report related to Ms Habibi Arehjan's adjustment disorder and Dr McCombe's report related to her coccyx injury. Material relevant to those injuries could only be relevant to WC/2020/36 because WC/2019/157 related only to the neck injury and WC/2020/37 related only to the left wrist EDC tendonitis. Both reports, by the text of paragraphs [53]-[54], post-dated the period relevant to WC/2020/36, being 13 June 2018 to 23 July 2018. Therefore, that material must be irrelevant to the issues for determination in that appeal. As such, any error by the Commission in referring to material that was described in the Regulator's statement of facts and contentions but not ultimately put into evidence, was not material to any of the Commission's decisions.
3. The Commission's consideration of WC/2020/36 is set out at paragraphs [86] to [104] of the reasons. The evidence referred to and considered in those paragraphs supports the finding at [100] that "no economic incapacity has been demonstrated" and at [104] that Ms Habibi Arehjan "was not otherwise entitled to incapacity benefits" for the relevant period."

• [59] In her reply submissions, Ms Habibi Arehjan said:

"[13] The commissioner didn't consider the fact , by considering the irrelevant phrases , without having the evidence, changed the hearing outcome.

[14] The respondent confirmed that Dr Panjak Relan and Dr Peter McCombe's report wasn't submitted as evidence.

[15] The respondent tried to demonstrate that the neck pain is psychological pain and Dr Relan report was about the appellant psychological injury."

• [60] Dr Relan and his report are only mentioned once in the judgment and that is at paragraph [53]. Dr McCombe is mentioned twice in the judgment, on both occasions in paragraph [54].
• [61] Paragraphs [53] and [54] of the judgment appear under the heading "Background to Appeals". As was observed in relation to ground 1, that part of the judgment records a chronology. It is apparent both in relation to this ground 3 and ground 1 that the Vice President relied upon the chronology set out in the Regulator's statement of contentions.
• [62] The reference to the reports of Dr Relan and Dr McCombe was made in error. However, there is nothing to support Ms Habibi Arehjan's submission made in her second written submission that the reference to those reports "changed the hearing outcome". Overwhelmingly, the inference is quite the contrary.
• [63] As observed, the Vice President referred to the reports at paragraphs [53] and [54]. He did not mention them again. After setting out the chronology in the "Background to Appeals" part of the judgment, the Vice President then turned to an examination of "Relevant employment history".[17] The Vice President then turned to "Consideration" where he analysed the material relevant to each of the three appeals.[18] Neither Dr Relan nor Dr McCombe, nor their reports are mentioned anywhere in the pages of the judgment where the Vice President considers the merits of the appeals. There is nothing to suggest that anything said by Dr Relan or Dr McCombe in any report played any part in the Vice President's decision to dismiss the appeals.
• [64] Ground 3 has no substance.

Ground 4 - The Commission erred in "ignoring [Ms Habibi Arehjan's] reason to resign" from Sun Metals in November 2018

• [65] This ground relates to appeals to the Commission in files WC/2019/157 and WC/2020/36.
• [66] Ms Habibi Arehjan, in her first written outline, said:

"[24] In paragraph 69 the commissioner ignores the reason to resign; in Exhibit 84, the appellant clearly states that she couldn't carry out the job for which she was working."

• [67] Mr McMillan, on behalf of the Regulator, submitted:

"29) The Commission noted, at paragraph [69] of the reasons, that Ms Habibi Arehjan resigned her employment from Sun Metals (where she had been employed, after Incitec, since 1 August 2018) on or about 24 November 2018. Ms Habibi Arehjan's reasons for resigning were not relevant to any of the issues for determination by the Commission. Therefore, there was no error in the Commission not dealing with them in its reasons..

1. Further, none of the medical evidence supported a finding that Ms Habibi Arehjan resigned her employment with Sun Metals due to incapacity arising from her injuries and the termination form, exhibit 84, records her reason as being that the job was "completely different from applied for"."

• [68] Ms Habibi Arehjan, in her reply submissions, submitted:

"[16] The appellant denied the reason for the resignation; the appellant couldn't perform the job because of incapacity; she requested a change to the position description that wasn't agreed upon by SunMetals, while they were happy with the appellant's performance."

• [69] Ms Habibi Arehjan's complaint is as to the finding in paragraph [69] of the Vice's President's reasons.[19] It is necessary to put that paragraph in some context.
• [70] As already observed, the Vice President, under the heading "Background to Appeals", set out a chronology of events from the time of the accident.[20] When reciting the chronology, the Vice President referred to various instances where Ms Habibi Arehjan had obtained medical treatment and then mentioned Sun Metals for the first time at paragraph [34]:

"[34] The Appellant obtained full time employment as an electrical engineer for Sun Metals on 6 August 2018."

• [71] The Vice President then continued his chronology referring to a number of medical procedures and opinions. He then observed:

"[38] On 16 November 2018 Associate Professor Satish Karunakaran, consultant neuropsychiatrist, provided a report stating that the Appellant was suffering from an adjustment disorder with mixed anxiety and depressed moods, of moderate severity. He considered that the work-related physical injuries were "a major factor for her psychological injury". Any incapacity for work due to psychological symptoms appeared to have ceased, but she remained symptomatic with considerable amounts of distress. She should go on antidepressant medication and have 12 sessions of psychological treatment.

[39] On or about 24 November 2018 the Appellant resigned from Sun Metals."

• [72] After explaining the chronology of medical treatment provided to Ms Habibi Arehjan, the Vice President turned to "Relevant employment history".[21] While recording Ms Habibi Arehjan's employment history the Vice President referred to the accident on 10 February 2017,[22] and recorded that the employment with Incitec was terminated by way of redundancy on 13 June 2018.[23] After noting some evidence about the redundancy, the Vice President then observed:

"[63] On the same day that the Appellant was made redundant, she applied for a new position with Sun Metals Corporation Pty Ltd."

• [73] His Honour then observed: [24]

"[65] During the period 24 July 2018 and 5 August 2018, the Appellant was certified as 'Not able to work at all' by Dr Stevens. During this period, the Appellant received workers' compensation benefits.

[66] By letter dated 1 August 2018, Sun Metals Corporation Pty Ltd made an offer of fixed term employment to the Appellant. The Appellant accepted the offer and commenced employment as an Electrical Instrumentation Engineer on 6 August 2018 on an annual salary of $125,000.

[67] The Appellant's employment with Sun Metals was subject to the completion of all pre‑employment medical tests. In her oral evidence she told the Commission that she completed her pre-employment medical assessment but that: " ... it was horrible, very heavy. After the medical assessment I laid down on my back of my car for two hours on my - it's too much because of the pain that I had in my back, and my leg was shaking ... ."

[68] On 21 September 2018, the Appellant received a positive probation review noting that her performance and conduct met the employer's expectations during the review process.

[69] The Appellant resigned from Sun Metals on or about 24 November 2018."

• [74] It can be seen that the statement at paragraph [69] of the judgment under appeal is not made in isolation. It is made after recitation of other facts relevant to Ms Habibi Arehjan's departure from Sun Metals.
• [75] Once the Vice President had recorded Ms Habibi Arehjan's employment history since the accident, he then turned to consideration of the appeals. He obviously appreciated that Ms Habibi Arehjan's case was that she was incapacitated by the injuries and he determined that issue upon consideration of the medical evidence.
• [76] Ms Habibi Arehjan says that in exhibit 84 she "clearly states that she couldn't carry out the job for which she was working."
• [77] Exhibit 84 is the termination form whereby Ms Habibi Arehjan left the employment of Sun Metals. Exhibit 38 is a probation review dated 21 September 2018, and exhibit 39 is a letter (with attachments) dated 14 November 2018 from Sun Metals to "Nadia Habibi", obviously a reference to Ms Habibi Arehjan.
• [78] The probation review contains comments:

"Nadia has experienced with electrical /HV and Instrumentation.

She is doing lots of engineering work in terms of High level engineering, including Electrical/Instrumentation.

She is doing lots of engineering work in terms of High level engineering, including Electrical/Instrumentation installation specification and sizing of transformers, MCC SLD.

She is very good performance to meet our preliminary and detailed engineering schedule.

I'm so happy for her performance outcome."[25]

• [79] On 24 October 2018, Ms Habibi Arehjan reported by email to relevant employees of Sun Metals that she had injured herself by putting dishes into the dishwasher machine. This had occurred while she was at work for Sun Metals.[26] That email provoked the letter from Sun Metals to Ms Habibi Arehjan of 14 November 2018 which became exhibit 39. Sun Metals had made an appointment for Ms Habibi Arehjan to be assessed by an occupational physician and they sought an authorisation to be signed by Ms Habibi Arehjan releasing medical information from the occupational physician to Sun Metals.
• [80] Exhibit 84, which is the termination form, is dated 21 November 2018. It has attached to it an email from Ms Habibi Arehjan dated 26 October 2018 addressed to Peter Mulligan "of Hays" which might be a recruitment agency. In that email, Ms Habibi Arehjan said:

Definitely, Sun Metals is not going to have any changes in my position description; I am actively looking for a job in Brisbane.

• [81] The termination form itself bears this: [27]

The proposed JD is completely different from applied JD."

• [82] I infer that "JD" refers to "job description."
• [83] Ms Habibi Arehjan gave evidence before the Vice President about her experience with Sun Metals. She said that she was looking for an office job as she could cope with work of that nature despite her injuries. She explained that the job description of the position she obtained with Sun Metals did not match what was required in the actual position which was maintenance work.[28] Ms Habibi Arehjan was cross-examined before the Vice President[29] and questioned about her employment at Sun Metals. The cross-examination established that Ms Habibi Arehjan was employed at a higher salary than she was for Incitec and she left because the job did not suit her.[30]
• [84] The Vice President made no findings adverse to Ms Habibi Arehjan in relation to Sun Metals. As already observed, he resolved the contest as to whether she was incapacitated, not by looking at her work at Sun Metals or her resignation, but by considering the medical evidence.
• [85] There is no substance in ground 4.

Ground 5 - The Commission erred by relying on "the independent assessment doctor", Dr Allen, "who wasn't aware of the [neck] injury"

• [86] The ground relates to appeals to the Commission files WC/2019/157 and WC/2020/36
• [87] Ms Habibi Arehjan says in her first written outline:

"[27] The whiplash injury was diagnosed by the appellant's physiotherapist in May 2018. The commissioner relied on the independent assessment doctor, who wasn't aware of the injury. An independent medical assessor can only assess the area that has been asked. Dr. Allen assessed the shoulder injury in April 2018, which is irrelevant to the neck injury."

• [88] Mr McMillan, on behalf of the Regulator, submitted:

"31) The error alleged here is that the Commission accepted Dr Allen's expert evidence regarding Ms Habibi Arehjan's neck injury when he was initially engaged only in relation to her left shoulder injury. However, it is apparent from Dr Allen's report and his oral evidence that he was aware of Ms Habibi Arehjan's neck injury, he was appropriately qualified to give an opinion regarding that injury and it was appropriate for him to do so."

• [89] Ms Habibi Arehjan, in her reply submissions, submitted:

"[17] Referring to paragraph [3], IME can only examine the area that was agreed upon with the insurer; the neck injury wasn't diagnosed at the time of the assessment, so it was impossible for R. Allen to examine the injury of which he wasn't aware. Dr. Allen examined the shoulder in April 2018. The whiplash injury was diagnosed by Ms. Corena Caltabiano on 25th May 2018, Dr. Allen wasn't aware of the injury at the time of the assessment.."

• [90] Ms Habibi Arehjan's reference to paragraph [3] in paragraph [17] of her reply submissions, is a reference to paragraph [3] of those same reply submissions. It appears as:

"[3] Ethical Guidelines on Independent Medical Assessments 2010. Revised 2015

3.1 Prior to conducting the independent medical assessment, the doctor should ensure that the party requesting the report provides a written explanation of the medico-legal issues to be addressed. If in doubt about what to address, the doctor should contact the party. Generally, the issues will include a history given by the examinee, results of examinations, investigations or testing, comments on clinical material provided, diagnosis, prognosis and future management of any condition."

• [91] As to Dr Allen, the Vice President observed in his judgment:

"[27] The Appellant was examined by Dr Phil Allen, Orthopaedic Surgeon on 27 April 2018. Dr Allen reported the Appellant's cervical spine revealed no spasm or tenderness and she had symmetrical movement in all directions which was within normal range. Dr Allen could not find any objectively verifiable pathology in the left shoulder."

"[78] In the report of Dr Phil Allen, Orthopaedic Surgeon dated 30 April 2018, he opined:

I could find no objectively verifiable pathology in the left shoulder. I therefore conclude that regards to the left shoulder any work related injuries of the 10th February 2017 have now ceased.

There is no incapacity for work as an Electrical Engineer with respect to the left shoulder.

In the absence of any objectively verifiable pathology in the left shoulder there is no indication for any further medical treatment or hospitalisation."

"[95] In respect of her shoulder, Dr Rimmerton said in his report of 9 November 2017 that the Appellant's shoulder was "back to normal". In a facsimile to WorkCover dated 26 February 2018 in answer to a question as to whether the Appellant was able to return to full duties in respect of her left wrist Dr Ryan replied: "[y]es, this was likely, given her progress at her last consultation". Further, Dr Allen expressed the view that: "There is no incapacity for work as an Electrical Engineer with respect to the left shoulder".".

• [92] In Dr Allen's report,[31] the Doctor opines that Ms Habibi Arehjan's left shoulder is normal and says:

"Examination of the cervical spine revealed no spasm or tenderness and she had symmetrical movement in all directions which was within the normal range. There were no radicular signs or symptoms in her arms."

• [93] Ms Habibi Arehjan's complaint is that Dr Allen was only retained, she submits, to examine her shoulder not her cervical spine (neck). Ms Habibi Arehjan submits that Dr Allen was not authorised to examine her neck and, therefore, his opinion ought not have been admitted into evidence.
• [94] The evidence is obviously relevant and admissible. There is no suggestion that Dr Allen was not qualified to give an opinion as to Ms Habibi Arehjan's neck injury. In my view, there was no error in receiving and acting upon the evidence. Even if there was an error, it hasn't affected the result as there was other evidence. Dr Rimmington, an Orthopaedic Surgeon, thought an MRI to Ms Habibi Arehjan's cervical spine in 2017 "was unremarkable" and Dr Bryant on the 2nd April 2019 thought that the neck injury had "ceased".[32]
• [95] Ground 5 has no substance.

Ground 6 - The Commission erred by referring to Ms Habibi Arehjan's "redundancy" without providing evidence to comply with the Fair Work Act 2009

• [96] This ground relates to appeals to the Commission files WC2019/157 and WC/2020/36.
• [97] Ms Habibi Arehjan says in her first written outline:

"[28] In multiple paragraphs, the commissioner stated the redundancy agreement, without providing the evidence to comply with Fair Work Act 2009 - Legislation, division 11 requirements."

• [98] Mr McMillan, on behalf of the Regulator, submitted:

"32) This ground is premised on a misunderstanding of the law and the matters for determination by the Commission in the appeals. The provisions of the Fair Work Act 2009 as they relate to "redundancy" payments have no application or relevance to the issues for determination in these appeals.

1. There was no error in the Commission referring to Ms Habibi Arehjan's "redundancy". The Settlement and Release agreement between Ms Habibi Arehjan and Incitec provided at clause 1.1 that Ms Habibi Arehjan's employment was terminated "for reasons of redundancy" and Ms Habibi Arehjan accepted in evidence that she had received a "redundancy" payment."

• [99] Ms Habibi Arehjan refers to paragraph [7] of her reply outline, which is in the terms:

"[7] The appellant denied the redundancy by Incitec Pivot, The respondent failed to provide the termination notice, which issued by incitect Pivot, the appellant role (Responsible Electrical Engineer Role) was a mandatory role, which couldn't become redundant..

Job: Lead Electrical, Instrumentation and Controls Engineer at INCITEC PIVOT LIMITED Australia (joblum.com)

The applanate and IPL agreed to be separated, without having any effect on worker compensation benefits."

• [100] Chapter 2, Part 2-2 of the Fair Work Act 2009 contains the National Employment Standards. Division 11 of that Part concerns "Notice of termination and redundancy pay". There is nothing in that division relevant to the entitlement of Ms Habibi Arehjan to Workers' Compensation Payments under the Workers' Compensation and Rehabilitation Act 2003.
• [101] The reference to the redundancy payment is made by the Vice Present while recording Ms Habibi Arehjan's "Relevant employment history". The Vice President said:

"[57] At the time of the motor vehicle accident on 10 February 2017, the Appellant was employed as an Electrical Engineer with Incitec. She commenced her employment with Incitec on 1 February 2016.

[58] The Appellant's employment with Incitec was terminated by way of a redundancy on 13 June 2018. Clause 1.1 of the redundancy agreement states:

Ms Habibi Arehjan's employment will be terminated for reasons of redundancy, effective 13 June 2018.

On the 1st business day after the 1st of July, the company will pay Ms Habibi Arehjan:

a) an amount equivalent to Ms Habibi Arehjan's leave entitlements (if any) accrued to the End Date; and

b) the amount equivalent to five (5) weeks' notice; and

in each case less amounts required to be deducted by the Company for taxation.

[60] Consistent with the redundancy agreement, the Appellant accepted that she received her statutory leave entitlements, five weeks' pay in lieu of notice, and a redundancy payment of $30,000."

• [102] The evidence supports those findings, which appear to be non-contentious. Ground 6 has no substance.

Ground 7 - The Commission erred in its finding at paragraph [84] of the reasons

• [103] This ground concerns appeals in the Commission files WC/2019/157 and WC/2020/36.
• [104] Paragraph [84], which is referred to in the ground, is as follows:[33]

"No evidence has been adduced by the Appellant to suggest that at the time of the cessation of the compensation payments that she had any entitlement associated with a musculoligamentous injury to the cervical spine."

• [105] In support of this ground, Ms Habibi Arehjan submitted:

No evidence has been adduced by the Appellant to suggest that at the time of the cessation of the compensation payments that she had any entitlement associated with a musculoligamentous injury to the cervical spine.

The appellant has demonstrated her incapacity in multiple statements through a medical expert and herself.

Due to her physical limitations, the plaintiff was not able to perform physical activities, and to make a living, she had to turn to intellectual activities, which was difficult due to severe headaches as a result of the whiplash injury. In 2018, she worked from 6th August to 24th November, she resigned as the job description didn't change. In 2019, she changed her job every 45 days until she was treated in March 2020, and after the treatment, she was continuously working and earning income."

• [106] Mr McMillan, for the Regulator, submitted:

"34) This ground alleges an error in the finding at paragraph [84] of the reasons, presumably on the basis of the early grounds. However, Ms Habibi Arehjan has not identified any evidence adduced by her before the Commission to establish that she was incapacitated by her neck injury or that it required further treatment, for the purposes of ss 144A and 144B of the Act, after 2 May 2019. There is no error in the Commission's treatment of the evidence relevant to WC/2019/157 at paragraphs [75] to [83] of the reasons or in the conclusion at paragraph [84].

1. Ms Habibi Arehjan asserts that she was "not able to perform physical activities, and to make a living... as a result of the whiplash injury". However, the weight of the evidence before the Commission supported a finding that Ms Habibi Arehjan was not incapacitated for work due to her neck injury and it did not require further treatment from 2 May 2019."

"[19] The appellant stand by her First submission P[29].

[20] June 2018, Dr Simon Journeaux accepted that the appellant has incapacity

[21] Incapacity and treatment requirement have been recorded in multiple letters from treatment physios, and improvement has been recorded

[22] Impairment assessment shows 5% impairment after receiving 5 years physio, and two procedure to burn the nerve neck"

• [108] Paragraph [84] in the Vice President's judgment was followed by:

"[85] I accept the medical evidence, and, in particular the evidence of Dr Bryant, which does not support a conclusion that the Appellant had a total or partial incapacity for work because of the accepted work-related neck injury beyond 2 May 2019. Further, the evidence does not support a conclusion that there is a requirement for the Appellant to undergo further medical treatment, hospitalisation or other expenses for the management of the accepted work-related neck injury beyond 2 May 2019."

• [109] Paragraphs [84] and [85] are the concluding paragraphs in a passage in the judgment which starts at paragraph [77], where the Vice President summarises the medical evidence relevant to appeal WC/2019/157 being the injury to the cervical spine. When the judgment is looked at as a whole it can been seen that, in paragraphs [84] and [85], the Vice President is saying that he has accepted the medical evidence and formed his decision upon that.
• [110] Ms Habibi Arehjan says there is other medical evidence. She referred to the report of Dr Simon Journeaux. That was considered at paragraph [31] of the Vice President's judgment:

"[31] On 28 June 2018 the Appellant was examined by Dr Simon Journeaux, Orthopaedic Surgeon, who stated:

(a) the Appellant reported a burning pain in the mid to low cervical spine intermittently three to four times per week;

(b) the Appellant denied having any symptoms referable to the left or right shoulder;

(c) the Appellant had likely suffered a musculoligamentous injury to the cervical spine;

(d) that no further treatment would be of benefit in relation to the neck injury and

(e) the Appellant had the capacity to work in her substantive role but had partial incapacity related to ladder work and working on certain sites as a consequence of her left knee/femoral fracture."

• [111] The date on which weekly payments were stopped was 2 May 2019. By that point there was a body of evidence that there was no incapacity for work in relation to Ms Habibi Arehjan's neck injury. In particular:

(a) Dr Allen's opinion given on 27 April 2018;[34]

(b) Dr Sterling's certification of fitness;[35]

(c) Dr Journeaux in his report of 28 June 2018;[36]

(d) Dr Bryant in his report of 2 April 2019; and[37]

(e) Dr Bryant in his report of 15 April 2019.[38]

• [112] As to Dr Journeaux's evidence there are exhibits 101 and 102 being file notes of conferences with the Regulator's counsel. Those notes were signed by the Doctor.[39]
• [113] Exhibit 101 was made on 16 April 2020, it included:

"3. Dr Journeaux noted the treatment plan proposed by Dr Berge, as outlined in his letter of 3 February 2020. Dr Journeaux considered that the treatment proposed was unlikely to be of benefit to Ms Habibi Arehjan because of psychosocial factors influencing her presentation."

• [114] Exhibit 102 is dated 4 November 2021, it included:

"1. Further to his report dated 28 June 2018, Dr Journeaux clarified that he believed Ms Arehjan did not have any physical incapacity for work because of her musculoligamentous injury to the cervical spine.

The partial incapacity to which he referred was based on Ms Arehjan's self report of pain for which he was unable to find any physical/structural cause"

• [115] Ms Habibi Arehjan relies on evidence of her treating physiotherapist Carina Caltabiano. Ms Caltabiano was called as a witness before the Commission by Ms Habibi Arehjan and several exhibits were tendered.[40] Those various documents demonstrate that Ms Caltabiano, an experienced Physiotherapist treated Ms Habibi Arehjan for neck and shoulder difficulties beyond the date of termination of payments.[41]
• [116] Ms Caltabiano was cross examined before the Commission. Counsel for the Regulator attempted to illicit an acceptance from Ms Caltabiano that she would defer to the opinion of Orthopaedic Specialists. She refused to make that concession saying, understandably, that she formed her own views independently, but would work collaboratively for a patient's benefit with the doctors.[42]
• [117] The Vice President does not refer to Ms Caltabiano's evidence in the judgment. However, when properly viewed, Ms Caltabino's evidence doesn't go far. She was treating Ms Habibi Arehjan for pain reported by Ms Habibi Arehjan in her neck and shoulder. That does not prove incapacity. The Vice President relied upon a solid body of evidence from orthopaedic specialists to conclude that the Regulator's decision was fair and reasonable. In my view the Vice President's decision to do so was justified.
• [118] Paragraph [84] of the Commission's reasons does not show error and ground 7 is not made out.

Ground 8 - The Commission erred by referring [at] [92] to Dr Sterling's certification of Ms Habibi Arehjan on 8 June 2018 as "fit for duty"

• [119] This ground concerns appeals in the Commission files WC/2019/157 and WC/2020/36.
• [120] The complaint is about the finding at paragraph [92] of the judgment under appeal. Paragraphs [91] and [92] of the judgment are:

"[91] In the medical report of Dr Greg Sterling, Orthopaedic Surgeon dated 6 June 2018 he notes that the Appellant was performing most of her work duties with the only exception being going up and down ladders when on site.

[92] Dr Sterling certified the Appellant as fit for suitable duties with no restrictions in hours or days which was signed by the Appellant on 8 June 2018." [43]

• [121] In her first written submission, Ms Habibi Arehjan said:

"[30] In Paragraph 92 the commissioner refers to the suitable duty which signed by Dr. Sterling and Dr. Remington, which doesn't comply with Dr. Sterling's oral testimony; this is reflected in the appellant's submission in paragraph 96. This suitable duty doesn't cover S5 fracture and whiplash injury."

"36) Ms Habibi Arehjan appears to contend that the Commission erred by referring (at 92]) to Dr Sterling's certification of Ms Habibi Arehjan on 8 June 2018 as "fit for duty". She refers to paragraph [96] of her final submissions to the Commission, in which she submitted:

"The mentioned suitable duty was approved by Dr. Sterling and Dr. Rimmington without considering the Fracture of the distal sacrum/coccydynia, Soft tissue to lumbar spine, and other injuries which were accepted by work cover in later date."

1. The Commission's reference to Dr Sterling's certification on 8 June 2018 was clearly relevant to the issue for determination in WC/2020/36, being Ms Habibi Arehjan's entitlement to compensation from 18 June 2018 to 23 July 20218. Further, the other evidence referred to by the Commission at paragraphs [86] to [98] supported the conclusion at [100] that Ms Habibi Arehjan was not incapacitated by any injury other than her left wrist ECD tendonitis during that period.
2. The "impairment assessment" referred to at paragraph [32] of Ms Habibi Arehjan's submissions was not in evidence before the Commission and does not, in any event, prove incapacity for the purposes of s 144A of the Act.
3. Further, the conclusion that Ms Habibi Arehjan was otherwise not entitled to compensation during that period by operation of s 147 of the Act because of the payments she received in accordance with the Settlement and Release agreement was plainly correct at law."

• [123] In her reply submissions, Ms Habibi Arehjan said:

"[23] The appellant stands by her submission; each doctor can recommend a suitable duty based on the injury that they are treating, not for all injuries. The suitable duty dated June 2018 doesn't cover neck, Lumbar, injury and Coccyx fracture, which were accepted after June 2018.This resulted in an incident at SunMetals.

[24] The impairment assessment is fresh evidence, which proves that the commissioner didn't consider the appellant's submission and evidences."

• [124] Dr Sterling is mentioned on numerous occasions in the Vice President's judgment.[44] His opinions in relation to Ms Habibi Arehjan are recorded in the passage in the part of the judgment entitled "Background to Appeals".[45] There is no complaint about the accuracy of what is recorded.
• [125] When considering appeal WC/2020/36,[46] the Vice President referred to a good deal of evidence including the medical report of Dr Sterling. This, the Vice President does at paragraphs [91] and [92] which appear earlier in these reasons.[47]
• [126] There seems to be no complaint as to the accuracy of what was actually recorded by the Commission in paragraphs [91] and [92] but Ms Habibi Arehjan submits that Dr Sterling was not assessing all of her injuries.
• [127] As observed, the reference to Dr Sterling's report was accurate. It formed a legitimate part of a body of evidence from which the Vice President drew the conclusion that there was not an incapacity for work.[48]
• [128] No error is shown and ground 8 has no substance.

Ground 9 - The Commission "used an old case in which the decision was made based on another State Act"

• [129] This ground concerns all three appeals.
• [130] Ms Habibi Arehjan, in her first written submission on the appeals, said:

"[33]. The commissioner used an old case in which the decision was made based on another state ACT, which is not applicable in Queensland, and the ACT based on which the decision was made is not valid anymore.

[34]. Problems seen in cases mentioned by commissioner have been addressed in new ACT revision, the maximum payment limited to 5 years (Commonwealth v Muratore Jacobs J ) and the leave entitlement can be cashed out (McTiernan J in Thompson v Armstrong). There is no retroactive law to accept the old version of ACT.

[35]. Retrospectivity information is amended in Worker Compensation and Rehabilitation Act , which doesn't include NSW worker compensation Act 1926-1947

[36]. In the NSW Worker Compensation Act 1926-1947, the meaning of incapacity includes affecting the earning capacity of a worker or his opportunities for employment, which the appellant needed to resign as SunMetals didn't accept to change the job description, which wasn't for the appellant."

And, earlier in the submissions, quoted these cases:

"[14] McTiernan J in Thompson v Armstrong & Royse Proprietary:

This case raises questions under the Workers' Compensation Act 1926-1947 of New South Wales. They concern the liability of the respondent in respect of an injury received by the appellant whereby he was incapacitated for work during a period which comprised leave and holidays.

The case shows that on 18th December 1947 the appellant was disabled for work while in the respondent's service by an injury which arose out of and in the course of the employment and that the disablement did not cease until 30th December 1947.

It appears that the respondent paid compensation under the Act to the appellant for incapacity for work on the first and second days of the disablement only. The respondent denies that the injury resulted in incapacity for work within the meaning of the Act during any longer period than these two days.

The period beginning on 20th December and ending on 30th December coincided with annual leave and Christmas holidays taken by the respondent's employees in accordance with the Federal industrial award regulating the employment.

The employees of the respondent had a legal right by virtue of the award to leave and holidays with pay. It provided for the "annual close-down" of the plant to permit the employees to take such leave. The plant was closed down for this purpose from 20th December 1947 to 2nd January 1948.

Cardiff Corporation v. Hall 1 shows that the principle upon which compensation is given under a Workers' Compensation Act is based on the diminution of earning power by reason of the injury. In that case Buckley LJ. said that the Act makes the employer an insurer of capacity for work . This capacity is the worker's power to earn wages. The principle was again stated in Harwood v. Wyken Colliery Co.

By McTiernan, Fullagar and Kitto JJ. (Latham C.J. and Webb J. dissenting, and Williams J. expressing no opinion}, that the wages received by the worker during the period of his annual holidays, not having been received in respect of the injury and the consequent incapacity to earn, were not a payment, allowance or benefit which the worker received from the employer during the period of his incapacity to which the Commission was authorized by S. 13 of the Act to have regard.

The argument assumes that the appellant was bound to the respondent by his contract of service not to accept employment with any other employer while his contract of service subsisted but the statute clearly contemplates concurrent contracts of service, e.g. SS. 14 (a), 14 (b). The appellant was entitled if physically capable to accept employment elsewhere during the period of close-down. Even though he could not work for the respondent he could have worked for other employers if he had not been incapacitated.

For the respondent it was argued that where a contract of employment remained on foot SO that the relation of employer and employee still subsisted (as in the present case) during a period of physical incapacity and the employer in fact paid full wages (or presumably any amount greater than the amount claimable as compensation) the employee had no right to compensation. The right to compensation depended upon "total or partial incapacity for work' resulting from an injury to which the Act applied (s. 9) and it was contended that the incapacity for which the Act provided was an economic incapacity-an incapacity for earning wages.

A worker is entitled to receive compensation in accordance with the scale prescribed by the Act where total or partial incapacity for work results from the injury", S. 9. The Act makes the earnings of the worker the basis of the compensation. In the case of total or partial incapacity for work the employer is liable to pay the compensation in the form of a weekly payment during the incapacity. The Act says that in the case of partial incapacity the weekly payment shall not exceed the difference between the amount of the average weekly earnings of the worker before the injury and the average weekly amount he is earning or is able to earn in some suitable employment after the injury. The nature of the case of total incapacity precludes such a limitation on the weekly payment of compensation.

The personal injury sustained by the workman may incapacitate him from earning wages either by rendering him physically unfit to work or by preventing him from getting work by reason of some handicap which his injury has imposed upon him in the labour market notwithstanding that he is as physically fit for his work as he was before his accident." This passage clearly brings out the significance of the word "for" in the phrase incapacity for work". The loss for which the Act gives the worker compensation is "incapacity for work"

[15] Thompson v Armstrong & Royse Pty Ltd has been proceed under NSW worker compensation that is not apply in

[16] In Thompson v Armstrong & Royse Pty Ltd , employee paid 2 days for incapacity.

[17] The appellant in the case of Thompson v Armstrong & Royse Pty Ltd received the wage for the period that he was claiming, when he was incapacitated. His claimed was to received the wage on top of the wage he received for holidays and Christmas.

• By McTiernan, Fullagar and Kitto JJ. (Latham C.J. and Webb J. dissenting, and Williams J. expressing no opinion), that the wages received by the worker during the period of his annual holidays, not having been received in respect of the injury and the consequent incapacity to earn, were not a payment, allowance or benefit which the worker received from the employer during the period of his incapacity to which the Commission was authorized by S. 13 of the Act to have regard.

[18] In Commonwealth v Muratore Jacobs J (with whom Gibbs, Stephen and Aickin JJ agreed)

In 1966 the Delegate of the Commissioner for Employees' Compensation under the last-mentioned Act determined that the condition suffered by the respondent and causing incapacity for work since 1st June 1965 was not the result of injury by accident arising out of or in the course of his employment by the Commonwealth and was not the result of a disease due to the nature of the employment.

The respondent, Vittorio Muratore, was an employee of the Postmaster-General's Department when he was injured in the course of his employment at various times between 1956 and 1963. He received compensation under the Commonwealth Employees' Compensation Act 1930 when he was not working.

4. The respondent lodged an appeal to the District Court but on 28th November 1972 the appeal was withdrawn and dismissed. In the meantime on 30th August 1972 a further determination was made by the Delegate of the Commissioner (now under the Compensation (Commonwealth Government Employees) Act 1971). This the Commissioner was entitled to do by virtue ofs. 20 (4) (a) of the 1971 Act, the earlier determination of April 1971 made under the old Act being deemed to be a determination under the 1971 Act (s. 107 (2)). The determination was as follows:

"(1) The evidence before me, including specialist medical opinion, indicates that since 24 June 1971 the said Vittorio Muratore has been able to earn, in some suitable employment or business, a weekly amount which is not less than his weekly pay at the date of injury as since varied. (2) NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Employees) Acts 1971 including sections 4 (2), 104 (15) and 107 (2) of that Act, and further to the determinations previously made, I hereby determine: -

since 24 June 1971 the said Vittorio Muratore has been able to earn in some suitable employment or business a weekly amount not less than his average weekly earnings before the injury and he is therefore not entitled to compensation under section 46 (2) of the said Act from and including 24 June 1971." (at p299)

[19] Queensland WorkCover accepted liability to pay compensation to the appellant ( Nadia Habibi Arehjan), under

Workers' Compensation and Rehabilitation Act 2003, This Act establishes a workers' compensation scheme for Queensland."

• [131] Mr McMillan, for the Regulator, submitted:

"40) This ground is misconceived. The Commission properly referred at paragraphs [8] and [9] to relevant authority as applied in Queensland by this Court."

"[25] There is no retroactive law to accept the old version of ACT, the referred cases were irrelevant to this case, the referred parts have been recorded in the appellant first submission.

[26] The respondent didn't provide evidence for relativity between the applied case and the presence case.

[27] The applied law shall be relevant to the case."

• [133] Beginning at paragraph [4] of the judgment, the Vice President directed himself as to the applicable law he should apply to the case. After referring to various provisions of the WCR Act, he turned to the notion of incapacity and observed:

"[8] In Colbran v Workers' Compensation Board of Queensland the Industrial Court endorsed the following passage from the decision of McTiernan J in Thompson v Armstrong & Royse Pty Ltd namely:

The phrase [incapacity for work] does not merely mean inability to work for the employer in whose service the worker was injured. An injury results in incapacity for work according to the intention of the Act, when it takes away or diminishes the power of the worker to earn wages in some suitable employment.

[9] In Arnotts Snack Products Pty Ltd v Yacob, with reference to Thompson v Armstrong & Royse Pty Ltd, the test was expressed in this way:

Fullagar J said (81 CLR at 613): "A man is totally incapacitated for work when he is, by reason of his injury, physically unable to work. The words in their natural and primary sense mean that. When their meaning has been expounded by reference to inability to earn wages, the purpose has been to make the meaning more specific, and the result has been to extend rather than restrict the meaning".

The same point was made, though less directly, by Kitto J who remarked (81 CLR at 621): "Loss of wages is in most cases a result of, but it does not itself constitute, the relevant economic fact. That fact is the inability, or the reduced ability, by reason of a physical deficiency, to sell work for wages". See also McTiernan J (81 CLR at 602-3).

The judgments in Thompson were discussed by Jacobs J (with whom Gibbs, Stephen and Aickin JJ agreed) in Commonwealth v Muratore [1978] HCA 47; (1978) 22 ALR 176 at 179-80; [1978] HCA 47; 141 CLR 296 at 300-1, which related to the Compensation (Commonwealth Government Employees) Act 1971 (Cth). His Honour said (at (ALR) 179; (CLR) 300): 'It has always been recognized that 'incapacity for work', those words being taken to refer to physical incapacity, is only relevant where it produces an economic incapacity.' He was speaking, as the passage at the foot of p 301 makes plain, of compensable incapacity for work, so that the employee's incapacity is:'... measured by the extent that the amount per week that he is able to earn in some suitable employment or business is less than his average weekly earnings before his injury."

• [134] The notion of incapacity is one that has been common to workers' compensation legislation in Queensland and in other jurisdictions for decades. The concept is not defined in the WCR Act. While ultimately it is the provisions of the WCR Act which must be construed and applied, resort to cases which have considered such a fundamental concept as incapacity in other statutes is conventional.
• [135] The Vice President's reliance upon Arnotts Snack Products Pty Ltd v Yacob[49] and Thompson v Armstrong and Royse Pty Ltd,[50] both decisions of the High Court of Australia, was sound. Arnotts was followed by the High Court in Steggles Pty Ltd v Vandenberg,[51] and Asioty v Canberra Abattoir Pty Ltd[52] and both Arnotts and Thompson were followed in Scott v Sun Alliance Ltd.[53]
• [136] Ms Habibi Arehjan does not suggest an alternative construction of the relevant sections of the WCR Act.
• [137] Ground 9 is dismissed.

Ground 10 - The Commission "went beyond the expert evidence ... and relied on a surgical treatment plan that wasn't part of the appeal"

• [138] This ground relates to appeals to the Commission files WC2019/157 and WC/2020/36.
• [139] In her first written submission, Ms Habibi Arehjan submitted:

"[38]. The commissioner went beyond the expert evidence and their testimony and relied on a surgical treatment requirement that wasn't part of the appeal. The appellant clarified that the required treatment is pain management, physiotherapy, and chiropractic. The appellant provided the evidence and exhibited the document in the hearing, showing her incapability to move her neck had improved.

Ms. Habibi Arehjan experienced the dizziness, made her breath to be shortened and repeatedly she had the cough which caused the hearing to be adjourned twice, which shows she is still suffering from impairments."[54]

• [140] Mr McMillan for the Regulator submitted:

"40) Ms Habibi Arehjan contends that the Commission "went beyond the expert evidence ... and relied on a surgical treatment plan that wasn't part of the appeal". This appears to relate to her contention in WC/2019/157 and WC/2020/36 that she was entitled to ongoing compensation because her injuries required further treatment by way of pain management. There was no "surgical treatment plan" referred to in the evidence before the Commission. Rather, it appears that this submission is directed to impugning the opinions of the expert witnesses who were surgeons, Drs Sterling, Allen, Journeaux, Rimmington, Ryan and Bryant. However, Ms Habibi Arehjan did not adduce any expert evidence to support her contention regarding pain management or establish any basis upon which the Commission ought to have rejected the evidence of the experts called by the Regulator.

1. Therefore, there was no error by the Commission's treatment of the expert evidence or in the conclusions reached in reliance on that evidence at paragraphs [77] to [104] of the reasons."

• [141] Ms Habibi Arehjan's reply submissions said:

"[28] Dr. Bryant, in oral testimony, admitted that the treatment strategy for whiplash injury people is rehabilitation physicians and occupational physicians jobs..

[29] The progress reports have been submitted as evidence that shows the improvement.

Has been having treatment with a Chiro and a Physio In WA where now working, helping (L) side of neck a lot, still sore (R) upper neck with reduced movement to that side. Lower back mostly ok only feels coccyx pain if sitting on hard or uncomfortable chair. (L) knee still unable to kneel on it or run. Awaiting trial next week with Workcover. No pool near new work in WA to continue hydro exs.

a standard surgical consultation, and rehabilitation physicians and - and occupational physicians are far better qualified than myself to perform those sorts of assessments and - and - and - and enroll in - in - in that sort of treatment strategy. As a surgeon, I - I need to exclude surgically correctable pathologies, and often with whiplash injuries, almost invariably with whiplash injuries, there is no surgically treatable pathology, and so, depending on the patient's reported on going symptoms, alternative arrangements need to be made for ongoing treatment, if - if it's indicated.

[31] While Dr. Bryant, admitted that the rehabilitation physicians are far better than him for whiplash, and He accepted that Dr. Hess is a reasonable treatment. The commissioner went beyond the expert evidence, and in his decision, he stated that:

The Appellant bore the onus of proof to show that the Regulator had erred. In short, the only question for determination by the Commission is whether the Appellant has shown that she was entitled to weekly payments and the payment of medical treatment, hospitalisation and other expenses.

[32] Chapter 3, Part 8A, ss 144A and 144B of the WCR Act covers any type of treatment, including pain management, chiropractors, and physiotherapy, which were part of the treatment plan for whiplash injuries, refer to EPC in P [33].

[33] Two experts gave evidence in the hearing, Debbie Dale and Ms. Corena Caltabiano, who both treated the appellant's neck injury between May 2018 and October 2021 under the Dr. Hess EPC Program. This continued in Karratha under other physiotherapists."

• [142] Ms Habibi Arehjan does not identify with precision the "surgical treatment requirement" to which she refers in her first submissions filed in the appeal. Her point appears to be that:

(a) she has been receiving treatment;

(b) her ability to move her neck has improved; therefore

(c) the treatment was successful and should be the subject of payment by WorkCover; and

(d) because she was dizzy and short of breath on the hearing before the Commission it follows she is still suffering and, therefore, ought to receive ongoing payments.

• [143] In her submission, Ms Habibi Arehjan relies on a clinical note prepared by Ms Deb Dale who is one of her treating physiotherapist.

Has been having treatment with a Chiro and a Physio in WA where now working, helping (L) side of neck a lot, still sore (R) upper neck with reduced movement to that side. Lower back mostly ok only feels coccyx pain if sitting on hard or uncomfortable chair. (L) knee still unable to kneel on it or run. Awaiting trial next week with Workcover. No pool near new work in WA to continue hydro exs."

• [144] It can be seen that the comments in Ms Dale's note are under a heading "subjective". Those comments appear to be a recitation of what Ms Habibi Arehjan has said. There is another part of the note which is headed "Objective" which are, presumably, Ms Dale's observations recorded upon examination of Ms Habibi Arehjan. However, even those notes make reference to "still pain", which must be an observation made on the basis of reporting by Ms Habibi Arehjan.
• [145] Ms Habibi Arehjan's difficulty is that there is a large body of evidence to the effect that there are no ongoing effects of the injuries.[55] This evidence came from Dr Rimmington, Dr Allen, Dr Sterling, Dr Piotrowska-Hess, Dr Journeaux and Dr Bryant. That evidence was all analysed by the Vice President and was accepted.[56]
• [146] There is no substance to ground 10.

Ground 11 - The Commission didn't "consider the exhibits and hearing materials" and didn't comply with the Commission's code of conduct for members

• [147] Ms Habibi Arehjan, in her first written submission, submitted:

"[39]. The commissioner didn't consider exhibits and hearing materials, CT scan of the S5 fracture has been done in Brisbane not in Tehran. The commissioner didn't comply with section 2 of the Industrial Court OF Queensland, Queensland Industrial Relations Commission Code of Conduct for members of the commission."

"[51]. The commissioner didn't consider exhibits and hearing materials, used them selectively."

• [148] Mr McMillan, for the Regulator, submitted:

"43) There is no basis to the allegation that the Commission "didn't consider the exhibits and hearing materials" or "used them selectively". The Commission was not required, in its reasons, to refer to every exhibit or every witness who gave oral evidence. However, "the essential ground or grounds upon which the decision rests should be articulated". The reasons clearly articulate the essential grounds for the Commission's decision in each appeal and the critical evidence relied on in reaching those decisions.

1. It is also alleged that the Commission didn't comply with section 2 of the Commission's Code of Conduct for Members, which sets out the duties of members during hearings, relevantly to "listen to evidence" and "deal with each matter on its merits, in accordance with the relevant provisions of the applicable legislation." There is no proper basis to suggest the Vice President failed in his duty to do those things during the hearing before the Commission on 8 to 11 November 2021. No error is demonstrated."

• [149] Ms Habibi Arehjan's reply submissions said:

"[35] The evidence and oral testimonies are available, refer to previous Paragraphs.

[36] An industrial tribunal hearing is a formal process where a tribunal panel reviews the facts of a case and makes a binding decision on a matter. It is a type of law court that makes judgments on disagreements between companies and their workers. The hearing is more formal than conciliation conferences and involves the tribunal receiving arguments and evidence from both parties before making a decision. The commissioner ignored the required treatment, which was confirmed by two experts and Dr. Bryant."[57]

• [150] Ms Habibi Arehjan's first submission on this ground refers to the statement in the judgement to a CT scan being taken in Tehran when it was in fact done in Brisbane through Dr Bryant. This issue has already been dealt with.[58]
• [151] Contrary to Ms Habibi Arehjan's submissions, the Vice President obviously has considered the exhibits and the evidence before him. This is evidenced by the detailed judgment produced.
• [152] Ms Habibi Arehjan's real complaint is that the Vice President has not referred to every piece of evidence which was before him. Ground 11 is really a complaint about the adequacy of reasons.
• [153] It is well established that reasons must be given and the failure to give sufficient reasons constitutes an error of law.[59] In Drew v Makita (Australia) Pty Ltd,[60] Muir JA, following Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd,[61] considered that the detail to which a judge must descend in exposing their reasoning depends on the nature of the issues for determination and the function to be served by the giving of reasons.[62] There have been various judicial statements as to when reasons will or will not be inadequate.[63]
• [154] In Beale v Government Insurance Office of New South Wales,[64] Meagher JA identified "fundamental elements" of a statement of reasons which it is useful to consider. They are:

(a) the need to refer to relevant evidence;

(b) to set out material findings of fact and any conclusions or ultimate findings reached; and

(c) the process of reasoning by which the law is applied to the facts found should be articulated.[65]

• [155] As Muir JA observed in Drew v Makita, the fundamental elements identified in Beale are not rigid rules or principles but are considerations which may assist in the assessment of the adequacy of reasons.[66]
• [156] In Beale, Meagher JA, when considering the first of the three fundamental elements observed;

"there is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and is not referred to by the trial judge, an appellate Court may infer that the trail judge overlooked the evidence or failed to give consideration to it."[67]

As to the second fundamental element, his Honour observed:

"...where findings of fact are not referred to, an appellate Court may infer that the trial judge considered that finding to be immaterial".

In relation to the second and third fundamental elements, his Honour observed:

"it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and are of varying significance."

• [157] Here, Ms Habibi Arehjan was involved in a serious accident and suffered significant injuries which, on any assessment, required treatment over a significant period. The central question for determination by the Commission was as to when the payments of compensation ought to stop. That was always an issue which would primarily, if not completely, be determined upon consideration of the medical evidence.
• [158] His Honour has summarised the chronology of events including treatment received by Ms Habibi Arehjan after the accident. That is done under the heading Background to Appeals".[68] The Vice President then considered Ms Habibi Arehjan's employment history[69] before turning to the consideration of each of the appeals by reference to the evidence which the Vice President judged to be significant and determinative.[70] There is no inadequacy in the expression of the reasons.
• [159] The other complaint in ground 11 is as to compliance by the Vice President with s 2 of the Commission Code of Conduct for Members. It is unnecessary to delve into what could be difficult questions as to the interrelationship between the Code of Conduct and the legal discharge of the obligation to decide the case.
• [160] Ms Habibi Arehjan does not descend to particulars as to how s 2 of the Code has been breached. In my view, there is no substance to the complaint because it is evident from the reasons, as I have already explained, that the issues before the Commission have been sufficiently explored and the reasons for the dismissal of the appeals have been sufficiently explained.
• [161] There is no substance to ground 11.

Ground 12 - The Commission "ignored" the requirements of s 144 of the WCR Act

• [162] This ground concerns appeals to the Commission files WC/2019/157 and WC/2020/36.
• [163] In her first written submission Ms Habibi Arehjan said:

"[42]. The commissioner ignored the Workers' Compensation and Rehabilitation Act 2003, section 144 requirement, that states

For the day the worker stops work because of the injury, the worker is entitled to compensation under this part for the injury. [This includes partial and total incapacity]"

"45) Section 144 of the Act relevantly provides that "for the day the worker stops work because of the injury, the worker is entitled to compensation under this part for the injury." There is no dispute that Ms Habibi Arehjan was entitled to compensation on the day of her injuries. The section has no relevant application to these appeals."

• [165] Ms Habibi Arehjan's submissions in reply were:

"[37] The appellant was eligible for compensation for WC157 up to 4th October 2019. For a specific injury, the compensation cannot stop and continue. The respondent didn't provide the relevant law to state that ss144 can stop and continue after a while. An injury cannot heal and can get injured again. If the treatment isn't provided, the condition can get worse, but the healed injury cannot return to the previous condition."

• [166] It is difficult to discern the real complaint which is sought to be articulated by this ground. Section 144 is in Part 8 of Chapter 3 of the WCR Act. Part 7 concerns "Payment of compensation". Part 8 concerns "Compensation for day of injury" and Part 8A, which contains ss 144A and 144B concerns "When entitlement to compensation stops".
• [167] Sections 142, 143 and 144, which are the only three sections in Part 8 of Chapter 3 provide:

This part applies only if a worker stops work because of an injury and under the industrial instrument or contract of employment applying to the worker -

(a) the worker is not entitled to be paid for the whole of the day on which the worker stops work; or

(b) no amount is specified as being payable to the worker for the whole of the day on which the worker stops work; or

(c) the amount specified as being payable to the worker for the whole of the day on which the worker stops work is less than the amount payable as compensation under this part.

compensation under this part means an amount equal to the amount the worker would have received from the worker's employment for the day on which the worker stops work because of an injury if the worker were at work and the injury had not been sustained.

144 When employer must pay worker for day of injury

(1) For the day the worker stops work because of the injury, the worker is entitled to compensation under this part for the injury.

(1A) Subsection (1) applies despite anything in an industrial instrument or contract of employment applying to the worker.

(2) Despite section 109, the employer must pay the compensation.

(3) The amount of compensation under this part that is payable is in addition to any other compensation payable to the worker under this Act.

(4) The day for which compensation under this part is payable is not to be included in the excess period under section 66."

• [168] Part 8 is designed to ensure that, where, by a worker's terms of employment, the worker would not be entitled to be paid for the whole of the day on which they were injured and stopped work, compensation will be payable in a way enabling the worker to recover the full day's pay notwithstanding the terms of employment.
• [169] As already observed, there is no doubt here that Ms Habibi Arehjan was injured in the course of her employment, and was entitled to compensation. The question before the Commission was as to when the payment of compensation ceased. Part 8 of Chapter 3 is not relevant to that issue, and there is no substance in ground 12.

Ground 13 - The Commission "went beyond" the evidence of Dr Ryan

• [170] This ground concerns the appeal in Commission file WC/2020/37.
• [171] Ms Habibi Arehjan, in her first written submissions in this appeal, submitted:

"[45]. The Commissioner went beyond of Dr Ryan confirmation that the statement in report dated 30th of August 2019, doesn't mean that without symptoms and previous employment in full capacity. Also Dr. Ryan confirmed that the report dated 30th of August 2019, doesn't include the finding in April 2020 [intersection Syndrome]

[46]. In all time, the appellant was under light duty, as tolerated by patient, Just for wrist injury, it wasn't included whiplash injury. The incident in Arcadis was raise because of severe headache and dizziness in the result of whiplash injury.

[47]. BRS change the starting date from December 2019 to 6th January 2020, in request of Ms. Habibi Arehjan, because of her hand situation.

[48]. From April 2020 to September 2020, because of COVID 19, the appellant didn't work normally in the work environment.

[49]. 4th June 2020, Dr. Ryan Confirmed that incapacity due to work related injury didn't stopped and Ms. Habibi Arehjan was under suitable duty since August 2019."

• [172] Mr McMillan submitted for the Regulator:

"46) Similar to Ground 2 and Ground 10, this ground alleges that the Commission "went beyond" the evidence of Dr Ryan. The Commission dealt with Dr Ryan's evidence at paragraphs [19], [23], [55]-[56], [95] and [108]-[113]. The Commission's conclusion at paragraph [114] is entirely consistent with and supported by the evidence referred to earlier in the reasons. Ms Habibi Arehjan refers to exhibit 61, a work capacity certificate issued by Dr Ryan on 20 June 2020, to contend that Dr Ryan confirmed in his evidence that incapacity had not stopped at that date. However, after some confusion in oral evidence, Dr Ryan clarified that his opinion that Ms Habibi Arehjan had been fit for suitable duties since August 2019 had not changed."

• [173] In her written submissions in reply, Ms Habibi Arehjan said:

"[39] The appellant stands by her submissions in March 2020 and October 2023."

• [174] Ms Habibi Arehjan's reply submissions refer to her submissions of March 2020 and October 2023. I suspect that the reference to the submissions of March 2020 should be a reference to submissions filed in the Commission on 17 March 2022. The submissions of October 2023 are Ms Habibi Arehjan's primary written submissions filed in the appeal. The relevant parts have been identified and appear above.
• [175] No attempt has been made by Ms Habibi Arehjan to identify those parts of the submissions of March 2022 which she says I should consider in the course of dealing with ground 13.
• [176] Ms Habibi Arehjan has carriage of the appeal. I have attempted to consider every submission that she has made. However, the written submission of 17 March 2022 is 60 pages in length containing 163 paragraphs. I do not intend to sift through the document in the hope that I can identify something which Ms Habibi Arehjan might rely upon in relation to ground 13 of the appeal.
• [177] I shall have regard to her first submissions filed in the appeal and, of course, the documents and evidence to which she refers in that submission.
• [178] As can be seen from paragraph [49] of Ms Habibi Arehjan's first written submission, reliance is had by her upon a document dated 4 June 2020 which became Exhibit 61. This document was produced by WorkCover with the intention that Dr Ryan would complete some of the proforma parts and return it to WorkCover. That is what occurred.
• [179] The document posed two questions for Dr Ryan. The first was: "1. Has the incapacity due to the work related injuries stopped? (please note that capacity means that the injured worker can return to work, not necessarily their pre-injury work.)." Dr Ryan ticked the box "No". Then appeared another question, namely: "If it has not stopped, when do you believe that the incapacity because of the work related injury will stop?" To that Dr Ryan wrote "7/20", meaning July 2020.
• [180] Another question on the form was as to whether the work related injury would improve from further medical or surgical treatment. Dr Ryan answered that question "Yes".
• [181] From that document, Ms Habibi Arehjan maintains that in the opinion of Dr Ryan she was incapacitated to 4 June 2020 and would continue to be incapacitated until July 2020.
• [182] Dr Ryan gave evidence to the Commission on the third day of the hearing. He was called by the Regulator and cross-examined by Ms Habibi Arehjan.
• [183] With respect to Ms Habibi Arehjan, she may not have appreciated the distinction between the injury persisting, and the injury being incapacitating in the legal sense. In re-examination this exchange occurred:

"MS BLATTMAN: Yes, just a few things, Doctor. I won't keep you long. You were just taken to exhibit 61 on page 214, and that was the position as at the 4th of June 2020.

MS BLATTMAN: So you indicated that the incapacity hadn't stopped, but it's the case, isn't it, that at that time, you considered Ms Habibi fit for suitable duties?---Correct.

And that had been the case since in or about August 2019?---Yes."

• [184] Although Exhibit 61 could have been clearer, the only sensible interpretation of Dr Ryan's evidence is that while the injury continued to have effect as late as June and July 2020, Ms Habibi Arehjan was not incapacitated for employment as of, and from, 16 August 2019.
• [185] The Vice President made this finding:

"[114] In respect of WC/2020/37 based on the expert medical evidence of Dr Ryan, which I accept, together with the Appellant's employment history as set out above, I find that the Appellant was not relevantly incapacitated for employment on and from 16 August 2019."

• [186] That finding was clearly correct and there is no substance in ground 13.

• [187] All grounds of appeal have failed so the appeal must be dismissed.
• [188] No submissions have been made in relation to costs. It is appropriate that directions are made for the exchange of written submissions on costs.
• [189] The orders are:
  1. The appeal is dismissed.
  2. The respondent file and serve any written submissions and affidavits in support on the question of costs by 4.00 pm on 11 November 2025.
  3. The appellant file and serve submissions and any affidavits in support on the question of costs by 4.00 pm on 25 November 2025.
  4. Either party may by 4.00 pm on 2 December 2025 give notice to the other and to the Registrar of an intention to make oral submissions on costs and the Registrar shall then allocate a date for hearing the submissions.

In the absence of notice being given pursuant to order 4, the question of costs will be determined on the basis of any written submissions received and without further oral submissions.

[1] Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230.

[3] Turay v Workers' Compensation Regulator [2023] ICQ 13; and see generally Workers' Compensation Regulator v Glass [2020] QCA 133; (2020) 4 QR 693.

[4] Industrial Relations Act 2016, ss 557 and 565.

[5] [2003] HCA 22; (2003) 214 CLR 118.

[6] At [25]; and followed in Lee v Lee [2019] HCA 28; (2019) 266 CLR 129.

[7] [2019] HCA 28; (2019) 266 CLR 129.

[8] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55].

[9] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492; and see R v Thrupp & Ors [2024] QCA 134 and the authorities analysed therein at [123].

[10] Excerpts of Ms Habibi Arehjan's written submissions have been faithfully reproduced throughout this judgment, notwithstanding the appearance of obvious errors.

[11] Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230.

[12] Exhibit 49; and Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230 at [41].

[14] Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230 at [45]- [48] and [79]-[85].

[18] WC/2019/157 at paragraphs [75]-[85]; WC/2020/36 at paragraphs [86]-[104]; WC/2020/37 at paragraphs [105]-[114].

[19] Paragraph [69] of Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230 appears at paragraph [73] of these reasons.

[20] Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230, commencing at paragraph [10].

[29] T 1-83-T1-98 and; T1-115 to T1-145.

[32] Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230 at [77] and [79].

[33] Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230.

[34] Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230 at [27].

[44] Paragraphs [15], [21], [25], [28], [29], [32], [37], [44], [52], [91] and [92].

[45] Paragraphs [15], [21], [25], [28], [29], [32], [37], [44], [52].

[47] At paragraph [120] of these reasons.

[49] [1985] HCA 2; (1985) 155 CLR 171.

[50] [1950] HCA 46; (1950) 81 CLR 585.

[51] [1987] HCA 35; (1987) 163 CLR 321.

[52] (1989) 167 CLR 533.

[53] [1993] HCA 46; (1993) 178 CLR 1.

[54] Paragraph [38] of those submissions finishes with a quote of a passage from Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 which doesn't seem relevant to what has been identified as ground 10.

[56] Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230 at [77] - [104].

[57] Paragraph [34] of the reply submissions is not reproduced as it is just an observation as to the form of the Regulator's submission.

[58] See paragraphs [32]-[44] of these reasons.

[59] Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219 at [57].

[60] [2009] QCA 66; [2009] 2 Qd R 219.

[61] [1983] 3 NSWLR 378 at 386.

[62] Drew v Makita (Australia) Pty Ltd at [59].

[63] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; and Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377.

[64] (1997) 48 NSWLR 430.

[66] Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219 at [64].

[68] Habibi Arehjan v Workers' Compensation Regulator (No 2) [2023] QIRC 230 at [10] - [56].

[70] WC/2019/157 at [75]-[85]; WC/2020/36 at [86]-[104]; and WC/2020/37 at [105]-[114].