Winkler v Orthopaedic Assessment Tribunal & Anor [2018] QSC 302

G R Cooper, Crown Solicitor for the first respondent

[1] The applicant seeks a statutory order of review of the decision of the Orthopaedic Assessment Tribunal of 20 June 2018 regarding his lower back injury.

[2] The applicant allegedly suffered a lower back injury while lifting an axle at work. He already had some degenerative changes to his spine. He contends that, at the least, the injury he suffered in the workplace constituted an injury to him as a worker on the basis it was an aggravation of his degenerative condition within the meaning of ss 32(1)(a) and 32(3)(b)(iii) of the Workers Compensation and Rehabilitation Act 2003 (Qld) ("WCRA"). Those sections provide:

(1) An injury is personal injury arising out of, or in the course of, employment if -

(a) for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury ...

(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation - ...

(iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation ..." (emphasis added)

[3] Workcover Queensland ("Workcover") initially rejected an application for compensation in respect of the injury and a review was sought. On 10 May 2018 the Review Unit of the Office of Industrial Relations set aside Workcover's decision and returned the matter to Workcover, directing it, pursuant to s 500(1)(a) WCRA, to refer the matter to the Medical Assessment Tribunal to assess whether the matters alleged in the application for compensation constituted an injury and, if so, the nature of the injury. The matter was duly referred to the Medical Assessment Tribunal which convened as the Orthopaedic Assessment Tribunal on 20 June 2018.

[4] The Tribunal determined (adopting in its determination the language of s 501(2)(a) WCRA) that:

"[T]he matters alleged in the application for compensation do not constitute an injury to the worker."

[5] The Tribunal's reasons for its decision recorded its agreement with an opinion of Orthopaedic Surgeon Dr Shepherd that the applicant's current symptoms are due to a constitutional condition and cannot be related to his work activities. The Tribunal concluded:

"The tribunal ... notes that there is no objective evidence of any pathology that could be related to a workplace incident but all examination objective findings point to a consequence of the pre-existing multi-level disc degeneration with facet arthropathy that has been present in the lumbar spine for many years.

It is the tribunal's opinion that the symptoms that are present are a consequence of the underlying and pre-existing degenerative processes in the lumbar spine and not of any workplace incident or activity."

[6] Their reasons did not refer to an opinion before it from Orthopaedic Surgeon Dr Gillett that the work-related event either caused the lower back injury or aggravated a pre-existing pathological process causing it to become symptomatic. The reasons did not expose that any specific consideration was given to whether the applicant's lower back strain constituted an injury by reason of it being an aggravation of his degenerative condition.

[7] The decision is one to which the Judicial Review Act 1991 (Qld) ("JRA") relates. The applicant is plainly a person aggrieved by that decision and thus eligible to make the present application pursuant to s 20(1) JRA. Three of the grounds listed in s 20(2) of the JRA have been enlivened by the decision, namely:

"(a) that a breach of the rules of natural justice happened in relation to the making of the decision; ...

(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;

(f) that the decision involved an error of law (whether or not the error appears on the record of the decision) ..."

[8] The Tribunal's core error is its apparent failure to consider, let alone decide, whether the applicant's lumbar back strain was an aggravation of the applicant's degenerative condition, and if so, the nature of the aggravation ("the issue"). Its reasons neither show that it considered the issue nor show what consideration it gave to the opinion of Dr Gillett, which opinion was directly relevant to the issue.

[9] If the Tribunal did consider the issue and Dr Gillett's opinion, then it erred in law in failing to provide adequate reasons. If it did not, then it likely erred in law as to the meaning of injury under WCRA and in any event it improperly exercised its power by failing to take into account a relevant consideration.

[10] It follows that the application should be granted and the matter remitted to the Orthopaedic Assessment Tribunal. It has been properly conceded the Tribunal should be differently constituted.

[11] The parties are agreed as to the appropriate form of orders , including as to costs.

[12] My orders are:

1. Pursuant to s 30(1)(a) Judicial Review Act 1991 ("JRA"), the First Respondents' decision dated 20 June 2018, made pursuant to s 501(2)(a) Workers Compensation Rehabilitation Act 2003 ("WCRA"), which determine that the matters alleged in the applicant's application for compensation under WCRA dated 12 December 2017 do not constitute an injury to him as a worker, is set aside.
2. Pursuant to s 30(1)(b) JRA, the matter is remitted to a differently constituted Orthopaedic Assessment Tribunal to determine whether the matters alleged in the applicant's application for compensation constitute an injury to him as a worker and, if so, the nature of the injury.
3. The orders made, and the directions given at the directions hearing of this proceeding on 7 September 2018 are rescinded.
4. The respondents are to pay the applicant's costs of and incidental to this proceeding fixed in the sum of $5,000, within 28 days of the date of this order.