QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Workers' Compensation Regulator v Simounds [2023] QIRC 245

PARTIES:	
	Workers’ Compensation Regulator
(Applicant)

v

Simounds, Kevin Maurice
(Respondent)
	
CASE NO:
	WC/2022/28
	
PROCEEDING:
	Application in existing proceedings

DELIVERED ON:
	25 August 2023
	
HEARING DATE: 
	7 July 2023
	
MEMBER:

HEARD AT:	Pidgeon IC

Brisbane

ORDERS:
	1.	Pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 556(2), Mr Simounds is to submit to an independent medical examination to be conducted by Dr Leigh Atkinson, Neurosurgeon on a date to be fixed.

2.	That the Applicant pay all specialist fees relating to the independent medical examination. 

3.	That the Applicant pay all reasonable transport and/or accommodation costs necessary for Mr Simounds to attend the medical examination.

4.	That upon receipt of the medical report by the Applicant, a copy will be provided to Mr Simounds through his representative.
	
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – Application in existing proceedings for an order that the Respondent submit to a medical examination – whether the Commission should exercise its discretion to make an order pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 556
	
LEGISLATION:
	Workers' Compensation and Rehabilitation Act 2003 (Qld) s 556
	
CASES:	Atlas Marine International Pty Ltd v Q-COMP [2013] QIRC 61

Bridges Health & Community Care Ltd v Workers’ Compensation Regulator [2020] QIRC 9

Carpenter Investments (Qld) Pty Ltd t/a Lockyer Car & Dog Wash v Simon Blackwood [2014] QIRC 162

Cowen v Bunnings Group Limited [2014] QSC 301

Gray v Hopcroft & Anor [2000] QCA 144

Jetcrete Oz Pty Ltd v Blackwood (Workers’ Compensation Regulator) & Anor [2013] QIRC 186

State of Queensland (Acting through Department of Corrective Services) v Saville & Anor [2006] ICQ	

APPEARANCES:	
Mr P. O’Neill of Counsel directly instructed by Ms P. Lock of the Applicant

Mr J. A. Greggery KC instructed by Ms E. Cox of Organic Legal for the Respondent	

Reasons for Decision
	
	Introduction 

[2]	On 13 April 2023, the Workers’ Compensation Regulator (‘the Applicant’) filed an application in existing proceedings seeking an order pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 556(2) (‘the Act’), that Mr Kevin Maurice Simounds (‘the Respondent’) submit to an independent medical examination by a neurosurgeon, namely Dr Leigh Atkinson.

[3]	In its application, the Applicant outlines the following details of the decision sought:

1.	An Order pursuant to section 556(2) of the Workers’ Compensation and Rehabilitation Act 2003 that the respondent to this application submit to an independent medical examination to be conducted either [sic] by Dr Leigh Atkinson, Neurosurgeon on a date to be fixed.

2.	That the applicant pay all specialist’s fees relating to the independent medical examination and report.

3.	That the applicant pay all reasonable transport and/or accommodation costs necessary for the respondent to this application to attend the medical examination.

4.	That upon receipt of the medical report by the applicant a copy will be provided to the respondent.

5.	That the respondent pay the applicant’s costs of and incidental to the application.

6.	Such further or other Order as the Commission deems necessary.

Statutory Framework

[4]	The Act relevantly provides:

556	Additional medical evidence

(1)	This section applies if—
(a)	the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or
(b)	the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal.

(2)	The appeal body may, at any time before or after the start of the hearing, order the claimant or worker to submit to a personal examination by 1 or more specified registered persons.

(3)	The appeal body may also, as the appeal body considers appropriate, make an order about—
(a)	the way, time and place of the examination; and
(b)	costs of the application for the order and of the examination.

(4)	An opinion formed on the examination must be given to the respondent and the respondent must make the opinion available to the appellant.

(5)	Subsection (6) applies if the claimant or worker—
(a)	fails, without reasonable excuse, to attend for the examination at the time and place ordered by the appeal body; or
(b)	having attended, refuses to be examined by a registered person; or
(c)	obstructs, or attempts to obstruct, the examination.

(6)	Any entitlement the claimant or worker may have to compensation is suspended until the claimant or worker undergoes the examination.

[5]	The question before me is therefore whether this section applies to Mr Simounds’ appeal, and if so, whether I should exercise the discretion to make the order provided for in s 556(2).

[6]	For the reasons which follow, I have determined to grant the application and make the orders set out below at [81].

[7]	The parties filed written submissions in preparation for this matter and subsequently made oral submissions at a hearing on 7 July 2023. In considering this application in existing proceedings, I have had regard to all submissions made by the parties, Mr Simounds’ Appeal Notice, and the parties’ respective Statements of Facts and Contentions.

Factual Background

[8]	Mr Simounds was employed by Centurion Transport Pty Ltd (‘Centurion’) as a heavy truck driver and the period relevant to his appeal is between 1 March 2021 and 5 March 2021. He lodged an application for compensation with WorkCover on 7 May 2021 alleging that he sustained a personal injury described as a cognitive deficit due to the requirements of his role during the specified period.

[9]	Mr Simounds received a decision of the review unit on 28 January 2022 in which it confirmed the decision of WorkCover to reject the claim. It is that decision which Mr Simounds appeals in the substantive matter before the Commission. 

Mr Simounds’ Injury 

[10]	The Applicant in this proceeding points to its Statement of Facts and Contentions where it sets out the medical evidence it says was available at the time of Mr Simounds’ alleged injury:

61. 	On 9 March 2021 the Appellant’s salt levels were noted to be okay. 

62. 	The objective testing and scans undertaken of the Appellant including a CT scan of the spine, Xray of the chest, CT scan of the head, AF Spine Lumbar Puncture, MRI of the Brain as summarised in the Appellant’s statement did not identify the Appellant as having sustained an injury, or the cause of the Appellant’s alleged symptoms.

[11]	The Applicant also draws upon the following paragraphs of its Statement of Facts and Contentions regarding the Respondent’s alleged injury:

64. 	The Respondent contends that the medical evidence is not conclusive and the objective scans and testing that have been undertaken fail to confirm that the Appellant has sustained an injury, the nature of the injury, or a cause for the injury.

65. 	The Respondent contends that the Commission could not be satisfied on the balance of probabilities that the Appellant had met his burden of proof of establishing that he has sustained a personal injury for the purposes of section 32 of the Act. 

66. 	If the Appellant has sustained an injury the Respondent contends that the injury does not arise out of, or in the course of the Appellant’s employment because: 

(a)	It has been caused by something that the Appellant has ingested; or

(b)	It has been caused by another medical condition that the Appellant suffers; or 

(c) 	It has been caused by the Appellant over-hydrating.

67. 	The Respondent also contends that the Appellant’s employment has not been a significant contributing factor to the Appellant’s injury. 

[12]	The Applicant says that it prepared its Statement of Facts and Contentions ‘well in advance’ of receiving Dr Richard White’s medical report dated 28 November 2022, which the Applicant says it received on 22 December 2022. For context, Dr White is a Consultant Neurologist who conducted a medicolegal examination of Mr Simounds on 10 November 2022. 

[13]	Mr Simounds’ Statement of Facts and Contentions contains what he says are the events which have contributed to his ‘over a period of time injury’. The Respondent says those events occurred while working between 1 March 2021 and 5 March 2021 while driving from Townsville to Century Mine and back again. At paragraph [22] of its Statement of Facts and Contentions, the Respondent says:

The term ‘significant contributing factor’ is related to a person’s employment and whether it has contributed to the person’s injury in a significant way.  This can be because of: 

(a)	an event or occurrence during the employment

The events which have contributed to the Appellant’s over a period of time injury are the events while working between 1 March 2021 and 5 March 2021 while he was driving from Townsville to Century mine and back again. The specifics of what happened in the event include:-

(i)	working in extreme heat over a number of hours ranging from 1.5 to 6 on 4 March 2021;

(ii)	drinking excessive volumes of water, possibly 11 ltrs, over 3rd and 4th March;

(iii)	Dehydration or over hydration during this period; 

(iv)	Fall from the truck/trailer and loss of consciousness on 4 March;

(v)	Possible head/neck injury from fall from truck.

(b)  	the nature of the work performed. 

	The nature of the work which the Appellant has performed from 1 March 2021 to 5 March 2021 has contributed to his over a period of time injury. The nature of the work performed was driving his truck to Century Mine, staying overnight without food or showers, sleeping in the cab of his truck, un-tarping the loads in preparation for unloading, re-tarping and configuring trailers/dollys, working in extreme heat conditions, drinking lots of water, driving to Cloncurry, further loading and yard work at the depot, suspected fall from truck and loss of consciousness, load and unloading trailers/dollys in extreme heat and travelling back to Townsville.

(c) 	the conditions under which the work is performed.

The employer did not provide the relevant information regarding he Appellant’s arrival time at Century Mine, and that resulted in his exclusion from the mine until the next day, without food, shower or sleeping facilities.  The Appellant had water from his 15ltr bottle, which he consumed in place of food and slept in the cab of his truck.  He then resumed truck duties the next day without breakfast.  He continued to consume water. He was required to work, in a loading yard, in extreme heat. 

The facts are not denied by the Employer.

[14]	The Applicant notes that a specific date is nominated for the fall from the truck and loss of consciousness as 3 or 4 March 2021 and points out that what is alleged is a ‘possible head/neck injury’ from the fall from the truck.

[15]	The Applicant points to its Statement of Facts and Contentions where it provides a detailed breakdown of the events which are said to have occurred between 1 March to 5 March 2021. I do not intend to reproduce that breakdown of events in these reasons for decision. However, I note the following assertions made by the Applicant in its submissions:

•	the unloading of the trailers at the Century Mine site occurred on 3 March 2021. Mr Simounds left the Century Mine site just before 5:00 pm and then travelled to Gregory where he commenced a designated rest break.

•	On 4 March 2021, Mr Simounds left Gregory at 3.47 am and was required to load his trailers a the NQX Depot at Cloncurry and then unhook trailers and dollys at the DBC depot at Cloncurry. 

[16]	I note that the Applicant in this matter says its principal contention is that there is insufficient evidence that Mr Simounds’ injury arose out of, or in the course of, his employment with Centurion, nor that employment was a significant contributing factor to his injury. The Applicant contends that Mr Simounds’ condition is the result of an underlying or dormant condition experienced by him and/or the alleged injury has arisen due to factors which are not work related.

[17]	The Applicant also contends that Mr Simounds’ Statement of Facts and Contentions does not specify what the nature of the injury is, nor with any specificity how the injury is alleged to have occurred. The Applicant says that in paragraph [45] of Mr Simounds’ Statement of Facts and Contentions, it is alleged that the medical evidence demonstrates that Mr Simounds ‘suffered an acute memory and cognition impairment following stressful occupational event’.

[18]	Further, the Applicant says that there is no mention in  Mr Simounds’ Statement of Facts and Contentions of there being a fall or of the Respondent sustaining a head injury. However, the Applicant says that what now appears to be positively asserted (noting that Mr Simounds has not amended his Statement of Facts and Contentions) according to the report of Dr White is that Mr Simounds had a fall whilst working at the Century Mine Site on 3 or 4 March 2021. 

The Relevant Medical Evidence

[19]	Mr Simounds’ Statement of Facts and Contentions includes a table set out under the heading ‘Facts and Evidence of medical treatment’. 

[20]	The Applicant in this matter, the Workers’ Compensation Regulator (‘the Regulator’), sets out a ‘review of the relevant medical evidence’ from [18] to [32] of its written submissions.  This review refers to the medical evidence set out in the table included in Mr Simounds’ Statement of Facts and Contentions.

[21]	I note that the report of Mr Simounds’ treating specialist and neurologist, Dr Richard White, is dated 28 November 2022, some months after the parties exchanged their Statements of Facts and Contentions. 

Report of Dr White

[22]	The Applicant says that Dr White’s report states that Mr Simounds was ultimately discharged without clear evidence of underlying neurological pathology having been identified and without psychiatric formulation of a formal mental health disorder. The Applicant says that in this report, in contrast to the previous ‘vague reporting’ from Mr Simounds about an alleged fall, it is now alleged, for the first time that:

Mr Simounds provides further details of the work undertaken at the mine site during the heat at the zenith of his symptoms. He has clear lucid recollection of emptying the trailers despite the extreme heat and the refusal of an adjacent contractor to participate or assist. He reports that as he was cleaning down one of the trailers, he lost his footing, falling over his head, striking it. It is unclear whether there was a loss of consciousness, but following the event he was troubled by a ‘wild headache subsequently’.

[23]	The Applicant says that the history would date the alleged fall to 3 March 2021 at the Century Mine site, that this contradicts the information provided in Mr Simounds’ Statement of Facts and Contentions, and that the report of Dr White contains other factual errors.

[24]	On pages 7 and 8 of the report, Dr White offers a ‘Summary and Opinion’. Relevantly, from the top of page 8 of the report, Dr White opines:

There is a reported possible loss of consciousness followed by fall or head injury, or loss of balance and fall followed by head injury and loss of consciousness – the story is uncertain and this is not resolvable.  In the absence of more contemporaneous details, any assessment of this period is highly conjectural. There are a number of possibilities including the possibility he sustained a mild traumatic brain injury with his headaches and subsequent functional cognitive symptoms, a reflection of a post-concussion syndrome. This is certainly a very simple and parsimonious narrative.

The second possibility was that he experienced another medical event of which his syncope or fall were symptomatic as were his headaches and cognitive disturbance.  For example the syndrome of posterior reversible encephalopathy syndrome can be vasoconstriction syndrome, both of which can be associated with a prolonged lingering headache and non-specific cognitive issues.

I have recommended an FDG PET brain scan to confirm that he does not have any regional hypometabolism to suggest a cortical dementing illness.

I think that in the absence of abnormal serology, with a normal EEG, normal structural MR brain and ACE-R scores which have, if anything, improved if not stablished over an extended period of time, it is unlikely that Mr Simounds has a significant organic neurological disorder.

The more difficult issue is whether his symptoms could be considered the consequences of a workplace related injury. There is a suggestion from his and his partner’s supportive history that the workplace environment has been stressful which may be a factor contributing to the perpetuation of his symptoms.

If one takes a position in the absence of any evidence to the contrary, the most likely scenario is that he sustained a head injury during a period of possible environmental extreme induced syncope, then his ongoing symptoms could be considered to be part of a post-concussion syndrome.

There will not with an investigation or other enquiry that will be able to exclude the possibility that some other acute medical event such as PRES or RCVS were the originating events, given the evanescent imaging. If so, they would have been at least partly triggered by the exposure to the extreme physical environment in a gentleman with undertreated hypertension.

The Applicant says that Dr White’s report is deficient and the Commission would be assisted by additional medical evidence

[25]	The affidavit of Ms Phoebe Lock, Senior Appeals Officer at the Workers’ Compensation Regulator, states that the Applicant considers the medical report of Dr White is deficient in a number of respects, including that Dr White has not appropriately addressed the nature of the personal injury, its causation, and whether there exists more than a mere possibility that employment is a significant contributing factor to any injury sustained. The Applicant says that ‘at its highest, it appears that the conclusions of Dr White are a differential diagnosis or a diagnosis by exclusion and are with respect entirely hypothetical’.

[26]	The Applicant says that the difficulty with a diagnosis by exclusion in the case of Mr Simounds is that it does not appear that all relevant testing has been undertaken which would afford a diagnosis by exclusion greater weight. 

[27]	The Applicant says that in deciding the substantive matter, the Commission will be assisted by additional medical evidence from an independent specialist in the field of neurosurgery which considers and addresses the factual and medical history of Mr Simounds’ claim. 

[28]	The Applicant points to Jetcrete Oz Pty Ltd v Blackwood (Workers’ Compensation Regulator) & Anor (‘Jetcrete’) where O’Connor DP (as his Honour then was) observed:
[18] 	I accept the Applicant’s submission that the matters identified in paragraph [11] and not disclosed to Dr Shaikh means that his report does not adequately consider key pieces of information which may have an impact on the Commission’s proper consideration of the appeal. As was identified in Atlas Marine International Pty Ltd v Q-COMP, there is utility to have the Second Respondent examined by a psychiatrist who had no previous contact with the Second Respondent and who can bring a fresh assessment of her psychological/psychiatric condition. 

[19] 	I do not consider it unreasonable that the Applicant would seek to obtain its own evidence and not be limited to the doctor engaged by the First Respondent and over which the Applicant had no role in choosing. 

[29]	The Applicant says that it is entitled to have confidence in the medical examination undertaken. As noted in Gray v Hopcroft & Anor (‘Gray v Hopcroft’):

[15] 	It is perfectly clear in any view that justice required that a plaintiff have the ability and right to choose medical witnesses in whom he or she has confidence. Often that confidence will be based upon the experience of the plaintiff’s legal representatives of the forensic ability of specialist witnesses perhaps suggested by that legal representative. 

[16] 	Similarly defendants must have the right to choose those expert witnesses to examine a plaintiff in whose forensic ability and expertise they have confidence.   

The Respondent says there is no genuine deficiency in its material 

[30]	In contrast to the position of the Applicant, the Respondent says that Dr White’s report contained an opinion which discharged the Respondent’s evidentiary and persuasive onus on the issues in dispute. The Respondent says that up to the point of receiving Dr White’s report on 22 December 2022, the Applicant was content to rely upon the content of its Statement of Facts and Contentions which stated that the ‘medical evidence is not conclusive’ and its alternative proposition that if Mr Simounds had suffered an injury, it did not arise out of, or in the course of, employment and employment was not a significant contributing factor. The Respondent says that the three alternative causes provided for Mr Simounds’ injury are wholly speculative. 

[31]	The Respondent says that the Applicant cannot assert that the proposed expert report it seeks will provide an evidentiary basis for the Applicant’s speculative case. 

[32]	The Respondent says that as the Applicant has received a medical report which contradicts its position, the Applicant is effectively seeking an order that it have an ‘opportunity to make good its speculative case’. The Respondent says that this is not the purpose of an order made under s 556 of the Act.  

[33]	The Respondent says that a perusal of Dr White’s report shows that the criticisms raised by the Applicant are unfounded in fact. The Respondent submits that the Applicant’s assertion that the opinion formed in the medical report should be made ‘on the balance of probabilities’ is contrary to authority. The Respondent points to Cowen v Bunnings Group Limited (‘Cowen’), a case which it says has similar facts to that of this matter, where Alan Wilson J said:

[17]  As Spigelman CJ observed in Seltsam Pty Ltd v McGuiness & Anor, a number of well-known High Court decisions show how, and why, the way the common law approaches causation is quite different from accepted, and customary, scientific methods. He said:

The common sense approach to causation at common law is quite different from a scientist’s approach to causation… An inference of causation for the purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference. 

[18] 	The task confronting a court, adopting this legal approach to causation, had earlier been explained by Mahoney JA in Fernandez v Tubemakers of Australia Ltd: medical science may say in individual cases that there is no possible connection between the alleged causative event and the injury, and in that event the court cannot act as if there were a connection; but, if medical science is prepared to say the connection is possible then it is up to the court to decide if it is probably, to the requisite degree.

[19] 	This emphasis in the law of tort upon the process of making findings about causation based upon degrees of probability rather than scientific precision has a long and respectable pedigree. As Dixon CJ and others explained in Ramsay v Watson, a medical expert may express an opinion as to the nature and cause, or probably cause, of an ailment, but it is for the jury to weigh and determine the probabilities; and, in undertaking that exercise, the Court is not to transfer the task to the experts but, rather, to ask itself: ‘Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?’.

[20] 	So it has been said, for example, that a finding of a causal connection may be open even if there is no medical evidence to support it, or when the medical evidence does not rise above the opinion that a causal connection is possible.

[34]	The Respondent says that the assertion that the Commission will benefit by having an additional expert report could only follow if the Applicant demonstrates that Dr White’s report was deficient. The Respondent says that Courts and Commissions are not usually assisted by a multiplicity of expert reports and that State Courts closely regulate the production of expert reports through the Uniform Civil Procedure Rules 1999 (Qld) to limit expert evidence even in matters where WorkCover has a right to require a plaintiff to submit to an expert assessment. 

[35]	With regard to the case cited by the Applicant at [29] above, Gray v Hopcroft, the Respondent says that those remarks made by Thomas JA, Ambrose and Helman JJ related to an interlocutory appeal where the defendant had a statutory right to have the plaintiff examined by an expert and that the single issue was whether the defendant had to choose an expert at the plaintiff’s location or in Brisbane. The Respondent says that that the quoted observations are ‘inapt to the application’.

[36]	The Respondent says that the Applicant’s submission set out at [26] and [27] above, is contrary to the authority and the reasoning in Cowen which is an example of circumstantial reasoning by exclusion. The Respondent says that courts have long regarded circumstantial reasoning as a valid exercise in rationality. 

[37]	The Respondent rejects the Applicant’s submission that Dr White’s report is ‘replete with other factual errors’. The first of the factual errors set out in [38] of the Applicant’s written submissions refers to Mr Simounds ‘being instructed to run a couple of trips to a mine site on days when the heat was reaching 40 degrees during the period of 1 to 5 March 2021’. The Respondent says that it is not clear what error exists regarding this given what it says are the  agreed facts in the matter. The second of the factual errors raised by the Applicant as ‘simply’ not occurring, is ‘that the Respondent was disturbed in his sleep in the Gregory Hotel and his Manager demanded his return with trailers to Cloncurry for a further journey to Hughenden’. The Respondent describes this as a minor factual dispute and the Respondent questions the relevance of these facts to the injury. 

[38]	The Respondent further says that the Applicant’s submissions as to the shortcomings in the factual history provided to Dr White can have no consequence to what another expert may or may not say based on the history provided to them. The Respondent says they are ‘the usual matters raised in cross-examination of experts’.

[39]	With regard to the other submissions made by the Applicant addressing case law, the Respondent says that these cases contained significantly different scenarios to the present application and the approach of the Commission on those occasions must be considered in that context. The Respondent says that Atlas Marine International Pty Ltd v Q-COMP (‘Atlas Marine’) involved a genuine question of impartiality of the position of the treating psychiatrist where the employer sought the order. Jetcrete involved a significant factual dispute about whether there were pre-existing stressors which contributed to the occurrence of the psychiatric injury which were not considered by the first respondent’s expert. The Respondent says in that case, the existence of pre-existing facts were sworn into particularity and the expert’s failure to consider those matters was demonstrated.  Finally, the Respondent says that Bridges Health & Community Care Ltd v Workers’ Compensation Regulator involved an appeal by the employer in respect of a decision to accept a psychiatric injury where there did not appear to be anything more than clinical notes and work capacity certificates from a general practitioner or psychologist and that in that case, the Regulator adopted a neutral position on the application by the employer.

[40]	The Respondent refers to the submission of the Applicant that it requires a report to address the ‘question marks’ around the medical evidence and says, ‘there was nothing preventing the Applicant obtaining a report on the papers which addressed those “question marks”’. Essentially, the Respondent says that this application seeks an order for the examination of the Respondent in circumstances where the Applicant cannot point to any genuine deficiency in the Respondent’s material. 

The Applicant’s Submissions in Favour of Making the Order

[41]	The Applicant submits that it would be just and equitable for the Commission to make the order ‘so that it may have a medical report which goes to the issue as to whether the Respondent suffered a “personal injury” and an injury pursuant to section 32 of the Act on a full appreciation of the available medical history and the alternative factual scenarios regarding the alleged causes of the Respondent’s injury’. 

[42]	Ms Lock’s affidavit sets out the steps taken by the Applicant to seek Mr Simounds’ consent to a medical examination. It is on the basis of a failure of agreement between the parties that this application is made. 

[43]	The Applicant says that to date, Mr Simounds has not been examined by a specialist doctor chosen by the Applicant and that as noted in its submissions, it contends that the current medical evidence relied upon by the Respondent is unsatisfactory. 

[44]	The Applicant says that in making his assessment and forming his medical opinion, Dr White was confined to the symptoms reported and relayed by Mr Simounds and the facts alleged by Mr Simounds and his legal representatives as having possibly occurred between 1 and 5 March 2021. The Applicant submits that there are questions regarding the veracity of the history provided to Dr White by Mr Simounds ‘in light of what has gone before’.  

[45]	The Applicant contends that an independent specialist in the field of neurosurgery, armed with the available factual and medical history of Mr Simounds, would be able to consider the issues raised in this appeal afresh and having regard to the nature of the Respondent’s symptomology and their possible causation, to provide a medical opinion on: the likely injury sustained by Mr Simounds; the extent to which employment duties have, or have not contributed to that injury; whether medical investigations and treatment to date have been sufficient; and/or whether further investigations are able to be undertaken that may further assist in the determination of the medical issues raised in this appeal. 

The Respondent’s Submissions Against Making the Order

[46]	The Respondent says on the material provided by the parties to date, it is most unlikely that the Commission will conclude that Mr Simounds did not suffer an injury while he was employed to drive a long-haul trip which involved loading and unloading semi-trailers in extreme heat in Western Queensland from 1 to 5 March 2021.

[47]	The Respondent sets out some matters it says are not in contest between the parties. The Respondent says that Mr Simounds:

(a)	Had no symptoms of cognitive impairment when he went to work on 1 March 2021;

(b)	Developed symptoms of cognitive impairment which were observed during the work trip;

(c)	Had symptoms of cognitive impairment which were observed upon his return;

(d)	Reported his symptoms to a GP on 8 March 2021;

(e)	Was hospitalised from 7 to 14 April 2021 for investigation;

(f)	Has not returned to his employment since 5 March 2021; and

(g)	His symptoms have continued.

[48]	The Respondent says that the nature of Mr Simounds’ injury and symptoms means that he is unable to provide ‘the degree of precision in his recollection that the Applicant seeks’.

[49]	With regard to the history of the application, the Respondent says that the material relied upon by the Applicant in this matter is deficient and that it does not include:

(a)	Any evidence to show the Applicant has provided medical or other material to the proposed expert or sought a preliminary report on the papers which provides an evidentiary basis for the assertions now contained in the applicant’s material, including:

(i)	Whether there are any inadequacies in the medical testing or investigations of the Respondent;

(ii)	That further investigations would assist in forming an opinion;

(iii)	That there may be other reasonable hypothesis raised by the records and history.

(b)	A draft letter of instruction to the proposed expert;

(c)	A list of annexures to the draft letter of instruction; or

(d)	The availability of the proposed expert. 

[50]	The Respondent says that the Applicant has had ample opportunity to develop the deficient material and obtain a report on the papers and that granting the application will cause a further delay of unknown duration. 

Consideration

[51]	Section 556 (see above at [3]) provides a discretion for the Commission to order an appellant to attend an independent medical examination where one of the two pre-conditions set out at s 556(1)(a) and (b) are established. For the reasons below, I find that a pre-condition for the exercise of a discretion is satisfied and I have determined to exercise the discretion and make the orders set out  below at [81].

Is the condition of a claimant or worker who has, or is said to have, sustained an injury relevant to the appeal? Or is the cause, nature or extent of the injury or incapacity arising from the injury relevant to the appeal?

[52]	The Applicant says that there is ‘a distinct failure’ in Mr Simounds’ Statement of Facts and Contentions to identify what the actual injury is. The Applicant says that a review of the medical evidence demonstrates that the medical explanation for Mr Simounds’ condition has ‘shifted over time from being one of dehydration and heat stress to overhydration causing salt depletion and giving rise to hyponatremia, and then to an alleged head injury causing long-term cognitive defects’. The initial WorkCover claim involved a workers’ compensation medical certificate from Dr Christopher Stelmaschuk of North Shore General Practice dated 6 May 2021. That medical certificate identifies that dehydration or overhydration are what gave rise to Mr Simounds’ symptoms of cognitive impairment. The Applicant points out that on 8 March 2021, tests ordered by Dr Kazum relating to overhydration or dehydration came back as normal.

[53]	The Applicant says that on the basis of the respective Statement of Facts and Contentions provided by the parties, both of the matters set out in s 556(1)(a) are in issue and are relevant to the appeal. At the hearing, the Applicant described this case as being ‘the poster child for this type of application to be made to the Commission’. The Applicant contends that there is no work-related personal injury suffered by Mr Simounds and that his condition is the result of factors which are not work related. On that basis, the Applicant says that whether Mr Simounds has in fact suffered a personal injury, whether that injury is work related and whether employment is a significant contributing factor are fundamental issues requiring determination in the substantive appeal. 

[54]	At some stage, the possibility that Mr Simounds experienced a fall and following that, a head injury, was considered by doctors. It does appear that Mr Simounds has reported a recollection to Dr White that seems to have more clarity and certainty about the event that he says gave rise to his symptoms. The information contained in Dr White’s report about what Mr Simounds recalls occurring differs from information provided in material such as his Statement of Facts and Contentions and information provided to WorkCover Queensland in the communications report. These are essentially matters for the hearing of the substantive appeal, but they certainly demonstrate that the cause of the injury is a matter relevant to the appeal and that the parties are in dispute about it.

[55]	Ms Lock deposes that:

… the applicant considers that the medical report of Dr White is deficient in a number of respects, including that he has not addressed appropriately the nature of the personal injury, its causation, and whether there exists more than a mere possibility that the employment is a significant contributing factor to any injury sustained.

[56]	The Applicant submits that there was clearly a difficulty for Dr White in this matter ‘given the nature of the evidence and given the nature of the history provided by Mr Simounds’ but says that this reinforces the necessity for the Applicant of obtaining its own expert medical report to try to clarify the issues. 

[57]	The Applicant also notes that the report of Dr White makes reference to some additional investigations to be undertaken which may place him in a better position to reach a conclusive view on the matter. 	Dr White says, ‘I have recommended an FDG, PET brain scan to confirm that he does not have any regional hypometabolism to suggest a cortical dementing illness’. The Applicant submits that such an investigation has not been undertaken. 

[58]	Throughout its submissions, and at the hearing, the Applicant maintains that there is insufficient evidence that Mr Simounds’ injury arose out of, or in the course of, his employment with Centurion, nor that his employment was a significant contributing factor to the injury. The Applicant contends that Mr Simounds’ condition is the result of an underlying or dormant condition experienced by Mr Simounds and that it has arisen due to factors which are not work related.

[59]	At the hearing, the Applicant took me through a number of occasions where Mr Simounds has described to doctors what he thinks caused his injury. It is clear that Mr Simounds has provided different versions of what occurred and that the dates or places he recalls are, at times, inconsistent. While this will be a matter to be explored at hearing, I understand the argument made by the Applicant that there does not appear to be any precision in determining the cause of the injury. It may be that a cause of injury cannot be identified with any level of certainty.  However, I am satisfied that both the injury and the cause of the injury are matters relevant to the appeal and that therefore, both preconditions of s 556(1) are met.

	Should I exercise the discretion and grant the application per s 556(2) of the Act?

[60]	I understand the Respondent’s argument that it cannot simply be the case that if the pre-conditions in s 556(2) of the Act are met, it follows that the discretion must be exercised.  If that were the case, s 556(2) would not be couched in terms exercising discretion, but rather it would direct me to make the order if I am satisfied the pre-conditions are met. And, as suggested by the Respondent, if the respective Statement of Facts and Contentions of the parties demonstrated that the matters set out in section 556(2) were indeed in issue, it would always follow that the order would be made. Clearly, I am required to take into account the other matters put to me and consider whether to make the order. 

[61]	The Applicant contends that it is appropriate that it be afforded the opportunity of obtaining further medical evidence to address those issues in dispute in circumstances where there are ‘question marks raised in relation to each of those issues by the current medical evidence’.

[62]	The Applicant says that the Commission has, in similar circumstances, confirmed that the Applicant is entitled to have a claimant undergo an independent medical examination.

[63]	The Applicant submits that to be heard in an appeal means to be heard fully and fairly and of reasonable extent. The Applicant says that a denial of the application would result in the trial being determined only on evidence obtained by the Respondent. The Applicant would not be able to put before the Commission the opinion of a medical practitioner to contradict or challenge the medical evidence relied upon by the Respondent and to establish that the Respondent’s employment with Centurion was not a significant contributing factor to the injury.

[64]	I understand the argument made by the Respondent that to grant the application may cause an unknown delay to the hearing of the matter. However, I think the overriding matter of importance is to ensure that when the matter is heard, it is heard on the basis of both parties being in the best possible position to put forward their case and for the Commission to be assisted by the provision of sufficient information for it to determine the matter. 

[65]	The Applicant has stated that it will be bound by the medical opinion it receives. There remains open the possibility that the further independent expert advice will in fact strengthen the position of the Appellant in the substantive matter. As the evidence currently stands, there remains a significant distance between the positions of the parties and I am of the view that a further expert report may have the effect of narrowing the issues or leading to ‘less disputation’ before the Commission in the hearing of the appeal. The facts of this case are unusual to the extent that the Commission appears to be asked to consider whether, on the balance of probabilities, an unwitnessed event of which Mr Simounds has no specific recollection, means that work was the significant contributing factor to his illness. I find that the Commission will be better placed to determine this if the nature and possible cause of the injury is better able to be identified.  In the event that the expert evidence does not further clarify the nature or possible cause of the injury, Mr Simounds will be in no worse position than he was on the basis of the report of Dr White. 

[66]	It is not possible to state that the delays in this matter are solely the fault of the Regulator in bringing this application. There was a delay in the matter being ready to progress to hearing while Mr Simounds sought an expert report from Dr White. It seems from the letter of instruction provided to Dr White by Ms Cox that the request for his report was not made until 10 November 2022. This is many months after Mr Simounds’ appeal against the Regulator’s review decision was made.

[67]	It also appears that there was a period of just under a month between the receipt of Dr White’s report by Organic Legal on 28 November 2022 and provision of the report to the Regulator on either 21 or 22 December 2022. I accept that the receipt of the report by the Regulator on our around that date led to a delay given the normal seasonal shut down of its office.

[68]	Reasonable steps were taken by the Regulator to seek that Mr Simounds submit to a further independent medical assessment by way of correspondence dated 24 February 2023 and it seems that a reply stating that Mr Simounds would not consent to participate in the further medical assessment was not provided to the Regulator until 6 April 2023.

[69]	I understand that the Respondent is of the view that it would be adequate for the Applicant to provide its chosen expert with the medical material already gathered and seek a report ‘on the papers’ regarding the matters it believes are at issue. The Applicant points out, and I agree, that there are several problems with such a proposal: firstly, it denies the Applicant’s expert the ability to obtain a fresh history personally from Mr Simounds; secondly, it denies the Applicant’s expert the ability to question Mr Simounds about that history to consider further details and information which might become relevant to the formation of the expert’s opinion; and finally, it denies the Applicant’s expert witness the ability to conduct a physical examination of Mr Simounds, which may include some form of neurological testing.

[70]	I disagree with the Respondent that the Applicant either should have sought such a report before bringing this application or that I should refuse to exercise the discretion to order that Mr Simounds undertake the medical assessment on the basis that the Applicant could seek a medical opinion on the papers. I can further imagine a situation where, if the Respondent disagrees with something contained in a report undertaken without a physical examination of Mr Simounds, it may be argued that the lack of a physical examination undermines the findings made in the report. 

[71]	I note that the Respondent has referred me to the authority of Cowen which deals with the approach to causation undertaken at law as opposed to the proof of causation medically or scientifically. I note that the Applicant does not disagree with the Respondent about the relevant legal principles from that decision but simply says that the decision is irrelevant to the issue to be determined in this matter. It is the case that a decision regarding causation is one to be made by the Commission and that there are times where such a decision will need to be made by looking at all information and circumstances to decide, on the balance of probabilities, what occurred. However, as a decision-maker in the types of matters as the one subject of the substantive appeal here, I am of the view that the Commission may be assisted by the provision of an additional expert opinion to be considered as part of that process of reasoning.

[72]	With regard to the Respondent’s argument that the court is not usually assisted by a multiplicity of expert reports, the Applicant says, and I agree, that this is not a case where the Commission is faced with a ‘multiplicity of reports’.  Currently, we have Dr White’s report.  If the application is granted, the Commission will also have a report from another doctor chosen by the Applicant. 

[73]	I think perhaps the most compelling argument the Respondent raises as to why the discretion should not be exercised is that Mr Simounds is experiencing a cognitive deficit which relates to his ability to recall events, and this is demonstrable on the history that is before the Commission.  However, it seems to me that Mr Simounds’ recollections over a period of time have shifted and at times appear to recall similar types of events, albeit on different dates or at different locations, and at times have raised completely new recollections or theories as to what occurred. I disagree that because Mr Simounds has demonstrated difficulties in recollecting exact details, there is absolutely no benefit to be gained from the provision of a further examination and medical report. A further examination will enable a specialist, fully informed as to the history of the matter, to question Mr Simounds and probe the recollection of Mr Simounds (and others) about the circumstances of the period during which he allegedly sustained the injury. 

[74]	I further note that Dr White suggested that there may be utility in conducting a further investigation but for whatever reason, that investigation was not sought.  I think that it is appropriate for the Applicant to seek its own expert opinion and if that doctor believes there are further investigations to be undertaken to help establish the nature of the injury or the cause of the injury, that such investigations should be enabled. I disagree with the Respondent’s contention that the request for Mr Simounds to undertake a further medical assessment is a ‘fishing expedition’, particularly in the context of Dr White’s own remarks. 

[75]	It has been submitted by the Respondent that there will be inconvenience and distress caused to Mr Simounds by an order that he undergo a further medical assessment. I understand that Mr Simounds may experience some distress in having to submit to the medical assessment. However, the inconvenience is, to an extent, ameliorated by the Applicant stating that it will pay for all costs associated with undertaking the assessment.  I am certain that any medical expert engaged by the Applicant will have a great deal of experience and professionalism and will conduct the assessment in a way that will not cause deliberate distress to Mr Simounds.  

[76]	I understand the argument of the Respondent to be that the Applicant has not demonstrated that Dr White’s report is deficient in that a particular matter was not considered, that something was missed or misinterpreted, or there was an issue with impartiality or independence. It appears to me that the issue raised with Dr White’s report is that it concludes that a particular cause of injury was possible, but that it does no more than that. And in those circumstances, the Applicant seeks another medical expert report which may shed further light on the injury or its cause. 

[77]	The Respondent provides some specific submissions regarding the cases which have been put to me by the Applicant. With regard to Jetcrete, the Respondent says that the exercise of discretion by O’Connor DP in that case was on the basis of a doctor’s report not addressing ‘key pieces of information which might have an impact on the Commission’s proper consideration of the appeal’ and that it can be readily distinguished from the current case before the Commission. Likewise, in Carpenter Investments (Qld) Pty Ltd t/a Lockyer Car & Dog Wash v Simon Blackwood (‘Carpenter’), the Commissioner considering whether to exercise the discretion concluded that there was a key piece of evidence that was not considered by the expert which was directly relevant to the contest about causation. The Respondent submits this is not the case here, so Carpenter is distinguishable. The decisions in those cases were based on the facts and circumstances that were before the Court or Commission at that time. For reasons I have explored in this decision, I am making the order not on the basis that there are ‘key pieces of information’ that have not been addressed or are missing from Dr White’s report, but based on the unusual case we have before us, where the reported series of events or causes of the injury have changed over time and where Mr Simounds’ injury presents some significant challenges in determining the issues required to be considered by the Commission.

[78]	The substantive appeal will require the Commission to form a view based on an inexact history of what actually occurred and determine whether, on the whole of the evidence, the Commission is satisfied on the balance of probabilities regarding Mr Simounds’ injury and the cause of the injury.  I understand that the ultimate determination of whether an injury was sustained and whether work was the significant contributing factor is a matter for the Commission and not for the medical experts. However, expert medical reports often play a very important role in that a trained professional familiar with the type of injury suffered is able to provide an opinion as to the nature and the cause of the injury and is usually available as a witness in proceedings enabling the Commission to further consider their report and ask any questions which may help inform the Commission’s decision making. 

[79]	Having been satisfied that the preconditions set out in the section have been met, for the reasons provided here, the application is granted. 

[80]	The matter of costs was not discussed at the hearing but I note that the Applicant in this matter is seeking that the Respondent pay the Applicant’s costs of, and incidental to, the application. I will hear the parties as to costs.

Order

[81]	I order that:

1.	Pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 556(2), Mr Simounds is to submit to an independent medical examination to be conducted by Dr Leigh Atkinson, Neurosurgeon on a date to be fixed.

2.	That the Applicant pay all specialist fees relating to the independent medical examination. 

3.	That the Applicant pay all reasonable transport and/or accommodation costs necessary for Mr Simounds to attend the medical examination.

4.	That upon receipt of the medical report by the Applicant, a copy will be provided to Mr Simounds through his representative.