INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Hoby v Workers’ Compensation Regulator [2019] ICQ 5	
PARTIES:	SUSAN KAORI HOBY
(appellant)
v
WORKERS’ COMPENSATION REGULATOR
(respondent)	
FILE NO:	C/2018/3	
PROCEEDING:	Appeal	
DELIVERED ON:	9 May 2019	
HEARING DATE:	25 May 2018	
MEMBER:	Martin J, President	
ORDER:	The appeal is allowed.  The matter is remitted to the Queensland Industrial Relations Commission to determine the matter according to law.  	
CATCHWORDS:	WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR – TO INJURY – where the appellant claimed that she had suffered a physical injury caused in the course of her employment – where the insurer rejected the appellant’s claim for compensation and that decision was supported by the respondent – where, in proceedings before the Commission, expert witnesses differed regarding the cause of the appellant’s injury – where the Commission preferred the evidence of one expert over another – whether the Commission provided reasons for doing so 	
CASES:	Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, cited
Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd [2015] ICQ 003, cited	
APPEARANCES:	P Rashleigh instructed by Shine Lawyers for the appellant
H Blattman instructed directly by the Workers’ Compensation Regulator 	

[1]	In 2016 Susan Hoby made a claim for an injury described as “right shoulder bursitis” caused in the course of her employment as a kitchen hand at the Rosalie Nursing Centre. She claimed that the injury occurred on 1 February 2014 but had continued to become worse over time.  
[2]	Her application to the insurer, WorkCover Queensland, was rejected and her appeal to the Regulator was refused. A similar result ensued in the proceedings before the Commission.
[3]	In this court her grounds of her appeal against the Commission’s decision were:
1.	The Commission erred in failing to provide any or any adequate reasons for accepting the evidence of Dr Nutting over that of Dr Shaw;
2.	The Commission misdirected itself as to the law when accepting the evidence of Dr Nutting at paragraph 74 of its decision;
3.	The Commission erred in concluding that the appellant’s injury did not arise out of or in the course of employment because having accepted the appellant’s evidence of what caused her symptoms, there was no evidence upon which that finding of fact could be made;
4.	The Commission erred by misapplying the law to the facts in concluding that the appellant’s injury did not arise out of or was not in the course of employment; and
5.	The Commission erred by misapplying the law to the facts in concluding that the appellant’s employment was not a significant contributing factor to her injury.
Ground 1 – Adequacy of reasons
[4]	Two orthopaedic specialists were called to give evidence – Dr Shaw by the appellant and Dr Nutting by the Regulator.  
[5]	The Deputy President summarised Dr Shaw’s opinions at paragraphs [48] – [62] and Dr Nutting’s opinions at paragraphs [63] – [75].  
[6]	In the section of the reasons headed “Conclusion”, the Deputy President held that there had been no evidence from the appellant’s treating doctors up to 2016 to support the claim that her right shoulder bursitis or impingement arose out of her employment.  
[7]	The Deputy President went on to say that, even if it had been determined that the appellant had suffered an injury arising out of her employment to which her employment was a contributing factor, it must be shown that the contribution was “significant”.
[8]	The following paragraphs then appear in the reasons:
“[80] I have accepted Dr Nutting’s opinion that the prime cause of the Appellant’s injury is ‘her lack of conditioning and reserve and problem with her fine tuning’ and ‘mechanical aberration in the shoulder, rather than her employment.
[81] Carman v Q-COMP and Pleming v Workers’ Compensation Board of Queensland are cases where it has been established that while the claimants were successful in establishing that an underlying or pre-existing condition had been aggravated, they both failed to establish that their employment was a significant contributing factor to the aggravation.
[82] In Pleming (ibid), de Jersey P considered the fact of a worker’s degenerative back condition which had been aggravated by his work.  De Jersey P stated that ‘bending at work likely produced related pain which would otherwise not have been experienced’. While a conclusion could be reached that showed that employment contributed to the aggravation, the other factor to be considered was the degenerative condition itself. In that case, the original decision maker had found that the employment was no more than an irritant’ and should not be elevated to the level of a contributing factor.
[83] In this matter there is a competing cause and that is the Appellant’s underlying aberration in the shoulder. The Regulator’s submission that the Commission should accept Dr Nutting’s opinion, that the work activities in relation to causation of an injury were of a type as described in Carman and Pleming (ibid), is accepted.”
[9]	The complaint by the appellant with respect to that part of the Deputy President’s reasoning is that there is nothing to tell the reader why the Deputy President preferred the evidence of Dr Nutting over that of Dr Shaw.  
[10]	The principles guiding the adequacy and nature of reasons are well known. They were set out in Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd:
“[14] A Tribunal need not set out reasons for every step which has led to a decision but it must record the steps which were taken to arrive at the result.
[15] The extent of the reasons which are required to be given will depend upon the circumstances and the context of the case. Generally, reasons should deal with the substantial points which have been raised, including findings on material questions of fact. The reasons should refer to any evidence or other material upon which those findings are based and provide an intelligible explanation of the process of reasoning that is led from the evidence to the findings and from the findings to the ultimate conclusion. Some explanations should be given if the evidence tendered or the submissions made by a party have been rejected. The reasons given must set out the steps that were taken by the Tribunal to arrive at the decision. This allows the parties who have been unsuccessful to determine whether they have a basis for appeal.
[16] It must be understood, though, that the principles set out above do not mean that reasons for decision have to be lengthy or elaborate. A distinction has always been drawn between courts and tribunals. Just as it is not necessary for a judge to make an express finding in respect of every fact leading to, or relevant to, his or her final conclusion of fact, it is not necessary that the judge reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion. The fact that reasons of the Commission might be brief is not necessarily a flaw. Courts conducting reviews or appeals from tribunals have been repeatedly enjoined by the High Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”
[11]	The treatment of expert evidence was considered in Drew v Makita (Australia) Pty Ltd where the following was said by the Court of Appeal:
“[65] The following remarks of Henry LJ in Flannery v Halifax Estate Agencies Ltd relating to expert evidence were referred to with approval in the reasons of Ipp JA in Wiki v Atlantis Relocations (NSW) Pty Ltd: 
‘It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible ... But with expert evidence, it should usually be possible to be more explicit in giving reasons: See Bingham LJ in Eckersley v Binnie (1988) 18 ConLR 1 at 77–78:
“In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ...” ’
And:
‘... [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other ... .’ ”	
[12]	The Deputy President did not provide any indication of her reasons for preferring one expert over the other. In the submissions for the Regulator it was contended that the acceptance of Dr Nutting’s views were supported by a set of what were called reasons by the Regulator. The matters referred to by the Regulator were included in the decision of the Deputy President as part of her description of all the evidence given in the hearing.   In the Regulator’s written submissions there are 15 matters set out which are said to support Dr Nutting’s evidence over that of Dr Shaw’s. That may very well be correct, but none of those were reasons given by the Deputy President for her decision. The fact that these matters have been set out in the decision does not, without more, constitute an adequate explanation for the decision made.
[13]	It is not suggested that the Deputy President should have engaged in a meticulous analysis and carried into her decision a detailed exposition of every aspect of the evidence and arguments. The Deputy President has summarised the evidence and the submissions made to her. Unfortunately, the connection between the evidence and the submissions and the decision made is lacking.  
[14]	The absence of any reasons to support the fundamental part of the Deputy President’s decision is an error and an error which, by itself, justifies the granting of this appeal. It is unnecessary, in the circumstances, to consider the other grounds of appeal.  
Conclusion
[15]	The appeal is allowed. The matter is remitted to the Queensland Industrial Relations Commission to determine the matter according to law.