Del Bono v Workers' Compensation Regulator - [2022] QIRC 453

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Del Bono v Workers' Compensation Regulator [2022] QIRC 453
PARTIES:	Del Bono, Marco (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2021/192
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON: HEARING DATES:	23 November 2022 7 October 2022 2 November 2022
MEMBER: HEARD AT	Hartigan IC Brisbane
ORDER:	1. The appeal is allowed. 2. The decision of the Regulator dated 17 November 2021 is set aside. 3. The application is returned to the Regulator for further consideration on the basis that Mr Del Bono is a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act2003 (Qld).
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF THE WORKERS' COMPENSATION REGULATOR – ENTITLEMENT TO COMPENSATION – whether appellant was a 'worker' for the purposes of s 11 of the Act – lack of corroborating evidence as appellant is 92 years old and the event in question occurred between 67 and 72 years ago – the application of s 36(a) of the Act is not in contention – Appellant found to be a 'worker' who had worked at Mount Isa Mines Limited
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11 Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Act 2013, s 71 Charters Tower Regional Council v Workers' Compensation Regulator [2019] QIRC 027 Aldi Stores (A Limited Partnership) v Workers' Compensation Regulator [2019] QIRC 51 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031 Zegenhagen v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 037 Ambulance Service of New South Wales v Anderson [2011] NSW WCCPD 3
APPEARANCES:	Mr M. Black, Counsel, instructed by Maurice Blackburn Lawyers for the Appellant Mr S. McLeod, KC, directly instructed by the Workers' Compensation Regulator

Reasons for Decision

Introduction

The Appellant in this matter, Mr Del Bono, seeks to appeal a decision of the Workers' Compensation Regulator ('the Regulator') dated 17 November 2021 confirming an earlier decision by XtraCare ('the Insurer') to reject Mr Del Bono’s application for workers' compensation.
It is agreed between the parties, that the sole issue for determination in this appeal is whether Mr Del Bono was a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act2003 (Qld) ('the Act'). Mr Del Bono contends that he was a 'worker' on the basis that he was employed by Mount Isa Mines Limited ('MIM') between 1950 and 1955.
The Appellant bears the onus of proving that he was a 'worker' within the meaning of the Act.[1] An appeal of this type, pursuant to Chapter 13, Part 3 of the Act, is a hearing de novo.[2]
[1] Charters Tower Regional Council v Workers' Compensation Regulator [2019] QIRC 027, [61] and [62]; Aldi Stores (A Limited Partnership) v Workers' Compensation Regulator [2019] QIRC 51.
[2] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, [27].

Relevant background

Mr Del Bono is 92 years old and was born…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QIRC 453
Decision Date: 23 November 2022 7 October 2022 2 November 2022

CaseChat Overview and Summary

The appellant, Mr Del Bono, appealed a decision of the Workers' Compensation Regulator which denied him entitlement to compensation for an injury sustained at work. The Regulator had found that Mr Del Bono was not a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 (Qld), and therefore, he was not entitled to compensation. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issue was whether Mr Del Bono was a 'worker' for the purposes of s 11 of the Act. Given the passage of time and the absence of corroborating evidence, it was difficult to establish the precise nature of Mr Del Bono's employment with Mount Isa Mines Limited. The Regulator found that while there was sufficient evidence to show that Mr Del Bono had worked at Mount Isa Mines Limited, there was not enough evidence to confirm the duration or nature of his employment. The Tribunal had to determine if the lack of corroborating evidence due to the appellant's age and the recency of the event should preclude him from being recognised as a 'worker'.

The Tribunal held that despite the lack of corroborating evidence, the onus was on the Regulator to prove that Mr Del Bono was not a 'worker', and this had not been achieved. The application of s 36(a) of the Act, which relates to the definition of a 'worker', was not in contention, and it was clear that Mr Del Bono had worked at Mount Isa Mines Limited. The Tribunal concluded that the Regulator's decision was unreasonable and set it aside. The Tribunal found that Mr Del Bono was indeed a 'worker' and returned the application to the Regulator for further consideration in light of this finding.

The Tribunal allowed the appeal, set aside the Regulator's decision and ordered the application to be returned to the Regulator for reconsideration. The Tribunal found that Mr Del Bono was a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Regulator dated 17 November 2021 is set aside.

3. The application is returned to the Regulator for further consideration on the basis that Mr Del Bono is a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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