Fligic v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 127
•21 August 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Fligic v Simon Blackwood (Workers' Compensation | ||||
| Regulator) [2014] QIRC 127 | |||||
| PARTIES: | Fligic, Innes Ivana | ||||
| (Applicant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2014/173 | ||||
| PROCEEDING: | Application to waive compliance with s 550(1)(a) | ||||
| DELIVERED ON: | 21 August 2014 | ||||
| HEARING DATES: | 27 June and 22 July 2014 | ||||
| MEMBER: | Industrial Commissioner Fisher | ||||
| ORDERS : |
| ||||
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Application for leave to file appeal out of time - whether applicant has complied with statutory time limit - whether special circumstances exist to waive compliance with s 550(1)(a) - extent of the delay - explanation for the delay - potential grounds of prejudice - enthusiasm for prosecuting the appeal - merits of the appeal - legislature determined appeal period must be respected - whether the factors considered singularly or collectively - determined applicant unable to establish special circumstances - application refused | ||||
| CASES: | Workers' Compensation and Rehabilitation Act | ||||
| 2003, s 110, s 550 (1)(a) Compare Grace Borg v Q-COMP (WC/2012/127 - | |||||
| Decision) | |||||
| APPEARANCES: | Mr M. Holmes, MurphySchmidt Lawyers for the Applicant. Mr P.B. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator). | ||||
| Decision |
[1] Innes Fligic was heavily pregnant when, on 4 February 2014, she received an email from the Workers' Compensation Regulator (the Regulator) advising of its decision to confirm the decision of WorkCover Queensland (WorkCover) to reject her application for compensation. The Regulator's decision, also dated 4 February 2014, was attached to the email. Ms Fligic had 20 business days in which to file an appeal in the Queensland Industrial Relations Commission (the Commission). The appeal was not filed until 23 May 2014. Ms Fligic has made an application seeking that the Commission exercise its discretion and waive compliance with the statutory time limit on the grounds of special circumstances.
[2] The special circumstances relied on by Ms Fligic are:
the unhelpful legal advice with which she was provided; no prior knowledge of the right to appeal; the difficulty in obtaining legal advice; and the health effects of both the primary condition for which she made an application for compensation and from the overdue date of the birth of her child and the complications arising thereafter.
[3] The application is opposed by the Regulator, which argues that the issues either individually or collectively do not amount to special circumstances.
The Factors
[4] Although the Commission is required to find special circumstances in order to waive compliance with the statutory time limit, in considering such applications reference is usually made to the factors considered in extension of time cases.
(a) Extent of the delay [5] Section 550(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 provides that the appeal is to be made within 20 business days after the appellant receives notice of the review decision. The appellant may, within that period, ask the Regulator to allow further time to appeal. In this case, Ms Fligic did not comply with the statutory time period nor did she ask the Regulator to allow further time to appeal.
[6] The expiry of the time for filing the appeal was 4 March 2014. The appeal was filed 56 business days late. The Regulator submits that this is a substantial delay in the context of effectively a one month limitation period.
(b) The explanation for the delay [7] Ms Fligic lodged an application for workers' compensation on 19 July 2013. By letter dated 10 October 2013, Ms Fligic received advice from WorkCover that her application had been rejected.
[8] On the same date Ms Fligic received advice that her employment had been terminated. Later that month she consulted Shine Lawyers who advised that she could seek a review of the WorkCover decision and lodge a complaint with the Anti-Discrimination Commission of Queensland (ADCQ). Ms Fligic filed the complaint to the ADCQ herself on or about 31 October 2013. On 9 December 2013 Shine Lawyers filed an application for review of the WorkCover decision. However, Shine Lawyers advised Ms Fligic sometime before the end of December 2013 that they could no longer act for her because a conflict of interest had arisen.
[9] On 21 January 2014, Ms Fligic contacted Trilby Misso asking for assistance both in respect of the workers' compensation matter and the ADCQ complaint. That firm was unable to assist and advised her to contact Legal Aid Queensland. However, Ms Fligic had not taken any steps to do so by the time she received the email and review decision from the Regulator.
[10] Ms Fligic gave evidence that on receiving the email from the Regulator on her i-phone, she opened the attached decision but only read that part which said that her application for compensation had been rejected. She became upset and could not comprehend the whole decision. Ms Fligic did not appreciate that she had a right to appeal the Regulator's decision or there was a time limit in which to file the appeal. At that time, she was one week away from her due date and was unwell as a result of her pregnancy.
[11] Although Ms Fligic's due date was 10 February 2014, she was induced on 26 February 2014. Ms Fligic and her baby were discharged on 3 March 2014, however, Ms Fligic returned to hospital on or about 5 March 2014 where she remained overnight due to complications arising from the birth. She was referred for radiology on 26 March 2014 due to continuing complications.
[12] Ms Fligic contacted Legal Aid in March 2014 and was referred to the Queensland Working Women's Centre for the discrimination complaint and to Murphy Schmidt Solicitors for the workers' compensation matter. On 9 April 2014, Ms Fligic contacted Murphy Schmidt Solicitors and met with a Solicitor of the firm, Matthew Holmes, on 16 April 2014. At that time she was advised of the time limit for filing the appeal. Ms Fligic said that this was the first time she had been advised of her right to file an appeal and that it was out of time. She engaged Murphy Schmidt Solicitors on 22 April 2014 to act both in respect of the ADCQ proceedings and the workers' compensation matter.
[13] Proceedings in the ADCQ were adjourned in March/April due to Ms Fligic's health. Mr Holmes attended the rescheduled conciliation conference on 29 April 2014 and continued to negotiate with representatives of the employer over the next few days. On 2 May 2014, terms of settlement were agreed and forwarded to both parties for signature. The deed was finalised on 13 May 2014.
[14] Thereafter attention turned to the appeal against the review decision. The appeal was filed on 23 May 2014.
(c) Prejudice [15] Although not strongly pressed, the Regulator raises two potential grounds of prejudice were the time to be waived. These concern the ability to locate witnesses from the business given the employer has had a turnover of staff and the effect of giving evidence when they may have had a legitimate expectation the matter had been finalised.
(d) Enthusiasm for prosecuting the appeal [16] The Regulator submits that it is open to the Commission to draw the inference that Ms Fligic made a deliberate decision to pursue the ADCQ matter in preference to the appeal. Further, the failure to take steps to protect her rights following the receipt of the review decision confirms her lack of enthusiasm for prosecuting the appeal.
[17] The Applicant contends this is not a case where she has made a conscious decision and later regretted it. Here, she was not aware of her appeal rights until 16 April 2014. Although Ms Fligic pursued the ADCQ matter first, this was a tactical decision given the negotiations that were proceeding with representatives of her former employer at the time. The Applicant did not want to prejudice her position with respect to an appeal while those negotiations were ongoing.
(e) Merits of the appeal [18] In his Affidavit, Mr Holmes stated that although he was still undertaking investigations and taking statements, he believed Ms Fligic had good prospects of success. In submissions, he said that the complaint made to the ADCQ raised the same issues as contained in the workers' compensation appeal.
[19] The Regulator submits that the Commission could not be satisfied on the balance of probabilities that Ms Fligic has good prospects of success. There is some doubt, based on information contained in an attachment to Ms Fligic's Affidavit, as to whether there is a work related injury or whether it may be an aggravation. Further, on the basis of the information summarised in the review decision, there appears to be solid grounds for arguing that the injury should be excluded on the grounds that reasonable management action was taken in a reasonable way.
Conclusion
[20] The starting point in these types of applications is that the Legislature has determined an appeal period and that must be respected. Where an appellant does not file an appeal within the prescribed time then they must demonstrate that either there has been substantial compliance or that special circumstances exist in order for the Commission to exercise its discretion and waive the time for compliance. In this case, where the ground of substantial compliance has not been argued, the Commission needs to determine whether special circumstances have been established.
[21] In examining this question, it should be noted that each case turns on its own facts and circumstances. Although there are cases decided in this Commission extending time in which to file an appeal or finding special circumstances for periods in excess of that currently under consideration, each case is different and those earlier cases can only provide general guidance as to the types of matters considered by the Commission in reaching a decision. An application claiming the existence of special circumstances requires the various factors to be weighed and balanced. Ultimately, because what is involved is an exercise of discretion, the Commission has to be persuaded from the matters raised that special circumstances exist so as to waive compliance with the statutory provisions.
[22] Although the parties have largely agreed on the factors to be considered, the Applicant contends that the Commission should look at the combined effect of those factors in arriving at its decision. The Regulator contends that whether the Commission considers the factors individually or collectively, then the decision is the same, viz., that no special circumstances exist so as to require the Commission to exercise its discretion.
[23] The case for the Applicant is essentially that despite seeking legal advice about her rights following the termination of her employment and after she had made an application for workers' compensation, she was not advised of any rights of appeal arising from an adverse review decision. Ms Fligic became upset when reading the review decision, did not read it in its entirety and hence did not appreciate that there was a defined period in which to file an appeal. Further, at that time Ms Fligic was focussed on the birth of her baby and when he was delivered, she was pre-occupied with various health issues that followed.
[24] Ms Fligic made various attempts in March/April 2014 to seek advice about both her anti-discrimination complaint and the review decision. It was only when she met with Mr Holmes on 16 April 2014 that her rights following the review decision were made known to her.
[25] As the Regulator noted in its submissions, when the review decision was sent to Ms Fligic it was accompanied by an email which stated, in essence, that a party aggrieved by the decision could appeal to the Commission. It went on to state that those appeal rights were set out in the decision. Certainly, those were not set out in full until the last page of the 15 page review decision, but nonetheless the email identified that appeal rights existed and could be found in the decision.
[26] Ms Fligic deposed to receiving the email from the Regulator and opening the
attached decision. She may not have previously received legal advice about her
right to appeal any adverse decision made by the Regulator, however, she was made
aware by the Regulator on 4 February 2014 that appeal rights existed. Even
accepting that Ms Fligic became upset on reading that her application for
compensation had been rejected, no evidence is before the Commission that her
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health was such that she was incapable of dealing with the decision.
[27] Although the medical records do not show that the birth was complicated, it is clear that Ms Fligic had various health issues to attend to as well as caring for her new born baby in the period between the birth and late March 2014. Ms Fligic had moved back to her parents' home to obtain assistance in caring for her child and to support her in dealing with her legal matters. It is not unreasonable in the circumstances for Ms Fligic's attention at that time to be focussed on her own health issues and her baby's welfare and not the workers' compensation issues. However, given that she had returned home in part to be supported in her legal matters, it is clear that she had access to assistance, even if it was only to read the review decision and to clarify her appeal rights. No evidence of family assistance was provided to the Commission.
[28] Once her health issues were under control Ms Fligic commenced to deal with her outstanding ADCQ claim. Her consultations with or enquiries made to various legal firms prior to the birth of her child are not relevant to determining her enthusiasm for prosecuting the appeal after receipt of the review decision. Further, they have no contributory effect in determining whether special circumstances exist.
[29] Ms Fligic said that it was not until she met with Mr Holmes on 16 April 2014 that she realised she could appeal and there was a time frame. However, for reasons set out earlier, I am satisfied that she had been notified that a right of appeal existed by the email from the Regulator dated 4 February 2014. Had she checked the decision as advised in the email she would have ascertained that she had 20 business days in which to file the appeal. Further, that advice could have been sought from the review officer on her appeal rights. That Ms Fligic did not take steps to understand her appeal rights on receipt of correspondence from the Regulator when they were readily accessible and family assistance was available, does not help in establishing the existence of special circumstances.
[30] Mr Holmes said (from the bar table) that on receiving instructions there was limited time to prepare for the ADCQ conciliation conference because it was scheduled six business days from his first consultation with Ms Fligic. The Commission acknowledges that the conciliation conference was the most pressing matter given its scheduling. However, it is clear that a strategic decision was taken to first resolve the ADCQ complaint. The workers' compensation appeal was put in abeyance so as to not prejudice the outcome of the ADCQ complaint. Only when that was resolved did attention turn to the workers' compensation appeal.
[31] The Regulator took issue with this strategy, arguing that s 110 of the Act protected Ms Fligic's rights to proceed with a statutory claim. That section provides that where a worker sustains an injury, the worker cannot relinquish an entitlement to workers' compensation and an agreement purporting to relinquish an entitlement has no force or effect. In the circumstances, Ms Fligic "sat on her hands" for five weeks and pursued other litigation when she knew the appeal period had already expired. In the submissions of the Regulator, that does not constitute special circumstances.
[32] The Applicant is unable to satisfactorily counter the merit of that submission.
[33] On the Applicant's own submissions, the merits of the appeal are indeterminable.
[34] Considering all of the matters raised, whether singularly or collectively, I consider the Applicant has been unable to establish special circumstances. The Commission is not persuaded to exercise its discretion to waive time for compliance.
[35] The application is refused.
[36] Costs are reserved.
[37] Order accordingly.
1 Compare Grace Borg v Q-COMP (WC/2012/127 - Decision)
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