Joanne Hilliar v Simon Blackwood (Workers' Compensation Regulator)

[2014] QIRC 146

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:        

Joanne Hilliar v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 146

PARTIES:- 

Joanne Hilliar
(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)
(Respondent)

CASE NO:

WC/2014/138

PROCEEDING:

Appeal against a decision of the Regulator

DELIVERED ON:

10 September 2014

HEARING DATE: 

5 September 2013

MEMBER:

Industrial Commissioner Black

ORDERS:

1.      The decision of the regulator dated 24 March 2014 is set aside;

2.      The matter is returned to the regulator with directions;

3.      No order as to costs.

CATCHWORDS:

WORKERS' COMPENSATION - Appeal against decision – psychological injury - whether injury arose out of reasonable management action taken in a reasonable way.

CASES:

Workers' Compensation Act 2003 s550

APPEARANCES:

Mr. J.P. Morris of Counsel, instructed by Shine Lawyers, for the Appellant.
Mr. F. Lippett of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.

Report on Decision

1. On 23 April 2014 the appellant, Ms Joanne Maree Hilliar, lodged a notice of appeal in the Industrial Registry against a decision of the Workers’ Compensation Regulator ("the regulator") issued on 24 March 2014.  In accordance with Directions issued on 6 May 2014 the appeal was listed for hearing on 8, 9, 10, and 11 September 2014.  However in the week prior to the hearing a jurisdictional flaw was identified which required a determination by the Commission prior to the commencement of proceedings on 8 September 2014. 

1. After consulting with the parties the jurisdictional issue was listed for hearing by the Commission on 5 September 2014.  The jurisdictional issue arises from a consideration of the following circumstances:

   ·        The Appellant lodged an application for compensation on or about 20 May 2013;

   ·        The Appellant served a Notice of Claim for Damages on WorkCover on 20 August 2013;

   ·        On 8 November 2013 WorkCover decided not to accept the application for compensation and issued reasons for decision;

   ·        On 7 February 2014 the appellant filed an application for review of the decision of WorkCover made 8 November 2013;

   ·        The review unit of the regulator issued a decision on 24 March 2014 confirming the decision of WorkCover;

   ·        On 23 April 2014 the appellant lodged a notice of appeal with the Industrial Registrar.

1. The jurisdictional issue that has emerged arises from the regulator's review unit decision dated 24 March 2014 in which the outcome was summarised in the following terms:

"I have confirmed the decision of WorkCover to reject your notice of claim for damages, in accordance with section 32(5) of the Workers’ Compensation and Rehabilitation Act 2003. "

1. The decision commenced with a statement that drew attention to the application for review received by the regulator on 7 February 2014 and then stated that the application was "in relation to the decision by WorkCover Queensland to reject your notice of claim for damages.”  The decision went on to say, under a heading of "Background" that the appellant "lodged a Notice of Claim for Damages with WorkCover dated 20 August 2013 for a psychological injury sustained over a period of time from 5 September 2010 … .".  Later, under the heading "Issue for determination", the decision stated that the appellant had "not previously lodged an application for compensation for the injury. "

1. In the circumstances, the review unit decision appears to have been made in respect to a notice of claim for damages dated 20 August 2013, not in respect to an application for compensation dated 20 May 2013.  The difficulty is, as far as can be ascertained, that WorkCover has never issued any decision in respect to a notice of claims for damages dated 20 August 2013.

2. The jurisdiction of the Commission, in respect of an appeal, is enlivened by there being a review decision of the regulator.  It goes without saying the decision must be valid to enliven jurisdiction.  As it presently stands the document purporting to establish jurisdiction is flawed in that it reviews, on its face, a decision that never occurred.

1. Further pursuant to section 540 of the Workers’ Compensation and Rehabilitation Act 2003, in purporting to review a document that had not been the subject of any decision by WorkCover, the regulator may have acted ultra vires.

1. The Commission is therefore presented with an untenable position and there is no other alternative but to set the decision of the review unit aside and return the matter to the regulator with a direction that a decision be made in respect to an application for review lodged by the appellant on 7 February 2014 and which was the subject of a decision of WorkCover dated 8 November 2013.

Decision

1. At the conclusion of proceedings on 5 September 2014, and after considering the submissions of the parties, the Commission issued the following Order pursuant to Section 558(1)(d) of the Act:

(a)     The regulator’s decision dated 24^th March 2014 that is the subject of the appeal is set aside.

(b)     The matter is returned to the regulator with directions that:

(i)     the appellant be given 21 days to provide any further material and submissions to the regulator; and

(ii)     the regulator make a decision in connection with the application for review lodged by the appellant on 7^th February 2014 seeking review of the decision of WorkCover made on 8 November 2013 rejecting the appellant's application for compensation.

(c)     There is no order as to costs.  The parties are at liberty to apply at a future date if they wish.