Kalecinski v Mercy Community

[2024] QSC 49

SUPREME COURT OF QUEENSLAND

CITATION:

Kalecinski v Mercy Community [2024] QSC 49

PARTIES:

WOJCIECH HENRYK KALECINSKI

(Plaintiff/Respondent)
v

MERCY COMMUNITY FORMERLY MERCY HEALTH AND AGED CARE CENTRAL QUEENSLAND

(Applicant/Defendant)

FILE NO/S:

1310/23

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVEREDON:

28 March 2024

DELIVEREDAT:

Rockhampton

HEARING DATE:

13 March 2024

JUDGE:

Crow J

ORDER:

1.  The plaintiffs claim is set aside

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS – RIGHT OF APPEAL AND RIGHT

TO REVIEW – where the plaintiff had a rejected statutory claim by WorkCover Queensland – were the plaintiff unsuccessfully appealed the rejected statutory claim by WorkCover Queensland to the Workers’ Compensation Regulator within the statutory time limit – where the plaintiff did not appeal the decision of Workers’ Compensation Regulator to the Queensland Industrial relations Commission within the 20 business days advised by the Regulator – where approximately 3 years later, the plaintiff files a statement of claim in the Supreme Court – where the defendant seeks orders by the Court striking out the statement of claim and setting aside any subsequent claim for damages arising from the subject injury – whether the plaintiffs title to sue can be cured.

Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31

Uniform Civil Procedure Rules 1999 (Qld), r 16, r 375 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 237

Phipps v Australian Leisure and Hospitality Group Ltd & Anor

[2007] QCA 130, followed

Van Der Berg v Key Solutions & Anor [2020] QSC 262, followed

COUNSEL:

SP Sapsford for the applicant

The respondent appeared in person

SOLICITORS:

McInnes Wilson for the applicant

1. Mr Kalecinski was employed by the respondent as a maintenance assistant from 6 February 2017 to 23 August 2019. Mr Kalecinski alleges that he suffered an injury to his back lifting a heavy tent in the course of his employment at his employer’s premises in Rockhampton on 18 May 2018.

2. Mr Kalecinski lodged an application for statutory WorkCover benefits on 20 July 2018, in which he alleged he reported the injury to his employer by one of its supervisors on 21 May 2018. In addition to lodging his application, WorkCover received a medical certificate from Dr Adikarige dated 19 July 2018 stating that Mr Kalecinski suffered from “canalstenosis at L4/5 with right foot drop due to lifting tents at work weighing 200kg.”

3. Mr Kalecinski supported his application with a statement to WorkCover. WorkCover obtained statements from the respondent’s supervisors who agreed that they spoke to Mr Kalecinski on 21 May 2018. Both supervisors denied that Mr Kalencinski said his back was sore from lifting a tent.

4. By its decision dated 22 August 2018, WorkCover rejected the statutory claim and provided Mr Kalecinski with detailed reasons. As required by regulations, the statement of reasons included advice that Mr Kalecinski had the right to apply for review of his decision to the Workers’ Compensation Regulator. Mr Kalecinski sought a review of…