Richardson v Workers' Compensation Regulator

[2016] QIRC 2

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  

Richardson v Workers' Compensation Regulator [2016] QIRC 002

PARTIES:

Richardson, Gregory Murdoch
(Applicant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

WC/2015/266

PROCEEDING:

Application to waive time limitation period in s.550(1)(a) of the Workers' Compensation and Rehabilitation Act 2003

DELIVERED ON:

14 January 2016

HEARING

Matter dealt with on the papers

MEMBER:

Deputy President O'Connor

ORDERS  :

The time limit at s. 550(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 be waived.

CATCHWORDS:

Application to waive time limit in s. 550(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 - Application granted.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s. 550(1)(a)

Steven Pearce v Q-COMP (C/2010/64)
van der Berg v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 161

APPEARANCES:

Nil

Decision

1. This is an application by Gregory Murdoch Richardson ("the applicant") seeking an extension of time within which to file a Notice of Appeal (WC/2015/266).  The application has, by consent, been dealt with on the papers.

2. This application and the Notice of Appeal were filed on 9 October 2015.  The Reasons for Decision of the Workers' Compensation Regulator ("the Regulator"), was issued on 9 April 2015.

1. Section 550(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") provides that an Appeal must be brought within twenty business days after a person receives notice of the Regulator's Review Decision. The applicant is 111 days out of time.

2. In van der Berg v Simon Blackwood (Workers' Compensation Regulator)[1] the following view was expressed:

   [1]  van der Berg v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 161.

   "[22]Over time, the interpretation of s 550 of the Act has been infected with the same reasoning as was used in s 542 of the Act. The right under s 550(1)(a) of the Act is confined by reference to a time limit in which to appeal. Section 550 of the Act does not confer a discretion on the Commission to waive compliance. Section 550(3) makes that abundantly clear where it provides "the appellant may, within the periods mentioned in subsections, ask the respondent to allow further time to appeal".

[23]Like s 542(3) of the Act, it is the regulator who is vested with the discretion to waive time and not the Commission. In my view, nothing within s 550 grants the Commission the power to waive the time limit. It is the "Respondent" - the Workers' Compensation Regulator that is vested with the power to waive compliance and, only in circumstances where the appellant has asked for an extension within the statutory time limit.

[24]For the reasons advanced above, I am of the opinion that there is no power vested in the Commission to waive compliance with the time limit contained in s 550(1)(a) of the Act in circumstances where there has been substantial compliance or other special circumstances. There is not legislative basis for such an interpretation."

1. Notwithstanding the conclusion reached in van der Berg v Simon Blackwood (Workers' Compensation Regulator), I nevertheless feel constrained to follow the decision of Hall P in Steven Pearce v Q-Comp.

2. In Steven Pearce v Q-COMP[2] Hall P stated that it was "appropriate to abandon the language of 'extension of time' and to assert no more that (sic), the time limit at s. 550(1)(a) of the Act may be waived on the grounds of substantial compliance or special circumstances".

   [2]  Steven Pearce v Q-COMP (C/2010/64) – Decision <>

   The applicant therefore seeks a waiver of the time period in s. 550(1)(a) of the Act.

3. The grounds relied upon in this application are as follows:

·        On 21 January 2015 the applicant lodged an application with WorkCover for a left knee injury which is claimed occurred on 17 September 2014 whilst the applicant was undertaking pre-start exercises.

·        The applicant continued to work his normal roster but experienced knee pain at work although he was able to manage it.

·        The applicant was rostered off for 5 days during which time he noticed an improvement in his knee.

·        He returned to work on 30 September 2014 and continued to experience knee pain.

·        On 15 October 2014 the appellant was standing in his back yard when he experienced intense pain in his left knee.

·        On 16 October 2014 the Applicant attended on Dr Faisal Rafiq, General Practitioner and was diagnosed with a meniscal tear.

·        Dr Rafiq issued the Applicant with medical certificate certifying him as unfit for work.

·        Between October 2014 and January 2015 he had six sessions of acupuncture. Dr Rafiq referred the applicant to Dr Sean Mullen, Orthopedic Surgeon.

·        WorkCover rejected the claim for workers' compensation on 30 January 2015.

·        The Applicant sought a review of the WorkCover decision. The Regulator upheld WorkCover's decision to reject the claim.

·        The applicant's Notice of Appeal should have been lodged on or before 6 May 2015.

·        The applicant submits that the special circumstances for not filing the Notice of Appeal within the statutory time limit was due to his ability to consult with Dr Mullen until 11 June 2015.

·        The applicant submits "…that additional evidence has recently come to the knowledge of the Appellant from Dr Mullen, orthopedic surgeon, in support of the probable cause of his injury being the incident on the 17 September 2014."

·        The applicant filed a Notice of Appeal in the Industrial Registry on 26 June 2015.

1. The questions for the Commission to determine is whether the applicant has substantially complied with s 550(1)(a) of the Act; or, if that is not the case whether special circumstances exist such that the time limit in s 550(1)(a) of the Act may be waived by the Commission.

1. The factors which have exercised my mind in determining whether or not to exercise the Commission's discretion are as follows[3]:

   [3]  See: Ricky Smith v Q-Comp (WC/2012/19) where Fisher C applied the reasoning of de Jersey P (as he then was) in Carmody v WorkCover Queensland (1998) 157 QGIG 119.

·        the extent of the delay;

·        the explanation of the delay;

·        the prejudice to the applicant;

·        the prejudice to the respondent;

·        enthusiasm for prosecuting the appeal; and

·        the merits of the appeal.

1. The extent of the delay is not undue and the reasons for the delay are set out above.

2. There would be prejudice to the applicant if the Commission did not waive the time limit in s 550(1)(a) of the Act. There is no prejudice to the Regulator if the time limit is waived.

3. The applicant has shown an enthusiasm for the prosecution of his appeal.

1. It is not possible on the limited material before me to determine if the applicant's claim for workers' compensation has merits on appeal.

2. Importantly, by letter dated 22 October 2015, the Regulator has advised the Commission that it does not oppose the application.

3. On balance, I find that there are special circumstances warranting the waiver of the time period specified in s. 550(1)(a) of the Act for the filing of the applicant's Notice of Appeal.