Roberts v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 167
•22 October 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Robynjean Roberts v Simon Blackwood (Workers' | ||||
| Compensation Regulator) [2014] QIRC 167 | |||||
| PARTIES: | Robynjean Roberts | ||||
| (Applicant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2014/210 | ||||
| PROCEEDING: | Application for extension of time | ||||
| DELIVERED ON: | 22 October 2014 | ||||
| HEARING DATE: | 12 September 2014 | ||||
| MEMBER: | Industrial Commissioner Black | ||||
| ORDERS - : |
| ||||
| CATCHWORDS: | WORKERS' COMPENSATION – Application for | ||||
| time limit imposed by s 550(1)(a) to be waived. | |||||
| CASES: | Workers' Compensation and Rehabilitation Act 2003 | ||||
| s550 Carmody v WorkCover Queensland (1998) 157 QGIG 119 Steven Pearce v Q-COMP (WC/2010/81) - Decision < Taylor v Q-COMP (2008) 188 QGIG 298 | |||||
| McQuade and Hayes v WorkCover Queensland | |||||
| (2000) 165 QGIG 126 Q-COMP v Aqueen Teng Deng (C/2010/56) - Decision < | |||||
| APPEARANCES: | Ms R. Roberts, self-represented, the Applicant Mr S. McLeod, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent | ||||
| Decision |
Background
[1] Ms Robynjean Roberts (the applicant) lodged an application for workers’
compensation with WorkCover on 1 June 2013. The claim was accepted by WorkCover in respect to a "left shoulder injury and bilateral elbow injury" sustained on 27 May 2013. However in a decision dated 16 September 2013 WorkCover decided to cease the payment of benefits to the applicant. In response the applicant
sought a review of the decision by the Workers’ Compensation Regulator (the
regulator). While the regulator referred the matter back to WorkCover for further consideration, on 26 February 2014 WorkCover confirmed its decision to terminate entitlements. In a decision dated 26 March 2014 the regulator declined to alter
WorkCover’s decision upon review.
[2] The applicant filed an appeal on 30 June 2014 against the decision of the regulator
dated 26 March 2014. Pursuant to section 550(1)(a) of the Workers’ Compensation
and Rehabilitation Act 2003 (the Act), the appeal had to be brought within 20
business days after the applicant received notice of the regulator’s decision. The
appeal should have been lodged (subject to the actual date of receipt of the decision) by 23 April 2014. The appeal was therefore lodged out of time. The applicant now requests that the Commission exercise its discretion to extend time for lodgment, and allow her appeal to be heard and determined on its merits.
[3] On 28 February 2014 the applicant applied on compassionate grounds to access part of her superannuation entitlement to fund an operation on her left shoulder. While the applicant received funds from QSuper on 7 April 2014, she was unable to proceed with her shoulder operation until 16 May 2014 as her treating orthopedic surgeon (Dr Shaw) was away on leave. It was not until a week or so after the day of the operation that the applicant became aware that the surgical findings were not
consistent with previous ultrasound based findings to the effect that the applicant’s
shoulder pain was caused by calcific tendinitis. Immediately following the operation the applicant was pre-occupied with her recovery from surgery and was required to keep her arm in a sling which restricted her mobility. Not long after the applicant was able to turn her mind to the implications of the post-operative disclosure that her shoulder condition was not affected by calcium. These factors, together with an unfamiliarity with procedures, explained why the applicant did not
lodge her appeal against the regulator’s decision until 30 June 2014.
Relevant Case Law
[4] Section 550(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) provides as follows:
"(1) The appeal must be made -
(a) if the appeal is about a review decision - within 20 business days after the appellant receives the notice of the review decision; …".
[5] In Carmody v WorkCover Queensland[1] de Jersey P held that an application to extend time could be considered under the broad discretion available to the Court under the then section 346 of the Workplace Relations Act 1997. His Honour said that the following considerations were relevant to the exercise of a discretion about whether to extend time:
[1]
the extent of the delay; the explanation for the delay; prejudice to the Respondent; prejudice to the Appellant; enthusiasm for prosecuting the Appeal; and merits of the Appeal.
[6] Subsequently in Steven Pearce v Q-COMP[2] Hall P concluded that the time limit imposed by s. 550(1)(a) of the Act could be waived on the grounds of substantial compliance or special circumstances. The relevant extracts from the decision are set out below:
[2] Steven Pearce v Q-COMP (WC/2010/81) - Decision <
" [3] The Commission dealt with the matter on the basis that the Commission had power to extend time. The earlier decision in Paul Taylor v Q-
3
COMP and the decision of this Court in James McQuade and Jeffrey 4
Hayes v WorkCover Queensland, are based on the distinction between
mandatory and directory legislation. A decade later and in light of the
authorities upon the comparable time limit at s. 542(1) of the Act (which
authorities are conveniently gathered together in Q-COMP v Aqueen
5
Teng Deng), it is appropriate to abandon the language of "extension of time" and to assert no more that, the time limit at s. 550(1)(a) of the Act may be waived on the grounds of substantial compliance or special circumstance.
[4] In some cases the test at [3] and the traditional "extension of time" tests will yield different results. The apparent strength of a potential appellant's underlying case is not necessarily decisive of the question whether non-compliance with the time limit should be waived or excused. However, that consideration is of no moment here. The Commission was satisfied that the underlying case was weak. It would be wrong to go behind the Legislature's assessment that justice will best be served if a time limit of 20 business days is observed, is insisted upon and to hear a case, which in all likelihood, will fail. "
Decision
[7] When the appeal was lodged on 30 June 2014, it was 47 business days out of time. The applicant acknowledged that she had read the decision of the regulator and that the decision included a final paragraph dealing with appeal rights which informed her that she had 20 business days from the date of receipt of the decision to lodge an appeal with the Queensland Industrial Relations Commission. The applicant conceded in her evidence that she was aware of her appeal rights but that at the time she did not have any evidence upon which she could prosecute an appeal. She said that if the surgery on May 16 2014 did not establish that calcium was not a factor in the shoulder condition, there would have been no appeal. She also said that her main focus at the time was to alleviate the pain and discomfort caused by her left shoulder condition. Finally the applicant accepted in her evidence that while she was dissatisfied with the decision when it was issued, she took a conscious decision not to lodge an appeal for the reasons identified earlier in this paragraph.
[8] The applicant ultimately decided to appeal after she received the results of surgery completed on her left shoulder on 16 May 2014. The procedure revealed that while
the applicant’s left shoulder condition involved bursitis, it did not disclose the
presence of any calcific deposit. This outcome was not consistent with earlier ultrasound findings which demonstrated the presence of calcific tendonitis. The
applicant’s reasoning was to the effect that her left shoulder claim was first accepted
by WorkCover on the basis of a diagnosis of bursitis and impingement, however WorkCover subsequently stopped payments when an independent medical examination resulted in a diagnosis of calcific tendonitis. In these circumstances the applicant concluded that had the medical examination correctly assessed the shoulder as not being affected by a calcific deposit, her benefits would not have been stopped. This was the circumstance that she now sought to address through her appeal.
[9] A close review of the history of the applicant’s claim does not however support her reasoning. The starting point is a review of the applicant’s WorkCover claim. This
claim was lodged on or about 1 June 2013 and accepted by WorkCover in respect to a "left shoulder injury and bilateral elbow injury" sustained on 27 May 2013 as a result of the applicant using her left hand to answer the phone and tilting her head and using her left shoulder to cradle the phone. Because of ongoing pain and discomfort, WorkCover referred the applicant to Dr Joshi for an independent medical examination on 10 September 2013. As part of the examination the
applicant undertook an ultrasound of her left shoulder. Dr Joshi’s report, which is in
the evidence as Exhibit 4, included the following paragraph:
"The ultrasound of left shoulder performed on 5/9/13 is reported as having
calcific tendinopathy of supraspinatus and subscapularis. The x-ray of the left
shoulder performed on the same day was normal. As mentioned the
ultrasound of the left shoulder performed in September 2011 also reported ashaving calcific tendonitis of the left shoulder".
Dr Joshi then concluded that:
"The clinical findings are consistent with calcific tendinitis of the left
shoulder. This is an aggravation of a pre-existing condition. In my opinion
this is a constitutional condition and unrelated to her work. "
[10] In essence the report of Dr Joshi established:
(i) The applicant’s shoulder injury was not caused by work related activities
on or around 27 May 2013;
(ii) The applicant’s left shoulder condition was present at least since
September 2011;
(iii) That the applicant’s current shoulder condition was to be considered an
aggravation of the pre-existing condition.
In terms of the aggravation of a pre-existing condition, Dr Joshi also concluded that the September 2013 diagnosis of calcific tendonitis was not consistent with the mechanism of injury described by the applicant. That is, Dr Joshi did not accept that the aggravation of the pre-existing shoulder condition by the applicant would have been caused by activities associated with answering the phone.
[11] It is apparent then that the 16 September 2013 decision of WorkCover to stop payments was not based on the ultrasound findings which indicated the presence of
calcium but by the discovery that the applicant’s shoulder condition was present as
far back as 2 September 2011. The critical conclusion in the report of Dr Joshi was
that the applicant’s current ultrasound findings (5 September 2013) were similar to
the findings of a previous ultrasound taken on 2 September 2011. This meant that the applicant did not sustain a shoulder injury at work on 27 May 2013 as claimed by the applicant in her application for workers compensation dated 1 June 2013, but in fact had sustained this injury at some previous date no later than 2 September 2011.
[12] The effect of this conclusion was that, if the current shoulder condition were related, it could only be categorised as an aggravation of a pre-existing condition. The other
outcome, of course, was that the applicant’s underlying shoulder condition could not
have, as was claimed, been caused by work place activities occurring on or about 27
May 2013. It was predictable in these circumstances, including Dr Joshi’s view that
any aggravation was not work related, that WorkCover arrived at decision to stop
the payment of benefits.[13] The events occurring after the 16 September 2013 decision by WorkCover to stop the payment of benefits are not particularly significant in the determination of the
applicant’s appeal. Nevertheless the significant or relevant matters are summarised
as follows:
(i) The applicant made an application to the regulator for a review of the WorkCover decision dated 16 September 2013;
(ii) In a decision dated 18 December 2013 the regulator returned the matter to WorkCover for further consideration;
(iii) In its further consideration of the matter WorkCover asked the
applicant’s treating surgeon, Dr Shaw, if further medical treatment was required for the management of the applicant’s injuries. In his response
on 13 January 2014 Dr Shaw said inter alia that the "left shoulder
impingement may require acromioplasty but this condition is unlikely to
be significantly work related";(iv) In its further consideration of the matter WorkCover asked Dr Shaw whether further medical treatment was required for the management of
the applicant’s injuries. In his response on 28 January 2014 Dr Shaw said inter alia that the applicant’s left shoulder needs surgery, that the
calcific tendinitis was not work related because the applicant had this
condition for two years, and that repetitive left arm activities were
aggravating her condition. Dr Shaw also stated that the left shoulder
condition was partially and significantly related to some work practices;(v) WorkCover concluded its review of its 16 September 2013 decision and issued a fresh decision on 4 February 2014. However because of errors in expression it was necessary to re-issue the decision on 26 February
2014. In this decision WorkCover noted in respect to the views
expressed by Dr Shaw on 28 January 2014 that "the surgery you require
is to treat the underlying pre-existing condition". WorkCover confirmed
its earlier decision to terminate entitlements; and(vi) The applicant made an application to the regulator for a review of the 26 February 2014 decision of WorkCover, and on 26 March 2014 the regulator issued a decision confirming the decision of WorkCover to
terminate the applicant’s entitlements.
[14] A review of the merit considerations available during the proceedings indicates that
the applicant’s prospects on appeal are poor. The applicant’s principal reason for wanting to pursue an appeal against the regulator’s decision is to secure
reimbursement for the cost the surgery completed by Dr Shaw on 16 May 2014. While Dr Shaw and Dr Joshi are in disagreement over whether the aggravation of the shoulder condition is work related both have expressed the opinion that the
applicant’s underlying shoulder condition is not work related. In this regard both
rely on the ultrasound finding in September 2011 which established that the
applicant’s shoulder condition was the same as what it was in 2013. Therefore the
underlying injury could not have been sustained at work in 2013 as claimed by the
applicant. Given that Dr Shaw’s surgery on 16 May 2014 was directed at resolving
the underlying condition (admittedly made worse by the any aggravation) it will be very difficult for the applicant to establish a case on appeal that the purpose of the surgery was to remedy a work related injury.
[15] I now turn to a consideration of the other principles articulated by de Jersey P in
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Carmody. The delay in lodging the appeal was significant. However the reason for the delay is plausible. It would have been a significant consideration had the post-
operative report rendered the regulator’s decision erroneous. However while this
development might leave open the applicant’s prospects of securing an extension of time, it only does so to the extent that the applicant’s reasoning around the factor is
sound. Consequently the explanation for the delay does not in the end result
advance the applicant’s cause. The prejudice to the applicant arising from a decision
not to extend time is self-evident, however the extent of the prejudice is modified by
my earlier finding that the applicant’s prospects of succeeding with a substantive
appeal are weak. I accept that the respondent will not be prejudiced in a significant
way by a decision to extend time. I do not doubt the applicant’s enthusiasm for
prosecuting her appeal, but again, if she were to prosecute her appeal on the grounds
foreshadowed in the proceedings before me, she would be unlikely to succeed.[16] The application of the tests outlined in Carmody[7] does not lead to a determination to extend time. Further I am unable to conclude, having regard to all the circumstances of this case, that the statutory time limit should be waived on the grounds of substantial compliance or special circumstances. There are no special circumstances upon which I could justify a decision to extend time.
[7][17] The application to waive the time limit prescribed by s 550(1)(a) is dismissed.
Carmody v WorkCover Queensland (1998) 157 QGIG 119
3
Paul Taylor v Q-COMP (2008) 188 QGIG 298
4
James McQuade and Jeffrey Hayes v WorkCover Queensland (2000) 165 QGIG 126
5 Q-COMP v Aqueen Teng Deng (C/2010/56) - Decision <
6
Carmody v WorkCover Queensland (1998) 157 QGIG 119
Carmody v WorkCover Queensland (1998) 157 QGIG 119
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