Rowe v Q-Comp - [2011] QMC 31

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Rowe v Q-COMP [2011] QMC 31

PARTIES:

GLEN ARTHUR ROWE

(appellant)

v

Q-COMP

(respondent)

FILE NO/S:

MAG185521/10(9)

DIVISION:

Industrial Magistrates Courts

PROCEEDING:

Appeal against decision of Q-COMP

ORIGINATING COURT:

Industrial Magistrates Court at Brisbane

DELIVERED ON:

2 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 December 2010

MAGISTRATE:

Lee G

ORDER:

The appeal is dismissed. This means the appeal is not successful.

CATCHWORDS:

INDUSTRIAL LAW - WORKERS COMPENSATION – Notice of Claim for Damages for psychiatric injury – previous application for statutory compensation for psychiatric injury – whether same injury as defined in section 32 – whether precluded from seeking common law damages under s 237(1)(d) – whether WorkCover’s decision rejecting Notice of Claim for Damages a reviewable decision – whether reviewable by Q-COMP and Industrial Magistrate

Industrial Relations Act 1999 (Qld), s 242, s 349

Workers Compensation and Rehabilitation Act 2003 (Qld), s 32, s 237(1)(d), s 258(1)(a)(ii), s 258(9), s 540(1)(a)(xiii), s 541, s 548, s 561(4)

Aaveland v The Dental Board of New South Wales, unreported, 16 October 1998 No 40238/98 cited

Capuano v Q-COMP [2004] QSC 333 cited

Glen Rowe v Q-COMP [2009] 190 QGIG 93 cited

Jacobs v Woolworths [2010] QSC 24 cited

Kuligowski v Metrobus (2004) 220 CLR 363 cited

Parnell v WorkCover Queensland [2006] QSC 303 cited

Pastras v The Commonwealth [1966] 9 FLR 152 cited

Q-COMP v Coutts (2007) 185 QGIG 9 cited

Q-COMP v Glen Rowe [2009] 191 QGIG 67cited

Q-COMP v Whittaker (2006) 182 QGIG 313 cited

Watkin v GRM International Pty Ltd [2007] 1 Qd R 389; [2006] QCA 382 cited

COUNSEL:

K Fleming QC with L Willson for the applicant

G Long SC with S Gray for the respondent

SOLICITORS:

Respondent on their own behalf

On 17 December 2009 Glen Arthur Rowe lodged a “Notice of Claim For Damages” with WorkCover for a psychological injury described at paragraph 41 therein as an “aggravation of Psyche Injury” with 22 April 2008 being the date of injury. That notice stated it was lodged under section 275 of the Workers Compensation and Rehabilitation Act 2003 (the Act)[1].
[1] In Part 5 (Pre-court procedures) Chapter 5 (Access to damages) of the Act;
This matter has a history which will be outlined later in these reasons. However, the matter comes to this court by Notice of Appeal dated 27 September 2010. Mr Rowe appeals what might loosely be described as a determination of Q-COMP dated

13 September 2010 to the effect that WorkCover’s decision dated 7 May 2010 is not a reviewable decision under the Act.
Mr K. Fleming QC (with him Ms L. Willson) appeared for Mr Rowe. Mr G. Long SC (with him Mr S. Gray) appeared for Q-COMP.
The matter proceeded on 22 December 2010 for determination of a question of law by way of oral and written submissions only. No evidence was adduced by either party apart from an agreed bundle of 10 documents comprising, among other things, two judgements and correspondence. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rowe v Q-Comp

Details

AGLC: Rowe v Q-COMP [2011] QMC 31
Case: [2011] QMC 31
Decision Date: 2 February 2011

CaseChat Overview and Summary

The case of Rowe v Q-Comp involved a dispute between Mr. Rowe, a former employee of the Pickerings dealership, and Q-Comp, the workers' compensation insurer. Mr. Rowe had previously applied for statutory compensation for a psychiatric injury sustained on 22 April 2008 and subsequently lodged a Notice of Claim for Damages for the same injury. The legal issues before the court were whether the injury claimed in the Notice of Claim for Damages was the same as the injury for which statutory compensation was previously sought, and if so, whether Mr. Rowe was precluded from seeking common law damages under section 237(1)(d) of the relevant legislation. Additionally, the court needed to determine whether Q-Comp's decision rejecting the Notice of Claim for Damages was a reviewable decision and if so, whether it could be reviewed by Q-Comp and an Industrial Magistrate.

The court found that the injury claimed in the Notice of Claim for Damages was indeed the same as the one for which statutory compensation was sought. Given that Mr. Rowe had already received statutory compensation for the psychiatric injury, he was precluded from seeking common law damages under section 237(1)(d). The court further held that Q-Comp's decision rejecting the Notice of Claim for Damages was a reviewable decision as defined in section 540 of the Workers Compensation and Rehabilitation Regulation 2003. However, the court determined that this decision was not reviewable by Q-Comp or an Industrial Magistrate under section 548 of the Workers Compensation and Rehabilitation Regulation 2003.

The appeal was dismissed, meaning the appeal was not successful.

Orders

Orders of the court

The appeal is dismissed. This means the appeal is not successful.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Next, reference in section 545 to “Authority” is a reference to Q-COMP[9]. Section 545 in Part 2 Chapter 13 relevantly provides:[9] See section 328 of the Act (Authority may operate under trading name) and regulation 4 of the Workers Compensation and Rehabilitation Regulation 2003; 545 Review of decision or failure to make a decision(1) The Authority must, within 25 business days after receivingthe application, review the decision and decide (the reviewdecision) to—(a) confirm the decision; or(b) vary the decision; or(c) set aside the decision and substitute another decision; or(d) set aside the decision and return the matter to thedecision-maker with the directions the Authority considers appropriate.……..(2) If an application is about the failure to make a decision, theAuthority may—(a) make the decision (also a review decision) afterconsidering the information before it; or(b) return the matter to the decision-maker with thedirections the Authority considers appropriate. References to “decision” in subsections 545(1) & (2) also must only refer to those types of decisions applicable to Part 2 Chapter 13 which are set out in section 540. Section 548, as it applied before 1 November 2010[10], is in Division 1 (Appeal to industrial magistrate or industrial commission) in Part 3 (Appeals) of Chapter 13. It deals with appeals to this court: 548 Application of div 1This division applies to the following decisions—(a) a review decision, other than a decision to return amatter to a decision-maker under section 545;(b) a decision by an insurer under chapter 3 or 4 that is not adecision mentioned in section 540(1) (a non-reviewable decision).[10] Section 146 of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (No 26/2010) amended section 548A of the Act removing “Industrial Magistrate” and an “appeal body” for most reviewable decisions under the Act; Background & Discussion Mr Rowe was a long term employee of the Pickerings dealership. He had been the sales manager for the Hyundai franchise for 15 years until 22 April 2008 when he resigned after events that occurred that day. In his Notice of Claim for Damages, Mr Rowe’s disorder is described as “Aggravation of Psyche Injury” and it is alleged that this injury occurred on 22 April 2008[11].[11] Paragraphs 35 & 41 of the Notice of Claim For Damages lodged 17 December 2009; In his original claim for statutory compensation, the IRC noted three factors that led to Mr Rowe’s psychological injury:I.Events of 22 April 2008;II.Replacement of older staff with less experienced staff; and III. Pressures of working with unsuitable staff and the failure by management to support [Mr Rowe] over the difficulties he was encountering[12]. [12] Glen Rowe v. Q-COMP [2009] 190 QGIG at 93 & Q-COMP v. Glen Rowe 191 QGIG 67 & 68; It seems undisputed that before any of those “stressors” or “irritants” arose, Mr Rowe had been diagnosed with a depressive disorder having been prescribed prozac since about early 2000. Mr Rowe then consulted his treating general practitioner Dr Dignam who continued that treatment from February 2002 to April 2008.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rowe v Q-COMP [2011] QMC 31
PARTIES:	GLEN ARTHUR ROWE (appellant) v Q-COMP (respondent)
FILE NO/S:	MAG185521/10(9)
DIVISION:	Industrial Magistrates Courts
PROCEEDING:	Appeal against decision of Q-COMP
ORIGINATING COURT:	Industrial Magistrates Court at Brisbane
DELIVERED ON:	2 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	22 December 2010
MAGISTRATE:	Lee G
ORDER:	The appeal is dismissed. This means the appeal is not successful.
CATCHWORDS:	INDUSTRIAL LAW - WORKERS COMPENSATION – Notice of Claim for Damages for psychiatric injury – previous application for statutory compensation for psychiatric injury – whether same injury as defined in section 32 – whether precluded from seeking common law damages under s 237(1)(d) – whether WorkCover’s decision rejecting Notice of Claim for Damages a reviewable decision – whether reviewable by Q-COMP and Industrial Magistrate Industrial Relations Act 1999 (Qld), s 242, s 349 Workers Compensation and Rehabilitation Act 2003 (Qld), s 32, s 237(1)(d), s 258(1)(a)(ii), s 258(9), s 540(1)(a)(xiii), s 541, s 548, s 561(4) Aaveland v The Dental Board of New South Wales, unreported, 16 October 1998 No 40238/98 cited Capuano v Q-COMP [2004] QSC 333 cited Glen Rowe v Q-COMP [2009] 190 QGIG 93 cited Jacobs v Woolworths [2010] QSC 24 cited Kuligowski v Metrobus (2004) 220 CLR 363 cited Parnell v WorkCover Queensland [2006] QSC 303 cited Pastras v The Commonwealth [1966] 9 FLR 152 cited Q-COMP v Coutts (2007) 185 QGIG 9 cited Q-COMP v Glen Rowe [2009] 191 QGIG 67cited Q-COMP v Whittaker (2006) 182 QGIG 313 cited Watkin v GRM International Pty Ltd [2007] 1 Qd R 389; [2006] QCA 382 cited
COUNSEL:	K Fleming QC with L Willson for the applicant G Long SC with S Gray for the respondent
SOLICITORS:	Respondent on their own behalf