Rowe v Q-Comp
[2011] QMC 31
•2 February 2011
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 first judgement is of the Industrial Relations Commission (IRC) dated 23 January 2009[2] which set aside Q-COMP’s decision and allowed Mr Rowe’s claim for statutory compensation for psychological injury while employed as a sales manager for the Hyundai franchise which was part of the Pickerings Auto Group dealership in Townsville until he resigned on 22 April 2008. Q-COMP successfully appealed that decision to the Queensland Industrial Court. The second judgement is of the Queensland Industrial Court dated 12 May 2009[3] setting aside the decision of the IRC reinstating Q-COMP’s decision to reject Mr Rowe’s claim for statutory compensation for psychological injury. At the conclusion of submissions I reserved judgement.
[2] Glen Rowe v. Q-COMP [2009] QIR Comm 9; 190 QGIG 93 per Commissioner Fisher;
[3] Q-COMP v. Glen Rowe [2009] QIC 17; 191 QGIG 67 per Hall P.;
Issues in this Appeal
It is submitted for Mr Rowe that Q-COMP does not have the power under section 540 of the Act to refuse to review WorkCover’s decision dated 7 May 2010 and that
Q-COMP is required to review that decision according to law. It was submitted that a failure to do so is a breach of statutory power and that Mr Rowe is entitled to a hearing de novo as an aggrieved person based on evidence adduced in that hearing[4].
[4] Paragraphs 4 to 7 submissions for Mr Rowe dated 26 November 2010;
In support of this contention, reliance was placed on sections 237(1)(d), 258(1)(a)(ii) & (9), 540(1)(a)(xiii) and 541 of the Act[5]. The statutory scheme will be considered below.
[5] Paragraphs 8 to 14 submissions for Mr Rowe dated 26 November 2010;
It was submitted for Mr Rowe that WorkCover’s decision of 7 May 2010 was a valid exercise of review of Mr Rowe’s notice of claim for common law damages under section 258(1)(a)(ii), that it was refused on the basis that Mr Rowe did not sustain an injury as that term is defined in section 32 of the Act[6], and that this is a reviewable decision under section 258(9) and section 540(1)(xiii) which Q-COMP was required to hear and determine according to law.
[6] Paragraph 11 submissions for Mr Rowe dated 26 November 2010; para 5 submissions for Mr Rowe dated 20 December 2010;
On the other hand, in short, Q-COMP submits that Mr Rowe is precluded from now claiming common law damages under section 237 of the Act which limits circumstances in which persons can seek common law damages. The submission continues that although Mr Rowe relies on the circumstance in section 237(1)(d), it simply does not apply because he had previously lodged a claim for statutory compensation for the same psychological injury. His application was ultimately unsuccessful after exhausting mechanisms for review by Q-COMP, then the IRC and finally, the Queensland Industrial Court.
Further, contrary to submissions for Mr Rowe, Q-COMP submitted that WorkCover’s determination of 7 May 2010 was not a determination as to whether Mr Rowe sustained an injury. Rather, it was a determination that “[Mr Rowe] was not a person entitled to seek damages as he had previously lodged an application for compensation for the injury and this is not a decision that Q-COMP has authority to review”[7]. This is consistent with the legislature’s intention that all decisions of WorkCover are not reviewable: see Q-COMP v. Coutts (2007) 185 QGIG 9 at 12 per Hall P.; Q-COMP v. Whittaker (2006) 182 QGIG at 313 per Hall P.
[7] Paragraphs 34 & 41 submissions for Q-COMP dated 13 December 2010;
Relevant Statutory Scheme
Chapter 5 of the Act is entitled “Access to damages”. Section 237(1) of the Act (General limitation on persons entitled to seek damages), which describes those persons who may seek common law damages, is in Division 1 (Limitations on persons entitled to seek damages) Part 2 (Entitlement conditions) of Chapter 5. It is common ground that unless a potential claimant falls into one of the categories in section 237, then that person is precluded from seeking common law damages for a workplace injury: see for example the Court of Appeal decision Watkin v. GRM International Pty Ltd [2007] 1 Qd R 389 at 393 per Keane JA (as he then was)[8]. Subsections 237(1) & (5) relevantly provide:
[8] Also at (2006) QCA 382; with other members of the Court of Appeal agreeing;
237 General limitation on persons entitled to seek damages
(1) The following are the only persons entitled to seek damages
for an injury sustained by a worker—(a) the worker, if the worker—
(i) has received a notice of assessment from the
insurer for the injury; or
(ii) has not received a notice of assessment for the
injury, but—
(A) has received a notice of assessment for any
injury resulting from the same event (the
assessed injury); and
(B) for the assessed injury, the worker has a WRI
of 20% or more or, under section 239, the
worker has elected to seek damages;
(b) the worker, if the worker’s application for compensation
was allowed and the injury has not been assessed for
permanent impairment;
(c) the worker, if—
(i) the worker has lodged an application, for
compensation for the injury, that is or has been the
subject of a review or appeal under chapter 13; and
(ii) the application has not been decided in or
following the review or appeal;
(d) the worker, if the worker has not lodged an application
for compensation for the injury;
(e) a dependant of the deceased worker, if the injury results
in the worker’s death. (my emphasis)
…….….
(5) To remove any doubt, it is declared that subsection (1)
abolishes any entitlement of a person not mentioned in the
subsection to seek damages for an injury sustained by a worker.The central provision under consideration is paragraph (d) of section 237(1). Mr Rowe contends that he has not lodged an application for compensation for what he characterises as an aggravation of a psychological condition caused by events on
22 April 2008 and which, it was submitted, is a different injury from the injury that was the subject of his unsuccessful application for statutory compensation i.e. an over a period of time claim for a psychological condition. Particularly having regard to the judgments of the IRC and Queensland Industrial Court which considered Mr Rowe’s previous statutory compensation claim for psychological injury, Q-COMP submits to the contrary and says that Mr Rowe has lodged a claim for statutory compensation in respect of the same injury so that Mr Rowe cannot rely on section 237(1)(d) to seek damages.
Then one turns to the provisions in Division 6 (Claimant mentioned in s 237(1)(d)) Part 2 of Chapter 5. Relevantly subsections 258(1) & (9) provide:
258 Access to damages if claimant has not lodged
application for compensation
(1) The claimant may seek damages for the injury only if the
insurer—(a) decides that the claimant—
(i) was a worker when the injury was sustained; and
(ii) has sustained an injury; and
(b) gives the claimant a notice of assessment for the injury.
……….
(9) A person aggrieved by a decision made by the insurer for the
purpose of subsection (1) may have the decision reviewed
under chapter 13.It is submitted for Mr Rowe that, in refusing his claim, WorkCover made a decision pursuant to section 258(1)(a)(ii) and accordingly that this decision is reviewable because section 540(1)(a)(xiii) identifies that such a decision is reviewable and that, as such, Q-COMP was required to undertake a review pursuant to section 545. That submission is prefaced on the basis that WorkCover’s decision is characterised as such. Section 540 is in Part 2 (Authority’s review of decisions) in Chapter 13 (Reviews and appeals) Section 540(1)(a)(xiii) provides:
540 Application of pt 2
(1) This part applies to the following—
(a) a decision by WorkCover—
……………
(xiii) under section 245(3)(a) or (b), 258(1)(a)(i) or (ii),
or 262(1)(b)(i), (ii), (iii) or (iv);
Relevantly, section 541 (Who may apply for review) in Part 2 Chapter 13 provides that a worker “aggrieved by a decision or the failure to make a decision may apply for review” (my emphasis). References to “a decision” must only refer to those types of decisions applicable to Part 2 Chapter 13 which are set out in section 540.
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 receiving
the application, review the decision and decide (the review
decision) 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 the
decision-maker with the directions the Authority
considers appropriate.
……..
(2) If an application is about the failure to make a decision, the
Authority may—
(a) make the decision (also a review decision) after
considering the information before it; or
(b) return the matter to the decision-maker with the
directions 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 1
This division applies to the following decisions—(a) a review decision, other than a decision to return a
matter to a decision-maker under section 545;
(b) a decision by an insurer under chapter 3 or 4 that is not a
decision 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.
I note that treating general practitioner Dr B. Dignam and psychologist Dr J. Promnitz gave evidence before the IRC in respect of Mr Rowe’s claim for statutory compensation for psychological injury[13]. They are two of the three treating practitioners referred to in Mr Rowe’s Notice of Claim for Damages indicating they are, or were at all material times, at the same medical practice i.e. Charles Street Practice, 130 Charles Street, Townsville. Before the Queensland Industrial Court, Hall P. cited passages of evidence given by Dr Dignam. The third doctor referred to in the Notice of Claim for Damages, Dr W. Lee, was also from the same medical practice. This suggests that the medical records relating to what occurred during consultations and Mr Rowe’s treatment for a psychological condition will be at least similar in respect of the previous application for statutory compensation and the Notice of Claim for Damages.
[13] [2009] 190 QGIG at 94;
The submission on Mr Rowe’s behalf before the IRC which was rejected was that factors II & III above were mere irritants and that the events of 22 April 2008 stood alone so as to “remove the case from one where multiple stressors were involved”. It was found that this was a “multiple stressor” case. Psychiatrist Professor James’ evidence was accepted. The IRC found that factor I was unreasonable management action and that factors II & III were reasonable management action. These findings were later endorsed by the Queensland Industrial Court although that court came to a different conclusion after considering the law in relation to multiple stressor cases and section 32(5)[14]. It was patently clear that the incidents surrounding factor I involved unreasonable management action compared with factors II & III.
[14] At page 68 of the judgement of Hall P.;
After reading the judgments of the IRC and the Queensland Industrial Court, it is abundantly clear that aggravation of Mr Rowe’s psychological injury was a major point considered in the claim for statutory compensation together with the effects of the events on 22 April 2008 (factor I). Submissions for Q-COMP set out in some detail extracts of those judgements in support of this contention with which I agree[15].
[15] Paragraphs 12 to 22;
For example, Hall P said at 68:
As the Commissioner correctly recorded, the essence of Mr Rowe’s case at first instance was …that, as a result of the events of 22 April 2008, Mr Rowe had suffered ‘an acute aggravation of a major depressive disorder’ which was properly to be described as an aggravation of a personal injury within s 32(3)(b) of the Act …The reference to ‘aggravation’ and to s 32(3)(b) of the Act arose because before any of the ‘stressors’ identified at headings (i), (ii) and (iii) developed in the workplace, Mr Rowe had been diagnosed as suffering from a depressive disorder. ….It was that existing medical condition which was said to have been ‘aggravated’ by the events of 22 April 2008.
Headings (i), (ii) & (iii) are a reference to factors I, II & III above.
There are references to aggravation elsewhere. For example, the IRC at 93 said:
In light of Mr Rowe’s history of depression the injury was diagnosed by Professor James, psychiatrist, as an Acute Aggravation of a Major Depressive Disorder. The submission was made on behalf of Mr Rowe and is accepted by the Commission that the injury is more accurately described as an aggravation of a personal injury: s 33(b) of the Act [sic]
The reference to s 33(b) must be a reference to s 32(3)(b) which provides:
32 Meaning of injury
………
(3) Injury includes the following—(a) …..
(b) an aggravation of the following, if the aggravation arises
out of, or in the course of, employment and the
employment is a significant contributing factor to the
aggravation—(i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a
personal injury or disease because of the aggravation;Again, the following remarks of the IRC at 98 subsequently cited with approval by the Queensland Industrial Court (at 71) said[16]:
Despite valiant attempts by Mr Fleming QC the evidence from Mr Rowe and Professor James is that multiple stressors were present in the aggravation of this injury. ….Professor James said in evidence that all three of the main factors specified by Mr Rowe in his workers’ compensation application contributed to his “load of stress”.
[16] Cited at paragraph 20 submissions for Q-COMP;
The three factors referred to are factors I, II & III above.
I accept Q-COMP’s submissions that the injury in the Notice of Claim for Damages is, in reality, the same injury that was the subject of Mr Rowe’s claim for statutory compensation and that had been conclusively determined by the Queensland Industrial Court. While it may be open for a person to seek damages under section 237(1)(d) in respect of a different injury arising out of the same event as was the case in Parnell v. WorkCover Queensland [2006] QSC 303 per White J. where a psychiatric injury subsequently developed as a result of physical injuries after a lump sum offer for the physical injuries had been accepted, that is not the case here. Here, I have found that the injury is one and the same. I respectfully do not accept submissions for Mr Rowe[17].
[17] Paragraph 4 submissions dated 20 December 2010;
The consequence of that conclusion is that Mr Rowe has lodged an application for compensation for the injury so that he cannot rely on section 237(1)(d) to seek common law damages. However, for reasons developed later, this court is not empowered to review this “decision” and therefore cannot make a binding determination in relation to this. For a binding determination on this issue, I accept Q-COMP’s submissions that the appropriate forum to litigate this is for Mr Rowe to seek a declaration in the Supreme Court, a course undertaken in Jacobs v. Woolworths [2010] QSC 24[18]. Another example is Parnell v. WorkCover Queensland [2006] QSC 303 per White J. where the worker sought a declaration by originating application to the Supreme Court as to whether she was entitled to seek damages under sections 237(1)(d) and 258(1)(b) for alleged psychiatric injury. The applicant had previously accepted a lump sum offer for a physical injury arising from the same event as the alleged psychiatric injury said to have developed later. At paragraph [6] White J. explained:
[6] By letter dated 15 May 2006 [WorkCover Queensland] acknowledged that the notice of claim was compliant. The writer noted that the applicant had not received a notice of assessment from [WorkCover Queensland] and was therefore not entitled, pursuant to s 258(1) (b), to seek damages until she received a notice of assessment. [WorkCover Queensland] briefed the matter to outside solicitors who wrote on 5 June 2006 that the applicant had no entitlement to seek damages for psychiatric/psychological injury because she failed to satisfy the requirements of s 237 of the [Act]. Hence this application. [my emphasis]
[18] Paragraph [44] submissions for Q-COMP dated 13 December 2010;
In Capuano v. Q-COMP [2004] QSC 333 per Philippides J., it was argued for the applicant worker that Q-COMP failed to exercise its jurisdiction after it set aside WorkCover’s decision under section 545(1)(c) by then remitting it back to WorkCover without substituting its own decision. The power to remit after setting aside a decision was not expressly provided for in section 545(1) at the time[19]. In determining that the worker did not sustain a “personal injury”, WorkCover did not deal with the other elements in the definition of injury in section 32. Q-COMP found “personal injury” and remitted to WorkCover for determination the other elements in section 32. Philippides J. concluded that the Act at the time did not empower
Q-COMP to take that course. After setting aside WorkCover’s decision, Q-COMP was required to substitute its own decision. However, unlike the present case, in Capuano, it was not disputed that WorkCover’s decision fell within section 540 of the Act as a reviewable decision, namely, a decision to allow or reject an application for compensation in section 540(1)(a)(viii). The issue in this case is whether section 540 applies at all and in particular whether section 540(1)(a)(xiii) cited at [13] above applies in respect of a purported decision under section 258(1)(a)(ii) as contended for Mr Rowe. The point about Capuano though is that the Supreme Court is the appropriate forum.
[19] Section 545(1) has since been amended to include that power – see s 545(1)(d);
The question agitated for Mr Rowe is whether Q-COMP should have reviewed WorkCover’s ‘decision’ dated 7 May 2010 and whether this court can lawfully “review” Q-COMP’s “decision” under the Act will depend on the answer to that.
It is contended for Mr Rowe that in rejecting his Notice of Claim for Damages, WorkCover made a decision under section 258(1)(a)(ii) i.e. whether or not Mr Rowe sustained an injury as defined in section 32. The submission continues that as it was such a decision, then it can be reviewed under Chapter 13 of the Act by virtue of section 258(9). Then, section 540(1)(a)(xiii) in Chapter 13 applies making such decision a reviewable decision for Q-COMP to review under Chapter 13.
The background circumstances after the Notice of Claim for Damages was lodged are as follows.
After the Notice of Claim for Damages was lodged on 17 December 2009, WorkCover, as it does from time to time[20], engaged solicitors who by letter dated
11 January 2010[21] advised Mr Rowe that he did not have an entitlement to damages. Paragraphs 2 & 3 of that letter state:
[20] It did so in Parnell v. WorkCover Queensland [2006] QSC 303 per White J. at paragraph 6;
[21] Document 4 in the bundle of 10 documents tendered;
2.The claimant has no entitlement to pursue the Notice of Claim for Damages as:-
(a)the claimant’s claim has been the subject of litigation culminating in a Decision of President Hall of the Industrial Court of Queensland dated 12 May 2009;
(b)the proceeding before President Hall claimed psychological/psychiatric injury in relation to certain stressors including the events of 22 April 2008;
(c)President Hall accepted that the essence of the claimant’s case at first instance was founded on the opinion of a psychiatrist (Professor Basil James) that, as a result of the events of 22 April 2008, Mr Rowe had suffered “an acute aggravation of a major depressive disorder” which was properly to be described as an aggravation of a personal injury within s 32(3)(b) of the Act”;
(d)President Hall found that the claimant did not have a recognisable claim in respect of the stressors including the events of 22 April 2008;
(e)The Decision of the Industrial Court of Queensland is final.
3.It is WorkCover’s position that the claimant does not have, and never will have, an entitlement to damages under the Act because of the findings of President Hall in the Industrial Court of Queensland dated 12 May 2009.
A review was sought by Q-COMP who on 14 April 2010 advised that it had no power of review under section 540[22]. On 11 May 2010 an appeal was lodged to the Industrial Magistrates Court but the appeal was withdrawn by consent on 18 October 2010.
[22] Document 6 in the bundle of 10 documents;
In the meantime, by letter dated 7 May 2010[23] WorkCover again rejected the same Notice of Claim for Damages lodged 17 December 2009[24]. Contrary to submissions for Mr Rowe I agree with Q-COMP’s submissions that the substance of that letter is consistent with the solicitor’s letter dated 11 January 2011 cited above despite a statement on page 1 of it that “My decision is made pursuant to section 258 of the Act”[25]. The fact that that is stated does not make it so. WorkCover’s letter made specific reference to Mr Rowe’s previous claim for statutory compensation[26] and its final determination by the Queensland Industrial Court on 12 May 2009 which included a consideration of the events of 22 April 2008. Reference was also made to Mr Rowe’s Notice of Claim for Damages dated 16 December 2009 arising from the specific event on 22 April 2008[27]. Having said all that, it is curious that WorkCover sent its 7 May 2010 letter after it had already made its intentions clear through external solicitors about the Notice of Claim for Damages lodged
17 December 2009.
[23] Document 7 in the bundle of 10 documents;
[24] While WorkCover’s letter 7 May 2010 states 23 December 2009 as date of lodgement, this appears to have been corrected by Q-COMP in its consideration of the matter by letter dated 13 September 2010;
[25] Paragraph 33 submissions for Q-COMP dated 13 December 2010;
[26] Claim file number SO7CD576597;
[27] Claim file number DO7AH738023; According to WorkCover’s letter, it appears Mr Rowe had lodged a previous Notice of Claim for Damages for psychological injury dated 9 September 2008 (DO7AH576597);
Mr Rowe requested a review of WorkCover’s ‘decision’ by Q-COMP who, on
13 September 2010 responded again that it did not have power to review it[28]. Mr Rowe seeks that ‘decision’ be reviewed by this court.
[28] Document 9 in the bundle of 10 doucments;
I have concluded that the injury in Mr Rowe’s Notice of Claim for Damages is the same injury considered by the Queensland Industrial Court in rejecting his earlier claim for statutory compensation. Such decision is final[29] and binding on this court. I do not agree that WorkCover’s “decision” was a determination under section 258(1)(a)(ii). Rather, I accept submissions for Q-COMP that the “decision” was a determination that Mr Rowe was not entitled to seek common law damages because of a previous rejection of his application for statutory compensation in respect of the same “injury” and not one under section 258(1)(a)(ii) at all. This is entirely consistent with the terms of the solicitors letter to Mr Rowe’s solicitors dated
11 January 2010 (at [37] above)[30]. As he had lodged an application for compensation for the “injury”, he is not entitled to seek common law damages pursuant to section 237(1) (d). References were made to the limiting nature of section 237: see Watkin v. GRM International Pty Ltd [2007] 1 Qd R 389; [2006] QCA 382[31] and Jacobs v. Woolworths [2010] QSC 24 (per Jones J.).
[29] Section 561(4) of the Act & section 349 Industrial Relations Act 1999;
[30] Document 4 in the bundle of 10 documents;
[31] Keane JA (as he then was) wrote the leading judgment; McMurdo P. & Cullinane J. agreeing;
It will be sufficient for present purposes to briefly refer to Jacobs in which Jones J. examined the operation of section 237 and the interaction between Chapter 3 (Compensation) and Chapter 5 (Access to Damages) of the Act. After referring to the statutory process of inquiry by WorkCover in order to come to a view whether a claim for statutory compensation is accepted or rejected (at [19 & 20]), Jones J. said at
[21] [32]:
A worker, whose application for compensation has been rejected after this process, has no entitlement to seek damages. A worker who does not apply for compensation but claims damages pursuant to s 237(1)(d) still has to undergo this process of inquiry before the claim can proceed. The process is dictated by the terms of s 258.
[32] Paragraph 29 submissions for Q-COMP;
In short I agree with Q-COMP’s ultimate submissions that there is no basis for a review. Q-COMP is a creature of statute. It has no general power to review a WorkCover determination. It is only authorised to review decisions under Part 2 Chapter 13 of the Act i.e. those decisions specified in section 540. Q-COMP was called upon to review a decision that Mr Rowe was not a person entitled to seek common law damages. This is not a decision referred to in section 540. As he had previously lodged an application for statutory compensation for the “injury”, I agree with Q-COMP’s submissions that this was not a decision that it had authority to review[33].
[33] Paragraphs 41 to 43 submissions for Q-COMP;
Further, section 545(2), providing for a mechanism for reviewing a failure to make a decision, does not apply in these circumstances. As previously noted ([16] above), section 545(2) is in Part 2 Chapter 13 and therefore, it only relates to a failure to make those decisions specified in section 540.
It follows that this court also cannot review this decision. Section 548(a) incorporates all the decisions that Q-COMP can review other than a decision to return a matter to a decision-maker under section 545. Section 548(b) appears not to apply here as it applies to decisions under Chapters 3 & 4. Even if, contrary to my conclusions, submissions for Mr Rowe were accepted that WorkCover’s decision was under section 258(1)(a)(ii), this would be a decision under Chapter 5.
In light of my conclusions, in my view it is not necessary to deal in detail with whether a previous application for statutory compensation creates an estoppel and the authorities cited including Pastras v. The Commonwealth [1966] 9 F.L.R. 152 per Lush J., Aaveland v. The Dental Board of New South Wales, a decision of the New South Wales Court of Appeal (40238/98) (16 October 1998)[34] and Kuligowski v. Metrobus (2004) 220 CLR 363. Briefly, it was submitted for Mr Rowe that a distinction should be drawn between determinations of a judicial nature where it was submitted an estoppel can be raised, and mere administrative decisions in which an estoppel cannot be raised[35]. It was submitted that an estoppel here cannot be raised because decisions of WorkCover and Q-COMP are merely administrative decisions. In my view, the focus of those principles appears to be misplaced having regard to the statutory scheme under consideration and the binding authority of a final determination of the Industrial Court of Queensland, which is a superior court of record[36]. On 12 May 2009 it determined that Mr Rowe did not suffer an injury as defined in the Act after having regard to the three factors outlined earlier in these reasons including the events that occurred on 22 April 2008. It appears to me that WorkCover and Q-COMP were simply having regard to that decision considering it, correctly, to be binding on them.
[34] Mason P., Meagher & Beazley JJA.;
[35] Paragraphs 6 to 9 reply submissions for Mr Rowe dated 20 December 2010;
[36] Section 242 Industrial Relations Act 1999;
Suffice it to say that I agree with Q-COMP’s submissions that Mr Rowe is “effectively seeking … a re-determination of the question as to whether he can establish an injury pursuant to s 32 of the [Act] in respect of his psychiatric or psychological disorder on and from 22 April 2008, when he ceased work for Pickerings”[37].
[37] Paragraph 47 submissions for Q-COMP dated 13 December 2010;
Conclusion
Section 558 sets out the orders this court can make for decisions it has power to review. This is a case, I have concluded, where this court cannot review the decision agitated on Mr Rowe’s behalf. It is an interesting question then as to what orders this court can make in the absence of any statutory authority. This further supports the view that the proper forum is to seek declaratory relief in the Supreme Court.
In the circumstances, I dismiss the appeal.
I will hear the parties on costs if they cannot agree.
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