Talay v Workers' Compensation Regulator - [2025] QIRC 273

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Talay v Workers' Compensation Regulator [2025] QIRC 273
PARTIES:	Talay, Revelyn (Applicant) v Workers' Compensation Regulator (Respondent)
CASE NO:	B/2025/84
PROCEEDING:	Application to re-open proceedings
DELIVERED ON:	14 October 2025
MEMBER: HEARD AT:	O'Neill IC On the papers
ORDER:	The order contained in paragraph [67] of these reasons.
CATCHWORDS:	PROCEDURE - APPLICATION FOR AN ORDER TO TAKE FURTHER ACTION ON A LAPSED PROCEEDING – Applicant is a worker who made an application for workers' compensation pursuant to the Workers' Compensation and Rehabilitation Act 2003 – claim not accepted by a review decision of the Respondent – Applicant appealed against the review decision – appeal placed in abeyance on 24 April 2024 and lapsed on 24 April 2025 – Applicant applied for an order pursuant to r 230(2) of the Industrial Relations (Tribunals) Rules 2011 to take further action in respect of her appeal – consideration of whether the Applicant's appeal had lapsed within the meaning of r 230(1) of the Industrial Relations (Tribunals) Rules 2011 – consideration of whether the Applicant had taken action in relation to its appeal for at least one year since the last action was taken – Applicant had taken action in relation to its appeal at least one year since the last action was taken – r 230(1) of the Industrial Relations (Tribunals) Rules 2011 not enlivened such that the Applicant's appeal did not lapse – decision made pursuant to s 451(2)(b) of the Industrial Relations Act 2016 that Applicant's appeal has not lapsed.
LEGISLATION: CASES:	Industrial Relations Act 2016, s 451, s 541 and s 553 Industrial Relations (Tribunals) Rules 2011, r 41, r 46 and r 230 Uniform Civil Procedure Rules 1999 (Qld), r 210 and r 211 Workers' Compensation and Rehabilitation Act 2003, s 553 Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272 Bale v Workers' Compensation Regulator [2024] QIRC 235 Barnes v Q-Comp & Hatch Pty Ltd [2017] QIRC 025 CitiCorp Australia Limited v Metropolitan Public Abattoir Board [1991] QSCFC 59; [1992] 1 Qd R 592 Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator & Anor [2022] QIRC 251 Pritchard v Q-COMP [2013] QIRC 18 State of Queensland (Office of the Governor) v Workers' Compensation Regulator and Anor [2025] QIRC 210 State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 10 Vibe Allerup v Heka Pty Ltd t/a Brisbane Dental Group (1999) 160 QGIG 112

Reasons for Decision

Ms Revelyn Talay ('the Applicant') was employed as an aged care worker with OzCare ('the employer').
The Applicant filed an appeal with the Industrial Registry in matter WC/2023/180 on 7 December 2023 in respect of an aggravation of a right wrist injury sustained on 24 January 2023.
A directions order was issued by the Commission on 11 December 2023 requiring the parties to take the usual steps to prepare the matter for hearing.
The Applicant filed her Statement of Facts and Contentions on 26 February…

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 Talay v Workers' Compensation Regulator

Details

AGLC: Talay v Workers' Compensation Regulator [2025] QIRC 273
Case: [2025] QIRC 273
Decision Date: 14 October 2025

CaseChat Overview and Summary

Talay, an applicant, applied to the Queensland Civil and Administrative Tribunal (QCAT) for an order to take further action on a lapsed appeal concerning a workers' compensation claim. The appeal was initially placed in abeyance on 24 April 2024 and subsequently lapsed on 24 April 2025. The applicant sought to overturn the respondent's rejection of her claim for compensation following an aggravation of her wrist injury at work. The court was required to determine whether the applicant's appeal had indeed lapsed within the meaning of r 230(1) of the Industrial Relations (Tribunals) Rules 2011 and whether the applicant had taken action in relation to her appeal at least one year since the last action was taken.

The court found that the applicant's appeal did not lapse because r 230(1) of the Rules was not activated. The applicant had taken action in relation to her appeal, specifically providing the medical report of Dr Thomas to the respondent on 5 March 2025, prior to the appeal lapsing on 24 April 2025. This action constituted a step that carried the cause or action forward. The court concluded that r 230(1) was not triggered, making it unnecessary to consider the application of r 230(2) of the Rules.

The court's decision was based on the applicant's actions taken at least one year since the last action was taken, as evidenced by the submission of Dr Thomas's medical report to the respondent. The court found that the applicant had met the requirements to avoid the lapse of her appeal. Therefore, the tribunal concluded that the applicant's appeal had not lapsed and ordered that the appeal be reinstated.

Orders

Orders of the court

The order contained in paragraph [67] of these reasons.

Background

Background to the litigation

For the reasons that follow, the Applicant's appeal did not lapse because r 230(1) of the Rules was not enlivened, such that it becomes unnecessary to consider the application of r 230(2) of the Rules.Relevant background On 21 April 2022 the Applicant sustained a right wrist injury at work when she was assisting a patient during a chair to bed transfer. The Applicant made a successful application for workers' compensation benefits to WorkCover Queensland ('WorkCover') in respect of that injury. The Applicant was off work from 21 April 2022 to 8 January 2023 receiving treatment for her wrist injury. The Applicant returned to work on a suitable duties plan from 9 January 2023. On 24 January 2023 the Applicant was required by the employer to perform kitchen duties which were not part of the return to work plan. While performing these kitchen duties on 24 January 2023 the appellant experienced an increase in, and aggravation of, her right wrist pain and symptoms and was further injured. The Applicant lodged a further claim with WorkCover in respect of the aggravation of her wrist injury on 3 April 2023. The claim was rejected by WorkCover on 29 June 2023. The Applicant sought a review of the WorkCover decision, and by reasons for decision dated 8 November 2023, the Respondent's review unit confirmed the rejection of the claim. The Applicant filed the appeal in WC/2023/180 seeking to overturn the Respondent's confirmation of the rejection of her claim. The affidavit of Ms Harris sets out the following timeline of events relevant to the application:•On 8 April 2024 a medico-legal examination was scheduled for the Applicant to attend upon Dr Michael Thomas, Orthopaedic Surgeon on 22 August 2024.[2][2] Affidavit of Kate Harris filed 10 October 2025, [5].•On 22 August 2024, the Applicant saw Dr Michael Thomas, Orthopaedic Surgeon.[3][3] Ibid, [6].•On 10 February 2025 the report of Dr Thomas was received by the Applicant's solicitors, after numerous attempts to follow up the report.[4] [4] Ibid, [7] and Exhibit "KJH-1" – medical report of Dr Thomas, Orthopaedic Surgeon dated 6 January 2025.•On 5 March 2025 Ms Harris provided a copy of the report of Dr Thomas to the Respondent with a request for the Respondent to review their decision to defend the appeal.[5] [5] Ibid, [8] and Exhibit :KJH-2" – letter to the Respondent dated 5 March 2025.•On 6 May 2025 Ms Harris emailed the Respondent seeking to follow up their position.[6] [6] Affidavit of Kate Harris filed 10 October 2025, [10] and Exhibit "KJH-3".•On 7 May 2025 Ms Harris received an email from the Respondent discussing the lapsed appeal, and noting that the Respondent would consent to an Application that the appeal be reinstated.[7] •Ms Harris then deposes to a number of requests made by the Respondent for further information including the letter of instruction to Dr Thomas, and other medical information, and her compliance in providing that information to the Respondent in the period from 9 May 2025 to 7 August 2025. The last document provided to the Respondent being a referral of the Applicant for an MRI scan.[8] •On 20 August 2025, Ms Harris received correspondence from the Respondent confirming its intention to continue defending the appeal.[9] [7] Ibid, [11] and Exhibit "KJH-4" – email from the Respondent dated 7 May 2025. [8] Ibid, [12]-[22] and Exhibits "KJH-5" to "KJH-14".[9] Ibid, [23] and Exhibit "KJH-16" – email from the Respondent dated 20 August 2025.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

At the further Mention held on 14 October 2025, the Respondent's representative Mr Beale confirmed that the Respondent did not intend to file submissions and the position of the Respondent remained that it consented to the application. ConsiderationDid the Applicant's appeal lapse because of the application of r 230(1) of the Rules? The affidavit of Ms Harris establishes that the appeal was placed into abeyance at the request of the Applicant's solicitors on 24 April 2024.[17] [17] Affidavit of Ms Harris (n 1), [4]. In response to that request a Further Directions Order was issued by the Industrial Registry on 24 April 2024 which vacated the directions made in the earlier Directions Order dated 11 December 2023. The email sent to the parties forwarding the new Directions Order noted:Please note the Appellant is responsible for their matter proceeding. If no action, (formal step having the effect of moving the application toward the relief sought) is taken by the Appellant to progress their matter within 12 months of the last action, the matter will lapse pursuant to rule 230 of the Industrial Relations (Tribunals) Rules 2011. The Applicant's submissions note that on 8 April 2024, a medico-legal examination was arranged for the Applicant to be examined by Dr Thomas, Orthopaedic Surgeon on 22 August 2024.[18] [18] Applicant's submissions filed 10 October 2025, [5]. The Applicant's submissions further indicate that on 22 July 2024 a medico-legal examination was scheduled for the Applicant to attend upon Ms Katie Grice, Occupational Therapist on 11 September 2024.[19] The Applicant respectively saw:·Dr Thomas on 22 August 2024; and·Ms Grice on 11 September 2024.[20] [19] Ibid, [6].[20] Ibid, [7]-[8]. The Applicant's submissions confirm that the medical report of Ms Grice was received by the Applicant's solicitors on 30 September 2024.[21] There is no indication in either Ms Harris' affidavit or the Applicant's submissions that the report of Ms Grice was disclosed to the Respondent. [21] Applicant's submissions (n 18), [9]. The affidavit of Ms Harris confirms that there were delays in receiving the medical report of Dr Thomas, despite a number of attempts to follow up on that report, it was ultimately received on 10 February 2025.[22] Ms Harris goes on to confirm that the report of Dr Thomas was disclosed to the Respondent on 5 March 2025 (and therefore prior to the appeal being lapsed on 24 April 2025).[23] [22] Affidavit of Ms Harris (n 1), [7]. [23] Ibid, [8]. The issue is whether the provision of the medical report of Dr Thomas to the Respondent constituted the Applicant taking a step or action in the proceeding that has the characteristic of carrying the cause or action forward. The relevant provisions which govern workers' compensation appeals in the Commission are contained in Chapter 3, Part 3 of the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act'). Section 553(1) of the WCR Act relevantly provides that:(1) The Uniform Civil Procedure Rules 1999, chapter 7, part 2 and chapter 9, part 4 and the Industrial Relations (Tribunals) Rules 2011 apply to an appeal under this division with necessary changes.