Toward v Simon Blackwood (Workers' Compensation Regulator)

[2014] QIRC 125

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  Toward v Simon Blackwood (Workers'

Compensation Regulator) [2014] QIRC 125

PARTIES:	Toward, Ian
(Appellant)
v
Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
CASE NO:	WC/2014/22
PROCEEDING:	Appeal against a decision of Simon Blackwood
(Workers' Compensation Regulator)
DELIVERED ON:	12 August 2014
HEARING DATE:	23 July 2014
MEMBER:	Industrial Commissioner Thompson
ORDERS :	The preliminary issue regarding the validity and
enforceability of the Appellant's Application for Compensation should be disposed of in the first instance.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - preliminary issue - Application for Compensation lodged outside six month time limit - time for applying - validity and enforceability of Application - preliminary issue should be disposed of in the first instance
CASES:	Workers' Compensation and Rehabilitation Act 2003
s 32, s 131, s 552A
State of Queensland (Department of Education, Training and Employment) v Q-COMP
(WC/2013/47)  - Reasons for Decision
Q-COMP v Winsome Abbot (WC/2013/154) - Decision
Stephen Horace MacDonald v Q-COMP (No. 2)
[2008] 188 QGIG 180
APPEARANCES:	Mr G. Barr, Counsel instructed by Butler McDermott Lawyers for the Appellant. Mr S. McLeod, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.

Report on Decision (as edited)

In giving his decision from the Bench on 23 July 2014, Industrial Commissioner
Thompson stated:

"On 17 July 2013, Ian Toward (the Appellant) lodged an application for Workers' Compensation with WorkCover for an injury described as a hip osteoarthritis injury sustained on 21 August 2004 in the course of his employment.

The application was refused by WorkCover with reasons conveyed to the Appellant on 4 November 2013.

The Appellant made an application to the Simon Blackwood (Workers' Compensation Regulator) (the Regulator) on 8 November 2013 for a review of the decision made by WorkCover to reject his claim for compensation.

The Regulator advised the Appellant in correspondence dated the 17 December 2013 that the decision of WorkCover to reject his Application for Compensation had been confirmed in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

On 16 January 2014, the Appellant lodged with the Industrial Registrar a Notice of Appeal against the decision of the Regulator. A conference was held before Commissioner Black on 11 March 2014 pursuant to s 552A of the Act and in accordance with a Further Directions Order issued by Vice President Linnane on 30 January 2014.

A Further Directions Order was issued on 14 May 2014 by the Vice President which identified at paragraph 13 the matter to be heard at sittings in Brisbane on 23, 24 and 25 July 2014. A Mention of the matter was to be at sittings in Brisbane on 8 July 2014 as stipulated in paragraph 12 of the 14 May 2014 Further Directions Order.

On 21 June 2014, the Regulator forwarded correspondence to Solicitors representing the Appellant stating to the effect that there was an intention to raise issue regarding s 131 of the Act:

'131 Time for applying

(1) An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.

(2) If an application is lodged more than 20 business days after the

entitlement to compensation arises, the extent of the insurer’s

liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.

(3)	Subsection (2) does not apply if death is, or results from, the injury.
(4)	An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist.

(5) An insurer may waive subsection (1) or (2) for a particular

application if the insurer is satisfied that a claimant’s failure to

lodge the application was due to -

(a)	mistake; or
(b)	the claimant’s absence from the State; or

(c) a reasonable cause.'

On 8 July 2014 at the Mention before the Vice President, Counsel for the Appellant advised that correspondence from the Regulator of 24 June 2014 had been received which raised the proposition of contending at the hearing of the matter that the application was lodged outside the six month time limit provided by s 131 of the Act.

The issue of s 131 was the subject of some detailed submissions and exchanges before the Vice President and without trawling through that transcript in minute detail, it is suffice to state that the outcome was that the trial would proceed on 23 July 2014 as scheduled.

On commencement of proceedings today, Counsel for the Regulator informed the Commission of a preliminary issue in relation to s 131 of the Act and of a request for the preliminary point to be disposed of by the Commission prior to the hearing of the substantive Appeal.

The Commission was informed of the rejection of the Appellant's Application for Compensation from WorkCover on 4 November 2013 and that decision being confirmed by the Regulator in their review decision on 17 December 2013.

Counsel for the Regulator provided what may be described as a chronology of the history of this claim to support the argument being advanced. That history was identified as follows:



the incident on 21 August 2004 was said to be causative of the injury;



the first medical treatment at the Atherton Medical Centre on 1 February 2005 where the Appellant consulted Dr Simonds, a General Practitioner (GP);



issues identified on that day were:

	pain in the left hip;
	some pain lifting leg up; and
	pain and stiffness;



an X-ray was ordered, which revealed on old fracture of the left hip that
was unhealed;



the Appellant visited Dr McLellan, a GP (at the same medical practice) 20 April 2007. Medical remarks I would imagine taken from records indicated that the left hip was slowly worsening. There was osteoarthritis and the Appellant was prescribed with painkillers;



the Appellant again visited Dr McLellan on 8 May 2008 and the documentation in relation to his medical condition was said to be left hip and osteoarthritis, again prescribed painkillers;



the Appellant visited Dr Simonds on 17 November 2009 and a note
indicated degenerative joint problem;



the Appellant visited Dr Simonds on 29 December 2010 where the
notations were referred to as hip injury, injury fall; and



the Appellant visited Dr Stark, another GP, on 25 May 2012 where
osteoarthritis and pain continuing were recorded.

Beyond the visits to the GP, the Appellant consulted with Dr Pozzi, an Orthopaedic Surgeon, on two occasions, firstly on 22April 2005 and, secondly, on the 11 July 2013. Dr Pozzi was said to have prepared a report following each consultation which, at this stage of the proceedings, remain untendered.

The Regulator relied upon the authorities of:

 State of Queensland (Department of Education, Training and

1

[2]

Employment) v Q-COMP	- Deputy President Bloomfield; and
	Q-COMP v Abbott[2] - Commissioner Black.

Counsel for the Appellant did not cavil with the factual background provided by the Regulator, however, took issue with the proposition regarding the s 131 of the Act determination.

The Commission was informed that neither reason for the decisions from WorkCover or the reviewed decision of the Regulator had given any consideration to s 131 in terms of their respective decisions. Whilst that meant there was no mention of the insurer waiving s 131(1) of the Act, it was open for the Commission to give consideration that it may be implied that the subsection had been waived.

The history of the matter would have been well known to the Insurer through the
Appellant's attendances upon various medical practitioners.

The Regulator was in a similar position and would have been aware of the situation prior to or on 29 April 2014 yet, in their conduct of the matter, despite ample opportunity, waited until 24 June 2014 to inform the Appellant of their intention to take up the issue of the application pursuant to s 131 of the Act.

In some respects, it was intolerable that the substantive hearing was being disrupted in that in July 2013, the Appellant was informed that he needed a hip replacement and some 12 months later, the matter still remains unresolved.

The Regulator had made no formal application to have the s 131 of the Act issue determined by the Commission and their raising of the matter in the way that they did was described as being 'late in the day'.

Counsel for the Appellant addressed certain aspects of each of the previously mentioned authorities from Deputy President Bloomfield and Commissioner Black. There was no question that the Appellant was caught by surprise with the advice made or given on the 24 June 2014.

Counsel for the Regulator concluded their argument by submitting there was no reason for them to be shut out based on the previously mentioned authorities.

The Commission, prior to adjourning to consider the request by the Regulator regarding s 131 of the Act, was provided with information of consultations between the Regulator and the Solicitors acting for the Appellant on 11 and 14 July 2014,

which was following the Mention before Vice President Linnane on 8	July 2014.
Conclusion

It is not of question that the Regulator had lodged an application with the Industrial Registrar for the preliminary point to be determined because that had not occurred. It is also not of question that following advice from Counsel on 23June 2014, the next day, immediate steps were taken to inform the Appellant of the intention to have the validity and enforceability of the Application for Compensation decided.

The Regulator tried to some extent to have the matter properly dealt with at the Mention before Vice President Linnane however, without being critical of the Appeals Officer present on that day, who was filling in for the Officer with carriage of that matter, it was somewhat difficult for her to prosecute a case as she may have done in different circumstances.

The Commission accepts that the request of the Regulator to have the preliminary matter dealt with as a threshold issue has the effect of an application. Should that not have been the case, there would have been every opportunity for an adjournment to be sought and for an application to have been filed in the Registry by the Regulator in the course of these proceedings.

In Appeals of this nature, they, by legislation, becoming a hearing de novo.

However, that does not necessarily require the Commission to, in some respects,

3

micro manage proceedings. In the matter of MacDonald v Q-COMP Hall P stated:

'It must be appreciated that the appeal to the Industrial Magistrate's Court from a decision of Q-COMP given in the Statutory Review process is not an appeal by way of "judicial review". It is an appeal by way of hearing de novo. The informal and hopefully inexpensive system of resolution by way of administrative review having failed, the claim for benefits is simply put to a trial. The Industrial Magistrate is not required to apply forensic forceps to the minutia of the procedural dealings between an appellant and each of WorkCover and Q-COMP. Neither is this Court authorised to embark on such a process.'

In this case, it is not the Commission on its own volition seeking to address whether an application for workers' compensation is valid or otherwise, but an application by the Respondent to the Appeal wishing to pursue such a course and in the view of the Commission, it is an approach they can rightfully embark upon.

In respect of criticism levelled at the Regulator by the Appellant regarding the timeliness of raising the matter with the Appellant, the facts speak for themselves and whilst it would undoubtedly have been a more efficient process to have the issue raised in or around April 2014, the fact it was raised on 24 June 2014, one month prior to the scheduled hearing, is not, in my view, an 'eleventh hour' hit on the Appellant.

The question for the Commission at this stage of the proceedings is a discrete one in that it is not to decide the merits of whether the application is alive or otherwise pursuant to s 131 of the Act, but as to whether the Commission should in fact hear arguments regarding that point.

In State of Queensland (Department of Education, Training and Employment) v

4

Q-COMP , Deputy President Bloomfield, at paragraph 15, stated:

'I also informed them that I fully concurred with Commissioner Black’s

findings (above) to the effect that, in presiding over a hearing de novo, the Commission is entitled to satisfy itself, if called upon to do so*, that an

application for workers' compensation – in this instance the Application lodged by Ms Barby which the Appellant has appealed – is not a nullity and,

in that sense, has been properly made, including whether it was lodged within the six months time limit specified at s. 131(1) of the Act. (*Note: In making this comment, I do not suggest that the Commission should embark upon a wholesale review of the decision-making processes below to ensure that every aspect of the Act has been complied with. That is not its role. However, if an Appellant seeks to raise an issue such as whether s. 131(1) has been complied with, then, having regard to the provisions of s. 558 of the Act, the Commission is required to hear and decide that issue in deciding the Appeal.).'

The same, in my view, would apply to a Respondent. Therefore, having considered the submissions of both the Appellant and Regulator in addition to the authorities relied upon, I have determined that the preliminary issue regarding the validity and enforceability of the Appellant's Application for Compensation lodged on 17 July 2013 should be disposed of in the first instance and I intend to hear argument in respect of that matter."

1

State of Queensland (Department of Education, Training and Employment) v Q-COMP (WC/2013/47) -

Reasons for Decision <

Q-COMP v Winsome Abbot (WC/2013/154) - Decision <
3
Stephen Horace MacDonald v Q-COMP (No. 2) [2008] 188 QGIG 180
4
State of Queensland (Department of Education, Training and Employment) v Q-COMP (WC/2013/47) -
Reasons for Decision <