Wang v Workers' Compensation Regulator (No. 3) - [2023] QIRC 164

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Wang v Workers' Compensation Regulator (No. 3) [2023] QIRC 164
PARTIES:	Wang, Yuehai (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2021/202
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	5 June 2023
HEARING DATES:	7 and 8 March 2023
MEMBER: HEARD AT:	Merrell DP Cairns
ORDERS:	1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 2 December 2021 is confirmed. *2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:* (a) the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 19 June 2023; and (b) unless otherwise ordered, the decision on costs be determined on the papers.
CATCHWORDS:	WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - Appellant applied for workers' compensation 20 months after the entitlement to compensation arose – WorkCover Queensland waived requirement that Appellant lodge his application for workers' compensation within six months after the entitlement to compensation arose as required by s 131(1) of the Workers' Compensation and Rehabilitation Act 2003 – Appellant did not lodge application for workers' compensation within 20 business days after the entitlement to compensation arose – WorkCover Queensland did not waive the requirement in 131(2) of the Workers' Compensation and Rehabilitation Act 2003, with the consequence that WorkCover Queensland's liability to pay compensation was limited to a period starting no earlier than 20 business days before the day on which the Appellant lodged a valid application – Appellant sought review of the decision not to waive the requirement in s 131(2) of the Workers' Compensation and Rehabilitation Act 2003 – review decision of Respondent that Appellant did not have a valid and enforceable application for workers' compensation within the meaning of s 131(1) of the Workers' Compensation and Rehabilitation Act 2003 – appeal by Appellant against review decision of Respondent – whether Appellant failed to lodge application within six months after the entitlement to compensation arose due to mistake or a reasonable cause within the meaning of s 131(6) of the Workers' Compensation and Rehabilitation Act 2003 – whether alternative claims by the Appellant that the Respondent should have waived the six month time limit in s 131(1) of the Workers' Compensation and Rehabilitation Act 2003 having regard to s 36A and s 131(5) of the Workers' Compensation and Rehabilitation Act 2003 are competent – no mistake or a reasonable cause within the meaning of s 131(6) of the Workers' Compensation and Rehabilitation Act 2003 – review decision of Respondent confirmed – parties to be heard as to costs
LEGISLATION:	Industrial Relations (Tribunals) Rules 2011, r 41 Workers' Compensation and Rehabilitation Act 2003, s 36A, s 131, s 133, 548 and s 558
CASES:	Black v City of South Melbourne [1963] VR 34 Church v (Simon Blackwood) Workers' Compensation…

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 Wang v Workers' Compensation Regulator (No. 3)

Details

AGLC: Wang v Workers' Compensation Regulator (No. 3) [2023] QIRC 164
Case: [2023] QIRC 164
Decision Date: 5 June 2023

CaseChat Overview and Summary

The case of Wang v Workers' Compensation Regulator (No. 3) involved an appeal by Mr Wang against the review decision of the Workers' Compensation Regulator. Mr Wang had applied for workers' compensation 20 months after his entitlement to compensation arose, and sought a waiver of the six-month time limit for lodging an application as required by section 131(1) of the Workers' Compensation and Rehabilitation Act 2003. While WorkCover Queensland waived the six-month time limit, it did not waive section 131(2) of the Act, which limited WorkCover Queensland's liability to pay compensation to a period starting no earlier than 20 business days before the day on which Mr Wang lodged a valid application. Mr Wang sought review of the decision not to waive section 131(2) of the Act, and the Regulator confirmed that Mr Wang did not have a valid and enforceable application for workers' compensation. Mr Wang appealed the review decision, and the central legal issue was whether the Regulator erred in law by not waiving the six-month time limit in section 131(1) of the Act. The court held that the Regulator did not err in law, as there was no mistake or reasonable cause within the meaning of section 131(6) of the Act.

The court found that Mr Wang's arguments were not persuasive, and the review decision of the Regulator was confirmed. The court held that the appeal was a hearing de novo, and the parties were to start the case again. The court found that the Regulator did not err in law by not waiving the six-month time limit in section 131(1) of the Act, and Mr Wang's arguments were not sufficient to establish a mistake or reasonable cause within the meaning of section 131(6) of the Act. The court held that the Regulator's decision was reasonable and in accordance with the law, and the review decision was confirmed. The court also held that the parties were to be heard as to costs.

Orders

Orders of the court

1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 2 December 2021 is confirmed.

2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a) the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 19 June 2023; and

(b) unless otherwise ordered, the decision on costs be determined on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 131 of the Act is a standard form of provision in workers' compensation legislation.[2][2] Green v Workers' Compensation Regulator [2019] ICQ 3 ('Green'), [30].The circumstances leading to the review decision Mr Wang claims that on 28 August 2019, when he commenced walking home from his place of employment, a motor vehicle drove onto the footpath on which he was walking, ran over his left foot and knocked him down.[3] Mr Wang did not make his application for workers' compensation until 23 April 2021 which he did by submitting a Work Capacity Certificate issued by his General Practitioner, Dr Yelena Krasnova, dated 21 April 2023.[4][3] The Amended Statement of Facts and Contentions of Mr Yuehai Wang filed on 27 May 2022 ('Mr Wang's contentions'), Attachment A, first page, paras. 1-2.[4] The Statement of Facts and Contentions of the Workers' Compensation Regulator filed on 29 June 2022, fourth page, para. 8. Mr Wang accepts that his entitlement to compensation for injury arose on 28 August 2019.[5] [5] Mr Wang's May contentions, Attachment A, fifth page, para. 1(b) and the Further Amended Statement of Facts and Contentions of Mr Yuehai Wang filed on 28 February 2023 ('Mr Wang's Further contentions'), Attachment A, fourth page, para. 1(a). The decision of WorkCover Queensland was to waive the six month time frame for Mr Wang to lodge his application for compensation, as contained in s 131(1) of the Act, such that Mr Wang had a valid and enforceable application for compensation even though he did not lodge his application within six months after the date his entitlement to compensation arose. However, WorkCover Queensland did not waive s 131(2) of the Act, such that WorkCover Queensland's liability to pay compensation was limited to a period starting no earlier than 20 business days before the day on which Mr Wang lodged a valid application, being 23 April 2021. Mr Wang applied for a review by the Workers' Compensation Regulator of the decision of WorkCover Queensland not to waive s 131(2) of the Act. By review decision dated 2 December 2021, the Regulator set aside the decision of WorkCover Queensland to waive the six month time frame and substituted a new decision, namely, that Mr Wang did not have a valid and enforceable application for workers' compensation ('the review decision'). Mr Wang appeals against the review decision. Mr Wang submitted that because he did not apply for a review of the decision to waive s 131(1) of the Act, which the Regulator set aside on review, then the review decision was not made in good faith, being a reason the Commission should set aside the review decision and substitute another decision, namely, that Mr Wang had a valid and enforceable application for workers' compensation. I cannot accept this submission. Mr Wang's appeal to the Commission, against the review decision of the Regulator, is a hearing de novo.[6] This means that the parties are to start the case again,[7] and the ambit of such a hearing is determined by the case which was before the Regulator, determined by any specific statutory provision which impinges upon the boundaries of the issue to be determined.[8] [6] Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461 ('Church'), [27] (Martin J, President).[7] Ibid [29] and [30].[8] Ibid [33].

Ratio Decidendi

Legal Principle Established

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