Wicks v Workers' Compensation Regulator - [2021] QIRC 1

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

_CITATION:	Wicks v Workers' Compensation Regulator [2021] QIRC 001
PARTIES:	Wicks, Helen (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO.:	WC/2020/4
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	4 January 2021
HEARING DATE:	On the papers
MEMBER:	Merrell DP
DATES OF WRITTEN SUBMISSIONS:	Respondent's written submissions: 28 July 2020 Appellant's written submissions: 11 August 2020
ORDERS:	1. The Respondent's application in existing proceedings filed on 8 June 2020 is dismissed. 2. The parties are to file written submissions of no more than 2 pages by 4.00 pm on 22 January 2021 in relation to costs.
CATCHWORDS:	WORKERS' COMPENSATION - ENTITLEMENT TO AND LIABILITY FOR COMPENSATION - worker made application for workers' compensation pursuant to the Workers' Compensation and Rehabilitation Act 2003 for aggravation of a psychiatric/psychological injury - application for compensation made out of time - no express waiver of the time limit in WorkCover decision - WorkCover rejected application on the basis that the worker's injury arose out of or in the course of the worker's expectation or perception of reasonable management action being taken against the worker - worker applied for review to the Workers' Compensation Regulator - Regulator confirmed the decision of WorkCover and made no reference to the worker's application for compensation being made out of time - worker appealed Regulator's decision to the Commission - application in existing proceedings by the Regulator to dismiss worker's appeal - whether Regulator can now raise the fact the worker's application for compensation was made out of time so as to dismiss the application for workers' compensation - Regulator's application in existing proceedings dismissed
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003, s 32, s 131, s 540, s 541, s 545, s 548, s 549 and s 558
CASES:	Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461 Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 Kim v Workers' Compensation Regulator [2019] ICQ 14 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Lowis v Workers' Compensation Regulator [2019] QSC 5 Wicks v Workers' Compensation Regulator [2018] QIRC 063 Workers' Compensation Regulator v Yates [2015] QIRC 174
APPEARANCES:	Ms H. Blattman of Counsel directly instructed by Ms K. Bednarek of the Workers' Compensation Regulator Mr J. Shepley of Counsel directly instructed by Ms H. Wicks

Reasons for Decision
Introduction

Ms Helen Wicks was employed by Capilano Honey Ltd as a Graphic Designer. On 24 November 2015, Ms Wicks made an application for workers' compensation for a psychological injury sustained on or about 11 November 2015. WorkCover Queensland rejected that application and on 9 March 2017, the Workers' Compensation Regulator confirmed WorkCover's decision on review. An appeal to this Commission by Ms Wicks against the Regulator's 9 March 2017 review decision was dismissed.[1]
[1] Wicks v Workers' Compensation Regulator [2018] QIRC 063, [177] (Industrial Commissioner Knight).
On or about 15 March 2017, Ms Wicks lodged a further claim for workers'…

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 Wicks v Workers' Compensation Regulator

Details

AGLC: Wicks v Workers' Compensation Regulator [2021] QIRC 1
Case: [2021] QIRC 1
Decision Date: 4 January 2021

CaseChat Overview and Summary

The case of Wicks v Workers' Compensation Regulator involved a worker seeking workers' compensation for an aggravation of a psychiatric injury, which was denied by the Workers' Compensation Regulator. The worker had applied for compensation outside the statutory time limit, and the Regulator had rejected the application based on the injury arising from the worker's perception of reasonable management actions. The worker appealed to the Commission, and the Regulator sought to dismiss the appeal on the grounds that the application was made out of time. The court had to determine whether the Regulator could raise the issue of the application being out of time to dismiss the appeal.

The central legal issue was whether the Regulator could introduce new arguments in the appeal that were not considered in the review decision. The court examined the statutory framework and found that the appeal was governed by the review decision and not by the earlier WorkCover decision. The court held that the Regulator's argument about the implicit waiver of the time limit by WorkCover was not relevant to the review decision. The court also noted that the Regulator's attempt to distinguish the case from a previous case was not convincing, as the core issue remained the same.

The court ruled that the Regulator's application to dismiss the appeal was dismissed. The court clarified that the appeal was to be considered de novo based on the review decision, and not on the earlier WorkCover decision. The court found that the Regulator's argument about the time limit was outside the scope of the review decision and therefore could not be considered. The court also rejected the Regulator's attempt to distinguish the case from a previous case on the basis that the core issue remained the same.

The final orders of the court were that the Regulator's application to dismiss the appeal was dismissed, and the parties were directed to file written submissions regarding costs by a specified date. This decision reinforces the principle that appeals to the Commission are based on the review decision and not on earlier decisions, and that new arguments not considered in the review decision cannot be introduced in the appeal.

Orders

Orders of the court

1. The Respondent's application in existing proceedings filed on 8 June 2020 is dismissed.

2. The parties are to file written submissions of no more than 2 pages by 4.00 pm on 22 January 2021 in relation to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Church, Martin J, President, held:[37]Further, the appeal to the Commission is with respect to the “review decision”. As set out above, a “review decision” is defined in s 545 in the following way:“(1) The Regulator 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 Regulator considers appropriate.”[38]That definition provides the boundaries of the hearing before the Commission on appeal. The sections of the Act which deal with an appeal to the Commission apply to “review decisions”. The review decision in this case was to affirm the decision of WorkCover that Mr Church had not sustained an injury within the meaning of the Act. The provisions of the Act which deal with appeals do not contemplate that another issue, removed in time and effect from the review decision, would be able to be considered. In my opinion, Martin J, President, at paragraph [33] in Church was not referring to specific statutory provisions which were removed in time and effect from the review decision of the Regulator. The decision that Ms Wicks did not have an injury within the meaning of s 32 the Act was a decision to which ch 13, pt 2 of the Act applied.[39] The Regulator's subsequent review decision was that Ms Wicks did not have an injury within the meaning of s 32 of the Act. What is to be considered by way of a de novo hearing before this Commission is whether Ms Wicks had an injury within the meaning of s 32 of the Act.[39] Workers' Compensation and Rehabilitation Act 2003 s 540(1)(a)(viii). In my view, whether or not WorkCover implicitly waived the time limit in s 131(1) of the Act is not the issue. What identifies the case before this Commission, by way of an appeal de novo against the review decision, is the review decision and not the WorkCover decision. In any event, the Regulator's submissions about this point are not persuasive. In Lowis v Workers' Compensation Regulator[40] ('Lowis'), Crow J found, on the facts of that case, that WorkCover had implicitly waived the time limit in s 131(1) of the Act.[41] The Regulator submits that the present case is not like Lowis because in Lowis an application had been made in time but the applicant later changed his nomination as to the identity of his employer and WorkCover registered it as a 'new' claim although there was only one injury. The Regulator contends that because Ms Wicks' case concerns different injuries, arising on different dates and out of different circumstances, there is no basis for a similar finding.[42] [40] [2019] QSC 5.[41] Ibid [19].[42] The Regulator's submissions, para. [22]. I cannot accept that as a material point of distinction. The decision by WorkCover to waive the time limit was necessarily implicit, in WorkCover determining Ms Wicks' further application, by WorkCover deciding that Ms Wicks did not have an injury within the meaning of s 32 of the Act.

Ratio Decidendi

Legal Principle Established

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