Yousif v the Workers' Compensation Regulator - [2017] QIRC 47

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Yousif v the Workers' Compensation Regulator [2017] QIRC 047
PARTIES:	Yousif, Belal (Appellant) v the Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2017/5
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	26 May 2017
HEARING DATE:	4 May 2017
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Fisher
ORDERS:	1. The appeal is to determine whether an injury, namely, an aggravation of a pre‑existing psychiatric injury, which occurred on 11 November 2014 meets the requirements of s 32 of the Workers' Compensation and Rehabilitation Act 2003. 2. The Public Interest Disclosure incident which occurred on 11 November 2014 and other ongoing issues that presented on that day fall within the scope of the appeal. 3. Whether or not a particular event that arose prior to the decompensation was a factor in, or contributed to, the injury is not within the scope of the appeal. 4. The appeal is returned to the Registry for Directions to be issued.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - where consent order issued - where appeal returned to Regulator for consideration of terms of the consent order - whether Public Interest Disclosure incident and other ongoing issues within scope of appeal - whether particular events that arose prior to decompensation could be said to be a factor in or contributed to the injury.
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 31, s 32, s 131, s 552A, s 561 Bakir v Doueihi & Ors [2001] QSC 414 General Credits Limited v Ebsworth [1986] 2 Qd R 162 Radmanovich v Nedeljkovic [2002] NSWSC 212 Mercogliano v Tampas Nominees Pty Ltd (unreported, FCA, Northrop J, VG 524 of 1993) William James Watson & May Marlene Watson as trustee for WJ & MM Watson Superannuation Fund v Scott [2015] QCA 267 Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 604 Codelfa Constructions Pty Ltd v State Rail Authority [1982] HCA 24; 149 CLR 337 Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 294 ALR 550; [2012] WASCA 216 Gardiner v Agricultural & Rural Finance Pty Ltd [2008] Aust Contract Reports 90-274; [2007] NSWCA 235 Kirkpatrick v Kotis [2004] NSWSC 1265, [55]; (2004) 62 NSWLR 567 Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 Cassaniti v Paragalli [2006] NSWSC 50 Simon Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 001 Stephen Lane AND Q-COMP (C/2009/34) - Decision Craig Henry Trimble AND Q-COMP and State of Queensland (for Queensland Audit Office) (WC/2012/73) - Decision Church v Simon Blackwood (Workers' Compensation Regulator [2015] ICQ 031 Harris v Caladine (1991) 172 CLR 84
APPEARANCES:	Mr F. Abdullah, Agent for the Appellant. Mr S. McLeod, Counsel directly instructed by the Workers' Compensation Regulator.

Decision

On 30 September 2016, Deputy President O'Connor issued a consent order in Case No WC/2015/280 in the following terms:

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.

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Details

Case: [2017] QIRC 47
Decision Date: 26 May 2017

CaseChat Overview and Summary

In the matter of Yousif v the Workers' Compensation Regulator, the appeal was against the decision of the Review Unit of the Regulator, which had rejected the Appellant's application for workers' compensation. The Workers' Compensation Regulator was the respondent in this appeal before the Commission. The key issue was whether the injury claimed by the Appellant, an aggravation of a pre-existing psychiatric condition, met the requirements of s 32 of the Workers' Compensation and Rehabilitation Act 2003. The Appellant argued that various pre-existing stressors and incidents contributed to the aggravation of his condition on 11 November 2014, the date of a significant event related to a Public Interest Disclosure. The Regulator contended that the scope of the appeal was limited to the incident on 11 November 2014 and other ongoing issues on that day.

The court found that the consent order was to be construed objectively, without considering the subjective intentions of the parties. The Appellant's Statement of Facts and Contentions indicated that the injury claimed was specifically due to the incident on 11 November 2014. The court held that the consent order was meant to reflect this objective fact and that the scope of the appeal was limited to the incident on 11 November 2014 and any ongoing issues that arose on that day. The pre-existing stressors and incidents that occurred before the decompensation were not within the scope of the appeal. The court concluded that the appeal was to determine whether the injury on 11 November 2014 met the requirements of s 32 of the Act and that the appeal was returned to the Registry for further directions.

The final orders of the court were as follows: the appeal was to determine if the aggravation of the pre-existing psychiatric injury on 11 November 2014 met the requirements of s 32 of the Workers' Compensation and Rehabilitation Act 2003; the Public Interest Disclosure incident and other ongoing issues on 11 November 2014 were within the scope of the appeal; any particular event that arose prior to the decompensation was not within the scope of the appeal; and the appeal was returned to the Registry for directions to be issued.

Orders

Orders of the court

1. The appeal is to determine whether an injury, namely, an aggravation of a pre‑existing psychiatric injury, which occurred on 11 November 2014 meets the requirements of s 32 of the Workers' Compensation and Rehabilitation Act 2003.

2. The Public Interest Disclosure incident which occurred on 11 November 2014 and other ongoing issues that presented on that day fall within the scope of the appeal.

3. Whether or not a particular event that arose prior to the decompensation was a factor in, or contributed to, the injury is not within the scope of the appeal.

4. The appeal is returned to the Registry for Directions to be issued.

Background

Background to the litigation

In the event I am wrong about this conclusion I will proceed to construe the order on the basis that the inclusion of the clause, "and other ongoing issues" may give rise to doubt as to whether the scope of the consent order is limited to events on 11 November 2014 and thereafter or whether events prior to that date are included. The objective facts that were known to both parties are examined to aid in the construction.Objective Framework of Facts In this case, the order was made by consent without any hearings before the Commission having occurred. While pleadings are not a feature of this jurisdiction, the parties are required to file a Statement of Facts and Contentions. The parties agree that while these Statements cannot be equated to pleadings they are extrinsic material that can be considered to resolve issues of construction of a consent order. The Industrial Court of Queensland has not yet made any authoritative statements on the role of the Statement of Facts and Contentions. However, it is perhaps not unreasonable to believe that the Court will take a similar view about the Statements as it did with the previously required Statement of Stressors in psychological/psychiatric injury cases where it held that such a document sets the boundaries for the case to be conducted.[20] It is also noted that the Commission website advises that a party will be bound by their Statement of Facts and Contentions. Although this is not a judicial pronouncement it indicates the importance of these documents and suggests that they are intended to have the same effect as a Statement of Stressors, that is, that it provides the boundaries of the case. The Commission considers that a Statement of Facts and Contentions is admissible extrinsic evidence capable of being used to determine the surrounding circumstances.[20]Simon Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 001, [19]. The Appellant filed an application for worker's compensation in April 2015 for a condition described as "psychological system in general, anxiety/depression combined". WorkCover Queensland rejected the application on the grounds that the injury was excluded from the Act by the operation of s 32(5). WorkCover waived the time limit for applying despite being uncertain about whether the application was filed within the statutory time period. The Appellant sought a review of the decision. By decision dated 6 October 2015, the Review Unit of the Regulator decided to set aside the decision of the WorkCover and determined that the application for compensation was not valid and enforceable pursuant to s 131 of the Act because he had been assessed by a doctor earlier than 29 April 2015 as having sustained an injury, specifically 27 September 2013. The Review Officer also found that the failure to lodge the application was not for any of the reasons given in s 131(5) of the Act which operate to allow the time limit prescribed by s 131(1) to be waived. The Appellant appealed the decision of the Review Unit to the Commission (WC/2015/280).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Attached to the email was a draft consent order. The main difference between the draft and the order ultimately issued is found in order 2b. The draft order did not meet with the Appellant's agreement. Thereafter negotiations ensued by email correspondence until the parties agreed on the terms of an order which was ultimately issued as a consent order by Deputy President O'Connor on 30 September 2016.Consideration and Findings The legal principles set out earlier show that while prior negotiations may establish objective background facts, the subjective intentions of the parties which are expressed through statements and actions of the parties which are reflective of the actual intentions and expectations are inadmissible to construing the terms of the order. Although correspondence may be considered the subjective intention of the parties is inadmissible. On that basis, where the correspondence from the parties sets out their respective negotiating positions and reasons therefore leading to their agreement over the terms of the consent order, it is not capable of forming part of my consideration. The Appellant's Statement of Facts and Contentions in relation to Case No. WC/2015/280 clearly shows that the Appellant was not relying on the initial injury of anxiety and depression first diagnosed in 2011 to claim compensation (paragraph 27). The Appellant clearly contends that the application for compensation was for a specific event of aggravation (paragraph 28) resulting from the Public Interest Disclosure issue on 11 November 2014 (paragraphs 30 and 31). The event on 11 November was a meeting between the Appellant and Mr Mitchell of the employer over the Public Interest Disclosure which then resulted in the Appellant immediately seeking medical treatment. Having clarified the application for compensation was for a specific event on 11 November 2014, and having been diagnosed by a doctor within six months of that date as having an injury, the Regulator conceded the issue of the time limit. The parties' presumed intention of agreeing to order 2a was to reflect these objective facts. Although the issue of the time limit was conceded by the Regulator, the matter of injury remained. Consequently, a further purpose of the order was to make clear the matters to be remitted to the Review Unit to determine, i.e., whether the (aggravation) injury satisfied the requirements of s 32 of the Act. It is within this context that the question arises as to the effect of the provision "and other ongoing issues" if the appeal is limited to the incident on 11 November 2014. The Appellant relies on the various incidents and stressors preceding the event of 11 November 2014 to show that they contributed to the aggravation of his psychiatric injury on that day. In support of that argument reliance is placed on the decision in Stephen Lane AND Q‑COMP[21] where Hall P found that stressors which occurred over a period of time could be considered in determining whether there was an aggravation of an injury. The case of Craig Henry Trimble AND Q-COMP and State of Queensland (for Queensland Audit Office)[22] was said to be to the same effect.[21] Stephen Lane AND Q-COMP (C/2009/34) - Decision Craig Henry Trimble AND Q-COMP and State of Queensland (for Queensland Audit Office) (WC/2012/73) - Decision >The Appellant further argues that the meaning of the word "event" found in s 31(2) of the Act permits him to refer to repeated or continuous exposure to various incidents and stressors.The effect of the decisions and the meaning of the word "event" is, the Appellant submits, that he is entitled to rely on all the stressors that took place before the Public Interest Disclosure incident, together with the Public Interest Disclosure incident per se, in determining whether there was an aggravation of the injury on 11 November 2014.[23] It was contended that there was a continuing exposure to these stressors even at the time of the Public Interest Disclosure incident. This repeated exposure caused the Appellant to propose the insertion of the words "other ongoing issues" into the order.[23] T1-11, 17-20.The Appellant also refers to the use of the term "ongoing issues" in the decision of the Review Officer of 6 October 2015. Because of the inclusion of this phrase there, it was submitted that the Regulator knew what the ongoing issues were and it is now not at liberty to resile from that position.The Regulator rejects this proposition. In its view, the Review Officer's decision, while referencing an ongoing problem, did not make any findings of fact. I accept that submission. Close reading of that decision shows that the Review Officer was not accepting that there were ongoing issues, only that the Appellant and his General Practitioner referred to them in their material.The Regulator further submits that the order does not refer to the history of other alleged workplace incidents. It specifically refers to the incident on 11 November 2014 and ongoing issues on that particular day, or thereafter, if it was to be read more generously.The Appellant's argument for the acceptance of the pre-existing stressors as being contributory to the aggravation of his pre-existing injury is largely reflective of his subjective intention. However, subjective intention is not permitted when construing the terms of a consent order. Objectively, compromising the appeal on the time limit issue on the basis that one incident is said to give rise to an aggravation of an injury does not then open up for consideration of all other incidents or stressors that are also claimed to have aggravated the injury over a period of time. This is especially so when all other incidents of aggravation set out in the Statement of Facts and Contentions are written so as to indicate that each gave rise to a discrete injury. A key difference between the cases relied on by the Appellant and his matter is that his Statement of Facts and Contentions establishes the cause of his discrete injury on 11 November 2014. This is the meeting to discuss the Public Interest Disclosure issue. Another aggravating factor was the delay in the outcome of the investigation into his complaint. This was an ongoing issue. It is therefore unnecessary to consider whether stressors pre‑existing that date either independently or cumulatively caused an aggravation to the Appellant's psychiatric condition on 11 November 2014.The inclusion of the provision "and other ongoing issues on 11 November 2014" can only encompass ongoing issues that were identified in the Appellant's Statement of Facts and Contentions as contributing to the aggravation on that particular day. The generous interpretation the Regulator alluded to cannot be accepted because that would allow post-decompensation issues to be ventilated.The outcome of both approaches to the construction of the consent order is the same.Concluding CommentBefore concluding, it is necessary to respond to the Appellant's submission that the Regulator has already decided that he sustained an injury which arose out of his employment and employment was a major significant contributing factor to it and, as such, it was not now open to the Regulator to resile from those findings of fact. It is important to note that it is the decision of the Review Unit of the Regulator which is the subject of the appeal, that is, that the application for compensation was rejected. The appeal proceeds as a hearing de novo before the Commission. This contrasts with an appeal from a decision of the Commission to the Industrial Court which proceeds as a rehearing on the evidence and proceedings before the appeal body unless the Court orders additional evidence to be heard: s 561(3).The nature of a hearing de novo was discussed by Martin J in Church v Simon Blackwood (Workers' Compensation Regulator).[24]There, he cited with approval the explanation provided Dawson J in Harris v Caladine:"An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and 'the informant or complainant starts again and has to make out his case and call his witnesses'." (references omitted) [25][24] Church v Simon Blackwood (Workers' Compensation Regulator [2015] ICQ 031, [28]-[29].[25] Harris v Caladine (1991) 172 CLR 84, 124-5.Thus, all (relevant) elements of s 32 of the Act are open to be determined by the Commission.Orders1. The appeal is to determine whether an injury, namely, an aggravation of a pre-existing psychiatric injury, which occurred on 11 November 2014 meets the requirements of s 32 of the Workers' Compensation and Rehabilitation Act 2003. 2. The Public Interest Disclosure incident which occurred on 11 November 2014 and other ongoing issues that presented on that day fall within the scope of the appeal.3. Whether or not a particular event that arose prior to the decompensation was a factor in, or contributed to, the injury is not within the scope of the appeal.4. The appeal is returned to the Registry for Directions to be issued.