De Alwis v Simon Blackwood (Workers' Compensation Regulator) [2017] QIRC 83

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: De Alwis v Simon Blackwood (Workers’ Compensation Regulator) [2017] QIRC 083 PARTIES: Duwadisawage Sricassimal De Alwis (Appellant) v Workers’ Compensation Regulator (Respondent) CASE NO/S: B/2017/1 and B/2017/20 PROCEEDING: Applications to reopen proceedings DELIVERED ON: 7 September 2017 HEARING DATE/S: WRITTEN SUBMISSIONS: 5 April and 3 May 2017 Appellant – 9 June 2017 Respondent – 30 June 2017 HEARD AT: Brisbane MEMBER: The Hon L Kaufman, Deputy President ORDER/S: 1. Each application to reopen proceedings is dismissed. CATCHWORDS: APPEAL – APPLICATION FOR REOPENING –WORKERS’ COMPENSATION – where appellant had appeals dismissed at the Commission and Industrial Court – extraordinary circumstances required to warrant reopening a matter – where opportunity afforded at first instance and on appeal – public interest that there be finality in litigation CASES: Autodesk Inc v Dyason & others (1993) 176 CLR 300 Blackwood v Toward [2015] ICQ 008 Church v Blackwood [2015] ICQ 031 De Alwis v Blackwood (Workers’ Compensation Regulator) [2016] ICQ 8. De Alwis v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 158 Industrial Relations Act 2016 s 1023 -- 1 of 10 -- 2 Industrial Relations Act 1999 s 280 Re Teachers Award – State (1974) 86 QGIG 611 WorkCover Queensland v Downey (2001) 168 QGIG 381 Workers Compensation and Rehabilitation Act 2003 ss 32, 35, 131, 141, 448, 550, 560A APPEARANCES: Mr Duwadisawage Sricassimal de Alwis, representing himself Ms E Hoiberg, counsel, prepared written submissions for the appellant Mr S McLeod, counsel, directly instructed by the Workers’ Compensation Regulator Reasons for Decision Background [1] On 17 April 2014, Mr Duwadisawage Sricassimal de Alwis lodged an application for workers’ compensation for a psychological injury with WorkCover Queensland. [2] On 5 July 2014, WorkCover rejected Mr de Alwis’ application on the basis that he had not sustained a psychological injury within s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 (WCR Act). [3] On 5 November 2014, the Workers' Compensation Regulator affirmed WorkCover’s decision to reject Mr de Alwis’ application in accordance with s 32 of the WCR Act, the review officer concluding that "the provisions of section 35(2) of the Act exclude the psychiatric/psychological condition from the definition of 'injury' within section 32(1) of the Act". [4] On 3 December 2014, Mr de Alwis lodged a Notice of Appeal against the decision of the regulator pursuant to s 550 of the WCR Act. [5] On the appeal, the regulator raised, for the first time, as a preliminary issue whether Mr de Alwis’ claim for compensation had been lodged within the time allowed by s 131 of the WCR Act. [6] Industrial Commissioner Thompson heard the preliminary point on 1 and 2 June 2015 and, on 26 August 2015, found that Mr de Alwis had failed to lodge an application within six months of the entitlement to compensation arising as required by s 131(1) of the WCR Act, that his application for compensation was not valid or enforceable and that there was no case to waive compliance under s 131(5).1 1 De Alwis v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 158 -- 2 of 10 -- 3 [7] On 4 April 2016, Martin J, the President of the Industrial Court of Queensland dismissed Mr de Alwis’ appeal against the decision of Industrial Commissioner Thompson.2 [8] On 19 December 2016, Mr de Alwis lodged an application with the Commission to reopen the decision of Commissioner Thompson pursuant to s 280 of the Industrial Relations Act 1999. [9] On 21 December 2016 Mr de Alwis made an amended application to reopen proceedings under s 280 of the Industrial Relations Act 1999. [10] On 5 April 2017, I heard Mr de Alwis' application for reopening. He was unrepresented and the regulator was represented by an appeals officer, Mr Gavin Clark. [11] As was the case with the appeal to the Court the application for reopening was discursive and argumentative and it was difficult to understand the way in which the application was put and on and what basis the applicant sought to reopen the proceedings. In the circumstances I asked him, at the hearing, to articulate each of the grounds upon which he sought to reopen and dealt with each ground as he presented it. [12] At the conclusion of the hearing, having given Mr de Alwis, my reasons for rejecting each ground as he dealt with them, I dismissed Mr de Alwis’ application for reopening. Subsequently, Mr de Alwis sought written reasons for my decision. [13] Whilst preparing my written reasons it occurred to me that, as both WorkCover and the regulator had rejected the application on the basis that Mr de Alwis had not suffered a compensable injury, the decision in Church v Blackwood3 might have some bearing on the ability of the Commission to have considered the question of whether Mr de Alwis' application for compensation had been filed within the prescribed time period. Consequently I relisted the matter for mention on 3 May 2017, at which time Mr S McLeod, of counsel, appeared for the regulator and Mr de Alwis again appeared on his own behalf. Mr McLeod submitted that Church is distinguishable and may be disregarded. As the matter seemed to me to be of some complexity, I adjourned the hearing in order to enable Mr de Alwis to obtain legal representation. This he was able to do, and, on 9 June 2017, in accordance with my directions, he filed a submission prepared by Ms E Hoiberg of counsel. The regulator filed its outline of submissions on 30 June. [14] Church and another significant judgment, Toward4, were delivered during the time frame outlined above; Toward on 24 March 2015, and Church on 20 July 2015. I will return to these judgments later in these reasons. The legislative scheme [15] It is necessary to have regard to some parts of the WCR Act. Ms Hoiberg set them out thus [the emphasis is mine]: “131 Time for applying 2 De Alwis v Blackwood (Workers’ Compensation Regulator) [2016] ICQ 8 3 [2015] ICQ 031 4 Blackwood v Toward [2015] ICQ 008 -- 3 of 10 -- 4 (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.” 6. WorkCover’s obligation to consider an application for compensation is provided for in s 134: “134 Decision about application for compensation (1) A claimant’s application for compensation must be allowed or rejected in the first instance by the insurer. (2) The insurer must make a decision on the application within 20 business days after the application is made. (3) The insurer must notify the claimant of its decision on the application. (4) If the insurer rejects the application, the insurer must also, when giving the claimant notice of its decision, give the claimant written reasons for the decision and the information prescribed under a regulation. (5) Subsection (6) applies if the insurer does not make a decision on the application within the time stated in subsection (2). (6) The insurer must, within 5 business days after the end of the time stated in subsection (2), notify the claimant of its reasons for not making the decision and that the claimant may have the claimant’s application reviewed under chapter 13.” 7. A claimant may apply to the Regulator for a review of any of the decisions listed in s 540(1)(a), which include a decision by WorkCover: -- 4 of 10 -- 5 “(vii) to waive or not to waive section 131(1) or (2); or (viii) to allow or reject an application for compensation”. [I interpolate to note that Mr de Alwis applied for the review of the decision not to waive s 131(1)] 8. Section 545 sets out the Regulator’s powers on a review: 545 Review of decision or failure to make a decision (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. 9. A claimant may then appeal to the Commission against a decision of the Regulator made under s 545: ss 548(1)(a) and 549. 10. In deciding the appeal, the Commission may (s 558(1)): (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 respondent with the directions the appeal body considers appropriate. 11. The “decision” here refers to the review decision of the Regulator made under s 545: see s 548(1)(a). 12. A decision of the Commission is further appealable to the Industrial Court: s 560A. 13. Section 280 of the Industrial Relations Act 1999, the subject of the present proceedings,5 permits the Commission to reopen a previous decision: “280 Procedures for reopening (1) Proceedings may be reopened, on application by a person under subsection (2), by— (a) for proceedings taken before the full bench—the full bench; or (b) otherwise—the commission. (2) An application for reopening of proceedings may be made by— (a) the Minister; or (b) a party to the proceedings; or (c) for proceedings that are not about a certified agreement— 5 As Mr de Alwis’s application for reopening was filed before the commencement of the Industrial Relations Act 2016, the Industrial Relations Act 1999 continues to apply: Industrial Relations Act 2016 s 1023 -- 5 of 10 -- 6 (i) an organisation whose members are bound by, or claim to be affected by or dissatisfied with, the proceedings; or (ii) a person who is bound by or claims to be affected by or dissatisfied with the proceedings, and who satisfies the commission that the person is not an officer of, or acting for, an eligible association. (3) If the commission reopens proceedings, it may— (a) revoke or amend a decision or recommendation made by it; and (b) make the decision or recommendation it considers appropriate. … (6) If the commission grants an application for reopening, it may give the retrospective operation to its decision made in the reopened proceedings it considers appropriate.” [16] It is necessary to set out some additional facts. [17] Mr de Alwis had been visiting doctors since 2009 in relation to work related stress. In at least one workers' compensation medical certificate his date of injury was stated as being 16 April 2009.6 [18] Prior to 16 April 2014, Mr de Alwis had discussed the making of a workers' compensation application with his psychiatrist, but had been told that he would not have a case in workers' compensation because of the operation of s 32(5) of the WCR Act.7 [19] The judgment in Toward was delivered on 25 March 2015. That is subsequent to the decision of WorkCover and the regulator's review unit decision, neither of which referred to the issue of whether Mr de Alwis' application had been made within time. [20] Prior to 25 March 2015 the law relating to when an entitlement to compensation arises, having regard to ss 131 and 141 of the Act, had been expounded by Hall P in WorkCover Queensland v Downey8. Hall P had held the expression "assessed by a doctor" in the equivalent of s 141(1)(a) "must be taken to mean 'assessed by a doctor as resulting in total or partial incapacity for work'". [21] Given that Mr de Alwis had not been so assessed until 16 April 2014, the day before he made his application for compensation, it is not surprising that the issue of timeliness was not considered by WorkCover or the review unit of the regulator. [22] By the time Mr de Alwis' appeal came on for hearing in the Commission on 1 June 2015, Martin J had delivered his reasons in Toward, where his Honour held: "In order for a doctor to 'assess' an injury as an 'injury' within the meaning of the Act there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment." His Honour concluded that the earlier construction of the WCR Act was incorrect and held that it should not be followed.9 6 De Alwis v Blackwood [2015] QIRC 158 at [6] 7 Ibid at [11] 8 WorkCover Queensland v Downey (2001) 168 QGIG 381 9 Blackwood v Toward [2015] ICQ 008 at [21], [24] -- 6 of 10 -- 7 [23] Having regard to the decision in Toward it is unremarkable that the regulator took the "out of time" point on the appeal, despite that issue not having been considered by the review unit. Mr de Alwis did not take the point that that issue had not been dealt with in the review decision under appeal. [24] Prior to the decision in Church it seems that the generally held view was that because an appeal against a decision of the review unit is conducted as a hearing de novo all issues relevant to determining whether an application for compensation could succeed were live issues on the appeal. The commissioner at first instance in Church canvassed many of the decisions concerning a hearing de novo and held that it was open to her to determine whether Mr Church's application for compensation had been valid and enforceable. [25] Industrial Commissioner Thompson dismissed Mr De Alwis' appeal to the Commission on 26 August 2015 on the basis that it was not valid or enforceable, two months before Martin J delivered his decision in Church. [26] The facts in Church are fairly similar to the facts in this case. The significant difference is that in Church WorkCover had rejected the claim on the basis that it had been lodged out of time. The regulator, by its review decision, waived the time limit in s 131, decided that the claim was valid and enforceable, and returned the claim to WorkCover for further assessment. WorkCover then decided the claim by rejecting it on the basis that Mr Church had not sustained an injury within the meaning of s 32. The regulator affirmed that decision on review. [27] On Mr Church's appeal to the Commission the regulator argued that the application originally lodged was outside the statutory time limit and that the Commission was empowered to determine that issue, notwithstanding the earlier waiver of the time limit by the regulator. The commissioner allowed that argument to be put and found, applying Toward, that the original application was not valid and enforceable as it had been made out of time. [28] On appeal to the Court the President held that the ambit of the appeal in the Commission is determined by the case that was before the regulator and by any specific statutory provision which impinges upon the boundaries of the issue to be determined.10 His Honour concluded, after outlining what the nature of a "review decision" under s 545 of the WCR Act, "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.11 [29] Similarly here, the review decision in this case was to affirm the decision of WorkCover that Mr de Alwis had not sustained an injury within the meaning of the Act. 10 Church v Blackwood [2015] ICQ 031 at [34] 11 Church v Blackwood [2015] ICQ 031 at [38] -- 7 of 10 -- 8 [30] I would be minded to find, applying Church, that the only issue the Commission in this case was empowered to deal with was the decision of the regulator to affirm the decision of WorkCover, that Mr de Alwis had not sustained an injury within the meaning of the Act. I would be so minded largely for the reasons advanced by Ms Hoiberg in her written submissions. However, for reasons that follow it is not necessary, nor desirable, that I determine this point. [31] Mr de Alwis' journey does not end with his appeal to the Commission. On 14 September 2015, he appealed the decision of the Commission to the Court. He represented himself at the hearing on 19 November 2015 and the regulator was represented by Mr S McLeod, of counsel. Martin J dismissed Mr De Alwis' appeal on 4 April 2016.12 His Honour concluded that "The appellant has not identified any error in the method used by the Commissioner in assessing the evidence or in his application of the relevant law."13 Thus the decision of Industrial Commissioner Thompson that Mr de Alwis' was not valid or enforceable as it had been made out of time stood. [32] It is manifestly in the public interest that there be finality in litigation. The reopening of proceedings is an exceptional step that would not normally occur unless the earlier judgment had proceeded on a misapprehension of the facts or the law.14 Generally speaking, the jurisdiction to reopen is not to be exercised unless it can be show that, without fault on the applicant's part, he or she has not been heard on the relevant question. Despite Church not having been decided until after the decision in the Commission, but before the hearing in the Court, the point was at all times open to have been taken. That is what Mr Church did in his successful appeal to the Court. [33] Despite Church having been decided on 27 October 2015, Mr de Alwis did not raise it on the appeal to the Court on 19 November 2015. In fact, an examination of the transcript reveals that Church was not adverted to by anybody. I appreciate that Mr de Alwis was not represented, but, nevertheless, the appeal to the Court gave him the opportunity to seek to have the decision of the Industrial Commissioner overturned on the basis of the decision in Church. As I said, the point was open to be taken on his appeal to the Commission, even though Church had not been decided at that time. [34] Mr de Alwis had the opportunity to argue before Industrial Commissioner Thompson that the Commission did not have jurisdiction to entertain his appeal on the basis that his application for compensation had been made outside the statutory time limit. This was subsequently argued, successfully, in Church. He also had that opportunity on 19 November 2015 on his appeal to the Court against the decision of the Industrial Commissioner. That he was self-represented does not denigrate from the force of these propositions. [35] In these circumstances, I am not prepared to order that the proceedings be reopened. Although, arguably, the proceedings before Industrial Commissioner Thompson proceeded on a misapprehension of the law as it was later expounded in Church, Mr de Alwis could have made this argument before the Court. It cannot be said that there was no fault on his part in not being heard on this point; he did not raise it. 12 De Alwis v Blackwood [2016] ICQ 008 13 Ibid at [15] 14 Autodesk Inc v Dyason & others (1993) 176 CLR 300 -- 8 of 10 -- 9 [36] Another factor relevant to the exercise of my discretion in deciding not to allow Mr de Alwis to reopen the proceedings is the fact that his application for reopening was not made until nearly nine months after his appeal to the Court had been dismissed. [37] In the circumstances, I do not need to consider whether I have the power to reopen in circumstances where I had previously dismissed Mr de Alwis' application on other grounds. Nor do I need to consider whether his second application to reopen is an abuse of process. Nor do I need to consider whether it is open to reopen proceedings in the Commission where the decision in those proceedings has been the subject of an appeal to the Court. [38] For completeness, I also summarize the reasons I gave orally for dismissing the application to reopen. [39] Mr de Alwis' application for reopening was discursive and argumentative. Consequently, it was very difficult to understand on what basis he sought to reopen the proceedings. [40] It was in those circumstances that I asked him to state each of the grounds upon which he sought to reopen and, because he was unrepresented I thought it best to deal with each ground as he presented it. [41] At the conclusion of his submissions I dismissed his application. Slightly expanded and edited these are my reasons for dismissing the application to reopen. [42] Mr de Alwis seemed to argue that because s 141(2) of the Workers’ Compensation Rehabilitation Act, speaks of when the entitlement to weekly payment of compensation arises, his entitlement to compensation was governed by that subsection rather than subsection (1). He argued that because he remained in the employ of the Department of Housing and Public Works until April 2014 his application for compensation was somehow within time. I pointed out to him that he didn’t get to the stage of entitlement to weekly payments until he could establish that his application for compensation was filed within time. This he had failed to do both at first instance and on appeal to the Commission and to the Court. [43] The next ground was that the regulator had made a mistake in not waiving the time for applying for compensation under section 131(1) & (2) and that it had been impossible to apply within time because apparently his general practitioner had declined to make the application at the time of the consultation. I rejected this ground as it was manifestly something that had been, or should have been argued at first instance. [44] Mr de Alwis then sought to raise a principle that he referred to as “waxing and waning” which appears to be an attempt to argue that the injury diagnosed in 2010 was not the injury in respect of which he had a diagnosis in 2014. Therefore, it should have been found that entitlement to compensation arose in 2014 and that therefore his application for compensation was made within time. Again these are matters which had been, or should have been, previously canvased and did not form a basis for reopening. [45] The next basis upon which Mr de Alwis sought to reopen was that he alleged that the Vice President had told him that all he had to do was demonstrate that the injury in 2010 was different to that of the injury in 2014. Whether that is so or not, the applicant had -- 9 of 10 -- 10 every opportunity at first instance and on appeal to argue that point. Again, this is no basis upon which an exercise to reopen would be exercised. [46] The principles in relation to reopening matters are fairly clear and were referred to by Mr Clarke who cited Re Teachers Award – State15 (1974) 86 QGIG 611 at 613 where a Full Bench of the Commission said that: “This Commission holds the strong view that a matter which has been fully argued by all of the parties, and in respect of which a decision has been given on the merits, should only be re-opened if it can be shown that some vital and relevant material which was not available at the hearing is now available or that the Commission has made an obvious error or created clear anomalies or has been somehow misled in arriving at its original decision.”. [47] It would require extraordinary circumstances, even if there be the power, to warrant reopening a matter in this Commission after the decision of the Commission had been appealed to the Court. I am not satisfied that the applicant has demonstrated such circumstances. [48] Each application for reopening of proceedings must be dismissed. I am not minded to make any order as to costs, but will hear the regulator on this issue should it apply. 15 (1974) 86 QGIG 611 at 613 -- 10 of 10 --