Fiedler v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 41

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Fiedler v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 041 PARTIES: Fiedler, Brent (Applicant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2014/187 PROCEEDING: Application for extension of time DELIVERED ON: 4 March 2015 HEARING DATE: 6 January 2015 MEMBER: Deputy President Swan ORDERS : 1. The extension of time is granted. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - application for extension of time - 'special circumstances' apply to the granting of the application. CASES: Workers' Compensation and Rehabilitation Act 2003 s 550(1)(a) Steven Pearce AND Q-COMP (C/2010/64) APPEARANCES: Ms S. Anderson, Counsel, instructed by Shine Lawyers for the Appellant. Mr J. Merrell, Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. Decision [1] On 4 November 2013, Mr Fiedler lodged an application for Worker's Compensation with WorkCover for injuries sustained during the course of his employment on that day. [2] WorkCover rejected the Appellant's application in a decision dated 15 November 2013. -- 1 of 9 -- 2 [3] The Appellant received the WorkCover decision on a date in November but cannot recall the precise date. The Appellant was advised in the WorkCover decision that an application for review of the decision must be made within three months of the date of receipt of the decision. The Appellant did not make his application for review until 17 April 2014, approximately seven weeks beyond the timeframe prescribed under section 542 of the Workers' Compensation and Rehabilitation Act 2003. [4] In a review decision dated 8 May 2014, the Regulator refused to accept the Appellant's application for review because it was made out of time. [5] The Appellant is appealing this review decision. Under s 542(3) of the Act, the Queensland Industrial Relations Commission has the discretion under special circumstances to waive the three month time frame within which an application for review can be made. Section 542 relevantly provides: "542 Applying for review a) An application for review must be made within 3 months after the person applying for review (the applicant) receives written notice of the decision or the failure to make a decision and the reasons for the decision or failure, unless subsection (4) applies. b) For subsection (1), the applicant may, within the 3 months mentioned in the subsection, ask the Regulator to allow further time to apply for review. c) The Regulator may grant the extension if it is satisfied that special circumstances." [6] Reasons given by the Appellant for the delay in appealing the review decision are:  "that the Appellant was unaware of the time required to lodge an application for review;  he was undergoing medical treatment for multiple serious injuries; and  he was tricked by his employer into not pursuing an application for compensation [Appellant submissions, Point 7]." Witnesses [7] Witness for the Appellant was:  Brent Fiedler. [8] Witness for the Respondent was  Carson Meredith, Claims Representative WorkCover. [9] In determining the question of an out of time application, the Commission must have regard to : -- 2 of 9 -- 3  the extent of the delay;  the explanation for the delay;  prejudice to the Respondent;  enthusiasm for prosecuting the Appeal; and  merits of the appeal. [10] The Appellant has outlined a Chronology of events as a background to this application. 4 November 2013. An accident occurred relating to the rolling of a truck which Mr Fiedler was driving in the course of his employment. Mr Fiedler was admitted to Hospital on the same day. 11 November 2013 Mr Fiedler booked an appointment with Shine Lawyers scheduled for 20 November 2013. 12 November 2013 Mr Fiedler was released from Hospital. 14 November 2013 Mr Fiedler received a phone call from WorkCover advising that his application for compensation was rejected. Mr Fiedler states that his employer, Mr Blackberry advised him he would pay his wages until he was able to return to work if he did not see a Solicitor. 15 November 2013 Application for Compensation rejected. The decision was received soon afterwards. Mr Fiedler did not read the entire letter from WorkCover Queensland. He was unaware that there was a three month time frame within which he was required to have the decision reviewed. 18 November 2013 Mr Fiedler cancelled his appointment with Shine Lawyers. 13 January 2014 Mr Fiedler spoke to WorkCover asking to know the identity of "Jason". He still had not read the whole of the decision. 18 February 2014 This was the date upon which Mr Fiedler's application to Review should have been lodged pursuant to s 542 of the Act. Mr Fiedler's back brace was removed in mid-February. He was contacted by Ms Blackberry, the office manager, about returning to work. Ms Blackberry requested a return to work date from Mr Fiedler as he would have to pay back the money he had been paid by the employer in his absence. -- 3 of 9 -- 4 17 April 2014 Mr Fiedler attended at Shine Lawyers and an Application for Review was lodged that day. 8 May 2014 The Workers' Compensation Regulator issued a decision to reject Mr Fiedler's Application for Review on the basis that he failed to substantially comply with the time frame within which to review the original decision. 4 June 2014 A Notice of Appeal was lodged on 4 June 2014. Brief Outline of Regulator's submissions [11] The Regulator does not question the description of the event that occurred and adds that Mr Fiedler "was not suspected of having been affected by drugs or alcohol and in circumstances where there was no evidence of speed but it was likely that the road conditions contributed to the accident". [12] The Regulator also added, "A seat belt was fitted to the vehicle but it was not being worn by the Appellant at the time of his injuries". The Regulator did not challenge the expert opinion of Dr Thomas Gibson (Biomechanical Engineer) who stated in his report of 22 December 2014: "In this case, the slow speed of the crash meant that Mr Fiedler was able to prepare and brace himself, remaining in the driver seat as the vehicle rolled to the left. In these circumstances, had Mr Fiedler been wearing a seatbelt, it is likely that he would still have sustained the chest, ribs and spinal injury."[Exhibit 1]. [13] Mr Fiedler's claim for compensation was not accepted on the basis that his injury was caused by his serious and wilful misconduct within the meaning of section 130 of the Act. [14] In terms of the time frame in which to respond to the WorkCover decision, that decision was dated 15 November 2013 and it is presumed that Mr Fiedler would have received it by 18 November 2013 (Mr Fiedler resided at Maryborough). Given that Mr Fiedler did not make his application for review until 17 April 2014, that would make his application some seven weeks out of time. Detail of Mr Fiedler's claim The extent of the Delay and Reasons for the Delay [15] It was submitted that the delay in question (7 weeks) was not a significant period of delay. [16] There are three reasons for the delay. These are:  Mr Fiedler's ignorance of the time limit within which to appeal the decision of WorkCover; -- 4 of 9 -- 5  The assurance of his employer that his wages would be paid while he was off work (which was later reversed by the employer) and  The extent of Mr Fiedler's injuries. [17] Mr Fiedler's evidence was that when he received the decision from WorkCover, it quickly became evident to him (without reading all of the correspondence) that his claim had been rejected. He had been told this the day previously in a phone call from Ms Ebony Heighway from WorkCover. [18] Mr Fiedler says that the mention of the Legislative time frame in WorkCover's correspondence did not appear until page three of that correspondence. Mr Fiedler's evidence is that he did not read this page. [19] There had been mention by the Regulator of a telephone call between Mr Fiedler and WorkCover on 13 January 2014 (this was within the Legislative timeframe to appeal the decision) where Mr Fiedler had queried the identity of "Jason" who was a person upon whose evidence WorkCover rejected Mr Fiedler's claim. The Regulator has suggested that this indicated that Mr Fiedler was aware of the decision within the Legislative timeframe and demonstrated that Mr Fiedler had read the decision to some degree. [20] Added to that situation, Mr Fiedler's case was complicated by his employer's assurance that he would pay his wages while he was off work and by the threat of a 'counter suit'. [21] The delay was also caused by the nature of Mr Fiedler's injuries. [22] These injuries were:  Fractures to T2/3/4/6/7/8/11/12;  Fractures to a total of 13 ribs;  Fractured sternum;  A significant laceration to his head, requiring multiple stitches. [23] Mr Fiedler had been treated in ICU at the Nambour Hospital before being transferred to a ward and discharged from Hospital on 12 November 2013. At that time he had been prescribed Endone, Paracetamol and Ibruprofen. He also wore a back brace for almost 3 months and he also undertook significant treatment for his injuries. [24] Mr Fiedler was declared unfit for work from his General Practitioner until 24 February 2014 - this was nine days after when he was to lodge an Application for Review had expired. [25] Mr Fiedler was cleared to return to work on full duties on 12 March 2014. During that period he had encountered pain and nightmares and after that date, his bad back continued. -- 5 of 9 -- 6 Prejudice to the Respondent [26] Mr Fiedler believes that the Respondent would not suffer any prejudice if the Appeal was allowed. The Respondent was aware of the accident shortly after it occurred and have taken steps to investigate the accident including speaking to witnesses. Prejudice to the Appellant [27] If the Appeal was refused, then the Appellant would be prevented from obtaining both statutory and potentially Common Law compensation with regard to his injuries. Enthusiasm for Prosecuting the Appeal [28] Mr Fiedler, upon discovering from a work colleague that he could appeal the decision, contacted Shine Lawyers. On that same day, the Application for Review was lodged. Regulator's Response [29] The Regulator disputes that 'special circumstances'1 on Mr Fiedler's part exist in this matter. [30] In effect, 'special circumstances' infers that "something unusual or different to take the matter out of the ordinary course" [Minister for Community Services and Health v Chee Keong Thoo Burchett J]. [31] The Regulator says that all the decisions made by Mr Fiedler were his own decisions and particularly when it came to reading the whole letter from WorkCover. It was also Mr Fiedler's decision whether or not to call a Solicitor. [32] The Regulator says that as Mr Fiedler was born in Australia and reads and writes English, he would have had no difficulty in reading all that was contained in the correspondence from WorkCover. [33] The Regulator stated that the evidence from both Mr Fiedler and Mr Carson Meredith (from WorkCover) was that Mr Fiedler had called WorkCover on 13 January 2014 to enquire about a person called "Jason" - a person who had spoken to the ambulance officer at the time of the accident regarding whether or not Mr Fiedler had been wearing a seat belt at the time. The Regulator says that this shows that Mr Fiedler had read that part of his letter from WorkCover, otherwise he would not have made any enquiry about Jason. [34] The issue of a proposition being put to Mr Fiedler by his employer was in fact not relevant. Even knowing within the three month time frame that his employer had reneged on the arrangement, Mr Fiedler had chosen to do nothing. [35] There was nothing unusual where claimants receive correspondence from WorkCover and choose to do nothing about the content. 1 Steven Pearce AND Q-COMP (C/2010/64) -- 6 of 9 -- 7 [36] In response to Mr Fiedler's claim that while in Hospital he was in no position to make relevant communications, however, the evidence shows that Mr Fiedler communicated with Mr Meredith on 28 November 2013 and prior to his going back to work in March 2014, and he was able to contact his Solicitors. Mr Fiedler was also able to make contact with a work colleague and he was also able to receive communications and have discussions with his employer about pay arrangements. [37] Mr Fiedler, during cross examination, said there was nothing to stop him from seeing a Solicitor (even at the time of the employer requesting he not see a Solicitor) to get advice. [38] The Regulator believed that the reason Mr Fiedler contacted his Solicitor did not relate to any time frame issues, but that he was enquiring about a common law claim. The Regulator states that the common law claim related to his concern that the truck had crashed because two U bolts attached to the axel had broken. He had sought a Solicitor's advice because of the common law claim and not the rejection of his claim by WorkCover. Consideration of the Evidence and Conclusion [39] The Appellant's Appeal of the Regulator's decision is 7 weeks outside of the Statutory time limit. The extent of the delay and the explanation for the delay [40] The Appellant has submitted that there are a number of reasons which should satisfy the 'special circumstances' test: The Appellant's ignorance of the time limit within which to appeal the decision of WorkCover. The assurance of his employer that his wage would be paid while he was off work (which was later reversed by the employer) and The extent of Mr Fiedler's injuries. [41] In considering these factors, it is clear that the Appellant suffered serious injuries from the accident which occurred on 4 November 2013. [42] Mr Fiedler was cleared to return to work on full duties on 24 February 2014 and this was 9 days after the time period when he was to lodge an Application for Review had expired. [43] I have cited these incidents because, in my view, they are relevant to the overall claim of Mr Fiedler. [44] It would be difficult to accept that a seriously injured worker, on medication and on the road to recovery, would be able to consider the requirements of a document with which he was unfamiliar. [45] I have accepted that, when reading the correspondence from WorkCover on 15 November 2013 and finding early on in that correspondence that his claim had -- 7 of 9 -- 8 failed, that he may not have thought it was necessary to read to the last page of that correspondence. He had already been given that information orally by WorkCover on the preceding day and was aware that his claim was rejected. [46] I have been unable to draw any conclusion from the evidence given by Mr Meredith regarding Mr Fiedler's telephone call to WorkCover before the expiration of the Appeal time frame. Mr Fiedler had seen a reference to 'Jason' in the decision and his query was about which "Jason" that might refer to. Mr Meredith agreed that was the extent of the telephone call from Mr Fiedler. The correspondence from WorkCover of 15 November 2013 refers to 'Jason' on page 1 and not on page 3 where the reference to the time frame was made. [47] As well, while Mr Fiedler could read and write English, it does not necessarily follow that he was au fait with the Rules and Regulations relating to WorkCover matters. That he was unaware of an Appeal period is not surprising. Mr Fiedler held the job of a truck driver and, for many people, unless a particular Legislative requirement is put squarely to them and the ramifications of such are explained by persons who have expertise in that area, then it is unsurprising that those requirements are not appreciated and or understood. [48] Throughout this period, Mr Fiedler says that he had been telephoned by his employer to say that if he did not see a Solicitor, then the employer would pay his wages while he was off work. To any worker, being unsure as to how he would earn any money for a period of time, that proposition, in my view, would have been attractive. Ultimately, Mr Fiedler said that proposition was reneged on by the employer. [49] Considering all of these factors, I accept that 'special circumstances' existed such that there was an adequate explanation on Mr Fiedler's part as to why he failed to lodge his Appeal documentation within the required time frame. Prejudice to the Respondent [50] In my view there is no identifiable prejudice which would be suffered by the Respondent if the matter were to proceed. Prejudice to the Appellant [51] I have accepted that the prejudice which would be suffered by the Appellant is that he would be prevented from obtaining both Statutory and potentially Common Law compensation with regard to his injuries. Enthusiasm for prosecuting the Appeal [52] In these circumstances, it is clear that once Mr Fiedler was apprised of the fact that he could lodge an Appeal against the WorkCover decision, he immediately sought out a Solicitor and on the same day, his Application for Review was lodged. -- 8 of 9 -- 9 Merits of the Appeal [53] In my view, this would not be an Appeal where it could be said that it was in any way unmeritorious that it should not proceed. [54] I have determined to grant the application for an extension of time. [55] Order accordingly. -- 9 of 9 --