Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 31 (2015) 252 IR 461

INDUSTRIAL COURT OF QUEENSLAND CITATION: Church v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 031 PARTIES: LINDSAY LAURIE CHURCH (appellant) v SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR) (respondent) FILE NO/S: C/2014/46 PROCEEDING: Appeal DELIVERED ON: 27 October 2015 HEARING DATE: 20 July 2015 MEMBER: Martin J, President ORDER/S: 1. The appeal is allowed. 2. The matter is remitted to the Commission. CATCHWORDS: WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – FAILURE TO MAKE CLAIM WITHIN TIME – GENERALLY – where the decision of WorkCover to reject the appellant’s claim on the basis that it was out of time was reviewed by the respondent and set aside on the basis that the time limit was waived – where, on return of the claim to WorkCover for further assessment, WorkCover rejected the claim on the basis that it was not an injury under s 32 of the Workers Compensation and Rehabilitation Act 2003 – where the respondent upheld that decision on review – where the appellant appealed to the Commission – where the respondent requested the Commission determine a preliminary issue on review (whether the claim was out of time) – where the Commission found it had the power to determine the preliminary issue and found that the claim was out of time – whether the Commission had the power to determine whether the application for compensation was valid and enforceable Workers Compensation and Rehabilitation Act 2003, s 131, s 540, s 545, s 549(1) CASES: Harris v Caladine (1991) 172 CLR 84 R v Pilgrim (1870) LR 6 QB 89 State of Queensland (Queensland Health) v Q-COMP and Coyne (2003) 172 QGIG 1447 -- 1 of 11 -- 2 Walsh v Law Society (NSW) (1999) 198 CLR 73 APPEARANCES: PB Rashleigh instructed by Turner Freeman Lawyers for the appellant SA McLeod directly instructed by the respondent [1] Lindsay Church came to Australia from the United Kingdom in 1998 and worked as a spray painter for various employers for the next eight years. During that period he had some time off work due to a back injury. In 2007 he returned to the United Kingdom. While he was there he attended medical practitioners and told them that he had low back pain which he said was caused by doing work in Australia. He returned to Australia in 2007 and worked as a spray painter again for a few months before, again, returning to the United Kingdom. [2] In June 2013 he completed an online claim form in which he applied for compensation for a back injury. In July 2013 WorkCover rejected the claim on the basis that it had been lodged outside the period provided for in s 131 of the Workers Compensation and Rehabilitation Act 2003 (“the Act”). [3] Mr Church applied for a review of that decision and, in August 2013, the Regulator1 set aside the decision of WorkCover Queensland, waived the time limit in s 131, decided that the application was valid and enforceable, and returned the claim to WorkCover for further assessment. [4] WorkCover decided the claim by rejecting it on the basis that Mr Church had not sustained an injury within the meaning of s 32 of the Act. A review of that decision was sought and the Regulator affirmed the decision of WorkCover. [5] Mr Church then appealed that decision to the Commission. The Regulator requested that the Commission determine a preliminary point in connection with the appeal. The Regulator contended that the application originally lodged was outside the statutory time limit and that the Commission had jurisdiction to determine whether s 131 had been complied with irrespective of the “waiver” of the time limit. [6] The Commissioner held that the Commission had the jurisdiction to decide that issue and found that the application for compensation was not valid and enforceable as it had been made out of time. Grounds of appeal [7] The grounds of appeal fall into two broad categories. [8] The first category concerns the jurisdiction or power of the Commission to determine whether the application for compensation was valid and enforceable in light of the waiver of the time limit made by the Regulator. 1 Then called Q-Comp. -- 2 of 11 -- 3 [9] The second category concerns findings made by the Commissioner as to the date upon which Mr Church’s entitlement to compensation arose. [10] The appellant also argues that the Commissioner failed to give adequate reasons for her decision not to exercise a discretion, said to be available to her, to waive the time period in s 131 of the Act. The legislation [11] Section 131 of the Act provides: “(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.” (emphasis added) [12] Chapter 13, Part 2 of the Act deals with the Regulator’s review of decisions made by WorkCover or a self-insurer. Section 539 provides that the object of the Part is: “to provide a non-adversarial system for prompt resolution of disputes”. Section 540 provides that the Part applies to: (1) This part applies to the following— (a) a decision by WorkCover— (i) not to give an exemption from insuring under this Act under section 49; or (ii) to set the premium payable under a policy under section 54; or (iii) to issue a reassessment premium notice under section 56; or -- 3 of 11 -- 4 (iv) to refuse to waive or reduce a penalty under section 57, 66, 109A or 229; or (v) to refuse to reassess a default assessment under section 58; or (vi) to refuse to waive or reduce additional premium under section 64; or (vii) to waive or not to waive section 131(1) or (2); or (viii) to allow or reject an application for compensation; or (ix) to terminate or suspend payment of compensation; or (ixa) to increase or decrease a weekly payment of compensation under chapter 3; or (x) to refuse to vary an entitlement under section 171, 172 or 173; or (xi) to apportion compensation under chapter 3, part 11; or (xii) to allow or refuse an entitlement under section 212, 216 or 219; [13] Section 545 regulates the way in which the internal review of a decision by WorkCover is conducted. It provides: “(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. (1A) The Regulator may act under subsection (1)(d) only if the Regulator— (a) has considered information that was not available to, or known by, the decision-maker when the decision-maker made its decision; or (b) believes on reasonable grounds that the decision-maker did not have satisfactory evidence or information to make its decision; or (c) believes on reasonable grounds that the decision-maker has not observed natural justice in making its decision. (2) If an application is about the failure to make a decision, the Regulator may— (a) make the decision (also a review decision) after considering the information before it; or -- 4 of 11 -- 5 (b) return the matter to the decision-maker with the directions the Regulator considers appropriate. (3) The decision-maker to whom the directions are given must comply with the directions. (4) The Regulator may extend the time in subsection (1)— (a) with the applicant’s consent, to allow the applicant a right of appearance or to make representations under section 543; or (b) with the applicant’s consent, to obtain information under section 544; or (c) if the applicant applies to the Regulator in writing for time to give the Regulator further information. (5) If the Regulator acts under subsection (1)(b) or (c) or (2)(a), the decision is taken for this Act, other than this part, to be the decision of the decision-maker.” (emphasis added) [14] Section 549 provides that a claimant, worker or employer aggrieved by a review decision may appeal to the Commission. A similar provision does not exist for an insurer. Section 549(2) has the effect of allowing an insurer to appeal only against a decision mentioned in s 540(1)(a)(i) to (vi). The decision to waive or not to waive is referred to in s 540(1)(a)(vii). Thus, an insurer may not appeal against a decision to waive or not to waive s 131(1). The waiver [15] Under s 131 a 6 month time limit is imposed on the lodging of an application for compensation. An insurer, such as WorkCover, is required to waive (under s 131(4)) the application of the time limit if it is satisfied that certain special circumstances exist. Under s 131(5), the insurer has a discretion to waive the time limit if it is satisfied, among other things, that the failure to lodge within time was due to the claimant’s absence from the State or mistake. In this case, WorkCover declined to waive the time limit requirement. [16] In a letter to Mr Church of 27 August 2013, that decision was set aside by the Regulator for the following reasons: “You have lodged your application approximately 42 months after the date of the alleged injury. After reviewing your submissions, I am satisfied that there were circumstances that arose beyond your control that prevented you from lodging a claim within the statutory time period. I am satisfied that the failure to lodge the application was due to you living in the United Kingdom since 2008 and I believe you have made an honest error of judgement in failing to lodge the application in time, and I am satisfied on the -- 5 of 11 -- 6 balance of probabilities that you have been absent from the State and have established a reasonable cause to waiver (sic) the time limits required by the Act. It is my decision to waive the time frame set out in section 131(5) of the Act. Accordingly, I am satisfied the application is valid and enforceable and I now return the matter back to WorkCover, to consider if you have sustained an ‘injury’ as defined by the Act.” [17] In the same letter, Mr Church was advised: “If either party disagrees with this decision then either party may appeal to the Queensland Industrial Relations Commission in Brisbane. Either party has 20 business days from the date of receipt of this decision in which to lodge an appeal.” [18] The advice given in the paragraph referred to above is correct only so far as a claimant, worker or employer is concerned. The decision to return a matter to WorkCover cannot be appealed – see s 546(3A) – and the capacity for WorkCover to appeal is limited to the six matters contained in s 540(1)(a)(i) to (vi). [19] The effect of the decision of the Regulator was to set aside the decision of WorkCover not to waive and to substitute a decision to waive the time limit. Thus, the decision falls within s 545(1)(c) and, pursuant to s 545(5), the decision to waive is taken to be the decision of WorkCover. The questions considered by the Commission [20] Mr Church appealed the decision of the Regulator that he had not suffered a work related injury. He sought an order that his application for compensation be accepted and that his claim be referred back to WorkCover to calculate the compensation payable to him. [21] Some seven months after the appellant filed his notice of appeal, the Regulator informed him that it intended to argue on the appeal that his application for compensation did not comply with s 131. [22] When the matter came on for hearing, the Regulator was allowed to argue that the appellant’s original application was outside the time limit set in s 131. The Commissioner correctly identified the issues for determination as being: “ Does the Commission have jurisdiction to determine this issue in circumstances where the matter has previously been determined by the Regulator?  If the Commission does have jurisdiction, was Mr Church's application for compensation lodged within the time provided for by s 131(1) of the Act?  If the application has been lodged out of time, is the delay attributable to a mistake, absence from the state or reasonable cause? -- 6 of 11 -- 7  If the delay is attributable to one of more of the factors mentioned, should the discretion provided in s 131(5) be exercised to waive the requirement in s 131(1)?”2 [23] Both before the Commission and in this Court, the Regulator argued that the capacity to determine those issues was afforded by the fact that an appeal to the Commission was a hearing de novo. Hearing de novo [24] An appeal of this type has, as Hall P observed in State of Queensland (Queensland Health) v Q-COMP and Coyne3, traditionally has been treated as a hearing de novo. In order to understand the type of proceeding and the powers available it is necessary to go a little further. In Walsh v Law Society (NSW)4, McHugh, Kirby and Callinan JJ said: “[50] An appeal is a creation of statute. There are various forms of appeal. Accordingly, it is always important, where a process called ‘appeal’ is invoked, to identify the character of the appeal and the duties and powers of the court or tribunal conducting it.” [25] Some indication of the duties and powers of the Commission can be drawn from the Act and the references made to other statutes and rules of court. Chapter 13, Part 3 deals with appeals to the Commission. It sets out: who may appeal, the procedure for appeal, the time and place for hearing of the appeal and other matters. Section 553 provides that certain parts of the Uniform Civil Procedure Rules 1999 (UCPR) and the Industrial Relations (Tribunals) Rules 2011 (IRTR) apply to an appeal under Division 1 of this part of Chapter 13 of the Act. The parts of the UCPR which apply concern non-party disclosure and the use of alternative dispute resolution processes. [26] Section 554 provides that each party must give each other party any relevant document the party wants to add to use as evidence at the hearing. It is also open to the Commission to make an order requiring a claimant or worker to submit to a personal examination and, thus, allow for additional medical evidence to be produced on the appeal. [27] The blanket application of the IRTR means that the Commission can make directions orders about the filing and service of material to be relied on, notices to admit facts or documents, and that evidence be given by affidavit. Those rules, together with the other legislative instruments which apply to this type of appeal, lead to the conclusion that the appeal is to be conducted as a hearing de novo rather than an appeal by way of rehearing. [28] The nature of a hearing de novo was discussed by Dawson J in Harris v Caladine5 where he said: 2 [2014] QIRC 158 at [19]. 3 (2003) 172 QGIG 1447. 4 (1999) 198 CLR 73. 5 (1991) 172 CLR 84. -- 7 of 11 -- 8 “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’: Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd.; see also Reg. v. Pilgrim; Campbell,‘Judicial Review and Appeals as Alternative Remedies’, Monash University Law Review. A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again: see Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd.; Quilter v. Mapleson; and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan .”6 (citations omitted, emphasis added) [29] In describing the nature of a hearing de novo, Dawson J refers to the parties commencing “the application again”. In order to understand what is before the Commission it is necessary, then, to determine what the “application” is. It was put in another way by Lush J in R v Pilgrim7 where he said: “Generally speaking, on appeal to the quarter sessions the justices are not limited to the evidence before the petty sessions, but they have to hear the whole matter de novo, and the issue is the same, and the justices are put in the same position as the justices in the court below.”8 (emphasis added) [30] While it is correct to say that the parties start again, it is necessary to determine what it is that the parties are starting again. As Dawson J said in Harris v Caladine the “complainant starts again and has to make out his case and call his witnesses”. What is the “case” to be made out? If, as Lush J put it: “the issue is the same”, what is the “issue”? 6 Op cit at 124-125. 7 (1870) LR 6 QB 89. 8 Op cit at 95. -- 8 of 11 -- 9 What was the issue to be decided? [31] In this case, the case or issue able to be taken on appeal to the Commission by Mr Church is the decision of the Regulator to affirm the decision of WorkCover. The decision of WorkCover which was affirmed by the Regulator was a decision that Mr Church had not sustained an injury within the meaning of 32 of the Act. It was not a decision that related to whether or not Mr Church had filed his application for compensation within time. By the time this part of Mr Church’s case was considered by WorkCover, it had already, by virtue of the operation of s 545(5), “made” the decision to waive the time limit and it was not revisited. [32] In concluding her decision on this point, the Commissioner said: ‘[30] … I have formed the view the Commission is not prevented from examining and determining whether or not s 131 has been complied with on appeal where a question with respect to compliance is raised by one of the parties. [31] In particular, a prior decision or even the absence of a decision during an applicant's interaction with either the Regulator or WorkCover in their assessment of a claim for workers' compensation with respect to the waiving or otherwise of the time limitation under s 131, does not in my view prevent the Commission from examining and determining whether s 131 has been complied with on appeal. … [33] Whilst it is clear on the authorities that it is not the Commission's role to go back and delve down into every aspect of the legislation, and in particular the numerous determinations that can arise during the administrative review stage, by lodging an Appeal the Appellant has, in effect, opened the gates for both itself and/or the Respondent to request the Commission to determine, having regard to its powers at s 558, any number of preliminary issues, including compliance with s 131 of the Act. [34] In my view, Mr McLeod is correct in his assertions that there are no current authorities preventing the Commission from dealing with a particular matter relating to a claim, simply because it had previously been determined in favour of a claimant during the administrative review process. [35] In a practical sense, if the Appellant's arguments were accepted, then the Regulator would be bound by findings in its previous review decisions related to a particular claim, to the extent that it could result in a situation where, for example, a determination that a claimant was a "worker" during the review process would have to be maintained even in circumstances where additional evidence might support a different finding from the Commission.” [33] That reasoning does not, with respect, accord with the role of the Commission in a hearing de novo. For the reasons I have set out above, the lodging of an appeal to the Commission -- 9 of 11 -- 10 does not “open the gates” for both parties to the appeal to request the Commission to determine “any number of preliminary issues”. The ambit of such a hearing is determined by the case which was before the Regulator. It is also determined by any specific statutory provision which impinges upon the boundaries of the issue to be determined. [34] The question which is raised in this case is quite distinct from the circumstances argued by Mr McLeod. It was submitted that preventing the Commission from considering the issue of the time limit under s 131 would have the effect of preventing the Regulator or a claimant from departing from a stance such as the acceptance by the Regulator that an injury was work-related. I accept that an insurer, a claimant and the Regulator might proceed on the basis that a certain set of facts exists. For example, it is not unusual for an insurer or the Regulator to accept that a claimant is a “worker” within the meaning of the Act or that it is accepted that an injury is work-related. Those are matters which can be the subject of further evidence in a hearing before the Commission. Those are matters which can be the subject of further argument in such a hearing. But those are questions of fact. [35] In the quite limited circumstances of this case, the Regulator was faced by the decision it had made to waive the time limit prohibition. This was an acceptance that the application had been out of time but that the Regulator determined not to enforce the time limit. By waiving that limit, the Regulator’s decision became the decision of the insurer. The decision of the insurer was not before the Commission. The Act does not have any specific provisions relating to the insurer or the Regulator accepting “for the time being” any particular state of affairs. It does, though, have the specific provision in s 131 whereby an insurer has the discretion to waive the time limit. [36] It is of importance to note that a claimant, worker or employer aggrieved by the decision to waive s 131 may appeal that decision (s 549(1)) but that an insurer cannot appeal that particular decision (s 549(2)). This places the decision about waiver in a different category to that group of assumptions or concessions which are often made relating to, for example, whether a claimant is a “worker”. Thus, when the Regulator decides to overturn the insurer’s decision not to waive the time limit, and s 545(5) takes effect, there can be no further internal review of that decision and no appeal of the decision by the Regulator. It would be contrary to the structure of the Act and the object in s 539 to allow the matter to be re-opened in a hearing before the Commission. [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 -- 10 of 11 -- 11 (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. [39] The Commission did not, in the circumstances of this case, have the power to consider and then to vary the decision of the Regulator to waive the time limit. [40] In the light of that decision, the other grounds of appeal need not be considered. Conclusion [41] The appeal is allowed. The matter is remitted to the Commission. -- 11 of 11 --