Burke v Q-COMP [2013] QIRC 127

CITATION: Dominic Burke AND Q-COMP (WC/2013/86) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 appeal to commission Dominic Burke AND Q-COMP (WC/2013/86) VICE PRESIDENT LINNANE 28 August 2013 DECISION [1] This matter is an appeal by Dominic Burke (Appellant) against a decision of Q-COMP dated 6 March 2013. The Q-COMP decision in the matter is as follows: "There is no discretion in Chapter 12 of the Workers' Compensation and Rehabilitation Act 2003 for Q-COMP to extend the period of time for you to lodge an application for review when you have not asked for that extension within the three month period for you to lodge your application. As the delegate of Q-COMP I have determined that you did not substantially comply with the three-month timeframe for lodging the application for review provided by section 542 of the Workers' Compensation and Rehabilitation Act 2003. Consequently, your application for review is not compliant and no further action will be taken on your application.". [2] This appeal thus related to an application for review to Q-COMP received by them on 18 February 2013 concerning a decision of WorkCover Queensland (WorkCover) which was made on 9 December 2010. There was thus a delay of approximately two years and three months in the Appellant lodging his application for review. It does not appear on the record that the Appellant provided any reasons for this substantial delay or any medical evidence indicating any incapacity on his part to lodge the application for review within the legislative timeframe. The Appellant lodged this appeal against the Q-COMP decision with the Industrial Registry on 15 March 2013. [3] On 4 April 2013 the appeal was listed for Callover on 23 April 2013. The Industrial Registry received an e-mail from the Appellant on 15 April 2013 to say that he could not make the Callover but could be contacted on a particular telephone number. In that email the Appellant went on to state the following: "… I have spoken to WorkCover and we are, or at least were, in agreeance [sic] that my claim should succeed as indicated in Federal Maggy Jarrets [sic] decision as he well & truly discovered my employer, Serco to be unetical [sic] dishonest gutter filth who were found to be exactly that. However, in forcing me to pursue this through their bullying standover actions I seek interest, super and stress & anxiety for the period Serco deliberately lied and cost me my rental house & quality of life…". [4] On the day of receipt of this email, my Associate telephoned the Appellant and advised him that he would need to complete the Callover Information Sheet and return it to the Industrial Registry prior to 23 April 2013. On 16 April 2013 the Appellant apparently sent an e-mail to Q-COMP which was responded to by Ms Fergusson on 17 April 2013 as follows: "I acknowledge your email to Q-COMP yesterday in relation to your appeal and note that you will be unable to attend the Callover set down by the Vice President of the QIRC for 23 April 2013. I wish to advise that there will be 15 matters heard by the Vice President at this Callover (of which one is yours). The purpose of the callover is for the Vice President to set hearing dates and determine the number of witnesses each party is calling. We have no control over the setting of these dates. I suggest that you contact the QIRC Registry to advise of your position ...". [5] That e-mail went on to advise the Appellant of the QIRC Registry's telephone number and e-mail address. [6] At the Callover on 23 April 2013, WC/2013/86 was set down for hearing on 25 July 2013 in the absence of any information provided by the Appellant. A Further Directions Order was issued on 23 April 2013 and forwarded to the Appellant. As a result of those directions the Appellant was required to file, by 31 May 2013, a list of the names of all witnesses to be called at the hearing on 25 July 2013. -- 1 of 3 -- 2 [7] In correspondence dated 27 June 2013, Q-COMP wrote to the Industrial Registrar advising that it had not received the Appellant's list of witnesses and advising that it did not intend to call any witnesses in this matter. Myself and my Associate were on leave at the time this correspondence arrived in the Industrial Registry. On 2 July 2013 my Associate attempted to contact the Appellant on the mobile telephone number that he had provided to the Industrial Registry. The telephone had been disconnected. She then sent an email to the Appellant advising him that she had attempted to telephone him but that his number had been disconnected and asked that he urgently telephone her. That email was successfully delivered to the Appellant's email address at 11.40 am on 2 July 2013. [8] In the Further Directions Order dated 23 April 2013, a Mention of the matter was scheduled for 4.00 pm on 8 July 2013. The Appellant did not appear at this Mention. [9] The next thing that was heard from the Appellant was an e-mail sent on 13 July 2013 to the Industrial Registry as follows: "I am quite, sick at presentt, there is no way I can make 25th of July date. I also had all my stuff stolen - computer and phone - hence, not being able to contact anyone and/or access all the information in regard this silly issue of which harebrains at Q-COMP admitted to me six months they had made - they made mistake rejecting my claim against the ruling of a Federal Magistrate, which once again displays these brain-dead scum from Q-COMP are a waste of space as a Federal Magistrate Jarrett's decision because they are halfwits accountable to no-one." [10] On 16 July 2013 the Industrial Registry sent the Appellant an email in the following terms: "I refer to your email of the 13 July wherein you state that 'there is no way I can make the 25 July date' as you are 'quite, sick at present'. There was a mention of this matter at 4.00 pm on 8 July 2013. The matter is listed for hearing on 25 July 2013 and is an application by you to extend the time for you making an application to Q-COMP for a review of a WorkCover decision. You will need to liaise with Q-COMP about your application to vacate the hearing date of 25 July 2013 as Q-COMP would have already incurred certain costs of the hearing e.g. the costs of their barrister for the date of 25 July 2013. Thus they may only agree to the vacating of the hearing date provided that you meet costs thrown away. Prior to the Vice President's consideration of your application to vacate the hearing date of 25 July 2013, she will need to know of Q-COMP's position as to your application. In addition, the Vice President will require a medical report from your treating medical practitioner as to the following: ƒ that the treating medical practitioner certifies that you are medically unfit to attend the hearing on 25 July 2013; ƒ the details of the medical conditions that you currently suffer and which your medical practitioner is of the opinion that they prevent you from attending the hearing of your application on 25 July 2013; ƒ an indication from your treating medical practitioner as to when you will be able to attend the hearing of your application to extend time; and ƒ the length of time that you have been a patient of that treating medical practitioner. The quicker you supply that medical report the better as Q-COMP may need to have that prior to determining their position on your application to vacate the hearing date of 25 July 2013.". [11] The e-mail response from the Appellant on 22 July 2013 was as follows: "Hi, I will provide certificate/s no problem at all, its [sic] just I have also broken an ankle and lost all paperwork/phone and my healt [sic] is priority at present, if you could let othrr [sic] side know July 25 is impossible." [12] Following receipt of this e-mail a further e-mail was forwarded to the Appellant on 23 July 2013 in the following terms: "I refer to your email of 22 July 2013. Please note that the Commission has received no correspondence from Q-COMP regarding their agreement to vacate the hearing dates … -- 2 of 3 -- 3 The hearing commencing 25 July 2013 will still commence at 10:00 am.". [13] The Appellant did not provide the Commission with any medical report/certificate. Further, he did not make contact with Q-COMP in an attempt to ascertain their position in respect of the vacation of the hearing date of 25 July 2013. Thus the hearing remained scheduled for 25 July 2013. The Appellant failed to attend the hearing of his appeal which was scheduled for 25 July 2013. [14] The Appellant has shown little, or no, interest in pressing his appeal. The actual matter the subject of the appeal is an application to extend time within which to lodge an application for review against a decision of WorkCover. That application for review was lodged two years and three months after the decision of WorkCover. The Appellant has failed to comply with directions issued in the appeal and has failed to attend mentions of the matter when clearly he has been aware of the dates when mentions have been scheduled. [15] The Appellant failed to attend the hearing of his appeal on 25 July 2013 and has failed to provide any evidence to the Commission and/or Q-COMP that his failure to attend was because of an incapacity, illness or injury. [16] In the circumstances I dismiss the appeal in WC/2013/86 and confirm the decision of Q-COMP dated 6 March 2013. I reserve the question of costs. [17] Order accordingly. D.M. LINNANE, Vice President Hearing Details: 8 and 25 July 2013 Released: 28 August 2013 Appearances: Mr S. Gray of Counsel, directly instructed by Q-COMP. No appearance for the Appellant. -- 3 of 3 --