Aleksic v Q-COMP [2013] QIRC 56

CITATION: Dusanka Aleksic AND Q-COMP (WC/2013/4) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Dusanka Aleksic AND Q-COMP (WC/2013/4) DEPUTY PRESIDENT BLOOMFIELD 10 April 2013 DECISION Background [1] On 29 December 2011, WorkCover Queensland (WorkCover) received an Application for Workers' Compensation for Mrs Dusanka Aleksic in relation to a psychological injury said to have been sustained on 17 August 2006 at 12.00 a.m. [2] The Application for Compensation had been on-forwarded to WorkCover by Mrs Aleksic's previous employer, the Commonwealth Bank of Australia (CBA), on the basis that CBA was covered by the Workers' Compensation and Rehabilitation Act 2003 (the Act) in 2006, but had later moved its self-insurance workers' compensation coverage to Comcare, in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Commonwealth Act). Two other claims, in relation to psychological injuries (aggravations) said to have been sustained on 11 March 2009 and 13 May 2010, respectively, were retained for consideration by CBA. [3] By its decision dated 5 January 2012, WorkCover rejected the Application for Workers' Compensation in relation to the injury sustained on 17 August 2006 on the basis it was lodged outside the six month period specified at s. 131 of the Act. [4] Subsequently, on 20 November 2012, Mrs Aleksic lodged an Application for Review of WorkCover's decision with the Review Unit, Q-COMP (Q-COMP). In its decision dated 6 December 2012 Q-COMP declined to accept Mrs Aleksic's Application for Review on the basis it was lodged outside of the three month time frame provided in s. 542(1) of the Act. [5] Pursuant to a Notice of Appeal lodged on 4 January 2013, and signed by Mr Branislav Aleksic as her appointed representative, Mrs Aleksic now appeals Q-COMP's decision pursuant to s. 550 of the Act. Grounds of appeal [6] The grounds of appeal attached to the Notice of Appeal record the following points: • A barrister whom Mrs Aleksic had retained to lodge her applications for workers' compensation failed to do so. It was only when Mrs Aleksic requested the return of her file that it came to her attention that the barrister had "deliberately sabotaged" her case; • A solicitor whom Mrs Aleksic engaged to lodge her workers' compensation applications claimed a further $7,000 to take her matters further, which she could not afford, after she initially paid him the sum of $20,000; and • Mrs Aleksic's psychiatrist, who had been treating her for over five years at a cost of in excess of $7,000, "deliberately did not fill (in) the forms for WorkCover and he was in alliance with the CBA when he advised me of this. I told him that I could not trust him and sought treatment from another doctor. At this point, I then found out that (the Psychiatrist) had deliberately changed my diagnosis without my knowledge so that I would in turn lose my Work Cover case. He further persisted with treating me for that diagnosis with medication detrimental to my health.". [7] The grounds of appeal also recorded that Mrs Aleksic was seeking compensation from her barrister, solicitor and psychiatrist for the following: 1. Reimbursement for legal fees given no action was taken; 2. Impairment; 3. Pain and suffering; 4. Medical expenses; and -- 1 of 5 -- 2 5. Loss of wages. [8] In light of the above material, I clarified with Mr Aleksic, who appeared as Mrs Aleksic's appointed representative, that the Queensland Industrial Relations Commission (the Commission) had no jurisdiction in relation to any claims that he might have against his wife's former barrister, former solicitor and former psychiatrist. The sole matter for determination in the present proceedings was his wife's appeal against the decision of Q-COMP not to consider Mrs Aleksic's Application for Review of WorkCover's decision of 5 January 2012 because the Application for Review was lodged outside of the three month timeframe set out in s. 542(1) of the Act. [9] In this respect, Mr Aleksic was informed that it would be necessary for him to provide some good and cogent reasons why it took from 6 March 2012 (three months after the date of WorkCover's decision) until 20 November 2012 to lodge the Application for Review. [10] After clarifying certain matters through a Serbian interpreter, who had been engaged to facilitate the conduct of the trial and to assist Mr and Mrs Aleksic and the Commission as might be necessary, Mr Aleksic confirmed that he understood the limitations on the Commission's jurisdiction and the nature of the present proceedings. [11] Notwithstanding this latter comment, both Mr and Mrs Aleksic continued to voice their concerns about the previous actions of Mrs Aleksic's barrister, solicitor and psychiatrist. On each occasion, after allowing them some latitude, it was necessary for me to bring them back to the purpose of the present proceedings and the types of matters they would need to address to successfully prosecute their appeal. Nature of the appeal [12] An appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant. The standard of proof upon which an appeal of this type is to be determined is "on the balance of probabilities". Evidence [13] Evidence in support of the appeal was given by Mr Aleksic, Mrs Aleksic and Mrs M. Ahmetaj - a friend of Mrs Aleksic. [14] A significant amount of Mr Aleksic's evidence was not relevant to the present appeal proceedings. As such, it is unnecessary to record it. However, doing the best I can to distinguish between relevant and irrelevant material, Mr Aleksic's evidence went to the following issues: • he and his wife paid good money to a solicitor to handle their case. They trusted him and gave him everything they had; • his wife was on medication and was also very sick. She couldn't go and lodge documents by herself; • his wife had been subjected to discrimination for nine years; • when he found out he couldn't trust the solicitor, he went to see other solicitors but none of them wanted to take "my case" because he had no money; • he went to Legal Aid and they told him they did not have anyone who could represent him for a WorkCover matter or give him advice in relation to a WorkCover matter; • he then sent all of the documents he had to Fair Work Australia (sic, see below), who sent them back and gave him the telephone number and address for Q-COMP; • his wife was on a total disability pension and he was her carer. They had no family and no relatives in Australia. He did not know what he could do or where he could go to help his wife; and • his wife's psychiatrist did not advise them what they could do, he just talked to the Bank (CBA). [15] Under cross-examination by Mr F. Lippett, Counsel for Q-COMP, Mr Aleksic said: • his wife started having problems with depression in 2001. Her condition gradually worsened over the years and she stopped working for CBA for a period of time in 2009 (eventually ceasing work in 2010); • he had been with his wife when she signed an application for workcover, addressed to Comcare, on 16 November 2011; • his wife had received a letter from WorkCover, dated 5 January 2012, at her home address. This letter, which he read at the time, informed her that WorkCover had decided not to accept her Application for Workers' Compensation for her injury allegedly sustained on 17 August 2006 because it was outside of the six month timeframe stated at s. 131 of the Act; • page 2 of this letter stated that any application for review of WorkCover's decision must be made within three months of receiving the letter; -- 2 of 5 -- 3 • the letter also stated that more information about the review process could be obtained by phoning Q-COMP on 1300 739 021; • after receiving the letter he gave it to his wife's solicitor; • he collected his wife's file from the solicitor on 3 May 2012. The file included a copy of WorkCover's letter of 5 January 2012; • he did not do anything to contact Q-COMP or to seek a review of WorkCover's decision. This was because his wife became distressed when she saw all of the documents, so he put them away; • about a month after he retrieved the files from his wife's solicitor he went to Legal Aid and another firm of solicitors to seek some advice. Legal Aid told him they did not have anyone who could represent him, support him or give him advice in relation to making a claim for workcover. The solicitor told him they could take his case but it would cost between $5,000-10,000; • on 27 August 2012 he made a complaint, which his wife signed, to the Fair Work Ombudsman (the Ombudsman) about an alleged agreement between his wife's solicitor and doctor and CBA to sabotage his wife's case. The complaint requested the Ombudsman to investigate "what the CBA did with WorkCower (sic) till 2008 and Commcare (sic) from 2008"; • approximately one month later the Ombudsman returned the complaint, and accompanying material, with Q-COMP's telephone number and address; • he had previously initiated a complaint in June 2009 with the Financial Ombudsman Service concerning the freezing of an account he and his wife held with the CBA; • during her employment with the CBA his wife had experienced "problems" with 10-15 staff members; • he knew nothing about any Applications for Reviews of CBA's decisions to reject his wife's applications for workers' compensation, lodged with Comcare, in relation to her other injuries allegedly sustained on 11 March 2009 and 13 May 2010, respectively; and • his wife's solicitor had not informed them about correspondence he was receiving in relation to matters he was pursuing on behalf of Mrs Aleksic (being three applications for workers' compensation lodged with the CBA - one of which was on-forwarded to WorkCover - and an anti-discrimination complaint, lodged with the Queensland Civil and Administrative Tribunal (QCAT)). He only came to see this correspondence after he collected his wife's file from the solicitor on 3 May 2012. [16] In the course of her evidence Mrs Aleksic attributed the reason for the delay in lodging her Application for Review with Q-COMP as being unwell and suicidal. [17] Under cross-examination Mrs Aleksic said: • she never saw any letters from CBA about her workers' compensation applications. She was very unwell and left everything to her husband; • someone at McLaughlin's Lawyers told her husband they were going to apply for workers' compensation with the CBA. They gave her something to sign and she signed it; • because she was unwell she could not remember what she had signed. Whatever they gave her she signed. She left everything to her husband to look after; • her husband told her that the CBA had refused her application for workers' compensation and also told her "we'll go further". She did not know what her husband meant when he said this. She left everything to him and told him to do whatever he thought should be done; and • she was so unwell that she could not make any decisions about things like workers' compensation. She left everything to her husband. "… if he's happy, I am happy… I will sign everything he wants me to sign.". [18] Mrs Ahmetaj said she attended at the solicitors' office with Mr and Mrs Aleksic on a number of occasions. He was working on two matters, which he ceased to deal with when Mr Aleksic did not have another $7,000 to contribute towards the costs involved. [19] She contacted Legal Aid, on behalf of Mr and Mrs Aleksic, and asked if there were any solicitors who could take on cases for people who could not afford to pay a solicitor. They gave her several telephone numbers for solicitors who dealt with cases on a "no win, no fee" basis. [20] Under cross-examination, Mrs Ahmetaj said that during her attendance with Mr and Mrs Aleksic and their solicitor the issue of a discrimination claim was discussed and she understood that an application for workcover "was going to be made". However, she did not have any detailed understanding of the nature of the applications, or who they were to be made to. -- 3 of 5 -- 4 Findings and conclusions [21] In Q-COMP v Aqueen Teng Deng1 President Hall said that non-compliance with the three month time limit at s. 542(1) of the Act may be waived on the grounds of "substantial compliance or other special circumstances"2. He also said "the critical matters will be the circumstances, extent and explanation for the non-compliance"3 . [22] Exhibits 2, 5, 10, 13, 14, and 15 establish that Mrs Aleksic was, in late 2011/early 2012, pursuing four claims/applications as follows: • a claim for workers' compensation for an in jury said to have been sustained on 17 August 2006; • a claim for workers' compensation for an injury said to have been sustained on 11 March 2009; • a claim for workers' compensation for an injury said to have been sustained on 13 May 2010; and • a claim under the Anti-Discrimination Act 1991 against the CBA, alleging discrimination on the basis of race. [23] Information contained in Exhibit 14 reveals that on 11 January 2012 the CBA rejected the applications relating to the injuries allegedly sustained on 11 March 2009 and 13 May 2010, respectively. [24] Subsequently, on 1 March 2012, Mrs Aleksic's solicitor, apparently acting on her instructions, requested a reconsideration of the determination concerning the injury of 13 May 2010 pursuant to s. 62(2) of the Commonwealth Act. On 7 March 2012, Mrs Aleksic's solicitor, apparently still acting on her instructions, also requested a reconsideration of CBA's determination in relation to the alleged injury on 11 March 2009. [25] By way of letters dated 4 April 2012 (see Exhibit 15) the CBA informed Mrs Aleksic, care of her solicitor, that it had decided to affirm the original determinations. In each instance Mrs Aleksic was informed that she could pursue an appeal with the Administrative Appeals Tribunal within 60 days. The letters from the CBA were forwarded to Mrs Aleksic by her solicitor on 16 April 2012. Her solicitor informed her that if she wished to appeal CBA's decisions she would need to do so by 12 June 2012. He also requested her to consider the contents of CBA's decisions and to inform him if she wished to appeal either decision. [26] Exhibit 5, which is a letter to Mrs Aleksic from her solicitor dated 2 March 2012, informs her of an offer of settlement by the CBA in relation to her anti-discrimination proceedings with QCAT. The letter advocates acceptance of CBA's offer for reasons set out therein. It also refers to "your WorkCover claim" and records that "on the information available to date" she "will have a difficult case proving" that claim. [27] Be that as it may, the Exhibits tend to support a conclusion to the effect that while Mr and Mrs Aleksic instructed their solicitor to seek a review of the initial decisions of the CBA on 11 January 2012 concerning her injuries of 11 March 2009 and 13 May 2010, respectively, no comparable request was made to the solicitor to seek a review of WorkCover's decision of 5 January 2012. Indeed, apart from Mr Aleksic's evidence that he sent a copy of WorkCover's letter to the solicitor, there was no specific suggestion in his evidence, or elsewhere, that any instruction was given to the solicitor to seek a review of WorkCover's decision. Consequently, there can be no suggestion of "solicitor's negligence", as Mr Aleksic seems to allege. [28] Rather, it seems to me to have been a situation where Mr Aleksic was periodically motivated to try to take some action in a tribunal, or other competent body, in the hope that such action might cause for those whom he believed had caused harm to his wife to be brought to account. [29] A case in point is his complaint to the Ombudsman, lodged on 27 August 2012, in the name of his wife. In this complaint, Mr Aleksic alleges that the CBA struck an agreement with his wife's solicitor and doctor to sabotage her case. He requests the Ombudsman to investigate what the CBA "did" with WorkCover until 2008, and Comcare after that date, and alleges that the CBA "covered up some things" to avoid paying compensation to his wife and, based on reports from two doctors, put her onto a permanent disability pension from 27 August 2010. [30] The Grounds of Appeal in the present matter, referred to at paragraphs [6] and [7] above, further emphasise that this appeal is not so much about being able to prosecute his wife's claim for workers' compensation in respect of her alleged injury of 17 August 2006 but, instead, an attempt to obtain some restitution for the perceived damage to his wife's health allegedly caused by the failures of her barrister, solicitor and psychiatrist, as well as recovery of payments made to those persons. 1 Q-COMP v Aqueen Teng Deng (C/2010/56) - Decision <http://www.qirc.qld.gov.au> 2 Cloncurry Shire Council v Workers' Compensation Regulatory Authority [2007] 2 Qd R 434; Australian Meat Holdings Pty Ltd v Q-COMP (2007) 185 QGIG 231; and Hansen v Q-COMP and Swift Australia Pty Limited (C/2010/16) - Decision No 2 <http://www.qirc.qld.gov.au> 3 Q-COMP v Aqueen Teng Deng (C/2010/56) - Decision <http://www.qirc.qld.gov.au> -- 4 of 5 -- 5 [31] In this respect, Mrs Aleksic's evidence confirms she did not initiate the Application for Review, but left any decision about any matter like that to her husband to take on the basis "if he's happy, I am happy.". [32] For his part, Mr Aleksic acknowledged he had received and read WorkCover's decision dated 5 January 2012 in which it rejected his wife's Application for Workers' Compensation. He also acknowledged he read those parts of the letter which recorded that any application for review must be made within three months of receiving the letter and that if more information about the review process was required that could be obtained by contacting a 1300 number. In addition, Mr Aleksic acknowledged that WorkCover's letter was included in the file which he recovered from his wife's solicitor on 3 May 2012. [33] Importantly, in my view, Mr Aleksic's complaint to the Ombudsman, dated 27 August 2012, clearly records his understanding that WorkCover was a different institution to Comcare and that the CBA operated under WorkCover's "jurisdiction" until 2008, moving to Comcare's "jurisdiction" after that time (although the dates might be incorrect that fact is immaterial to the point I make). [34] Given his demonstrated awareness of the difference between WorkCover and Comcare in late August 2012, as well as receipt of information from the Ombudsman about a month later in which he was provided with Q-COMP's contact details, it would not have taken much effort on Mr Aleksic's part - if he had been sufficiently motivated - to lodge an Application for Review of WorkCover's decision of 5 January 2012. However, for some unexplained reason, he did not take that step until 20 November 2012. [35] In this respect, I do not accept Mr Aleksic's evidence that he did not take action until November 2012 to lodge the Application for Review because he did not know what to do or who to turn to to seek advice. His responses to Mr Lippett's questioning in relation to his role as a security officer lead me to conclude that he was not a reliable witness. Mr Aleksic had previously demonstrated a capacity to pursue a complaint through the Financial Ombudsman Service (see Exhibit 12) and to make a complaint to the Ombudsman (see Exhibit 11). The Ombudsman had also directed him to Q-COMP. [36] All things considered, I have come to the conclusion that there has not been substantial compliance in relation to the three month time limit set out at s. 542(1) of the Act and that no special circumstances have been demonstrated which would justify waiving that time limit in this case. [37] Relevant to that determination is the fact that Mrs Aleksic has not been the motivating force behind the (late) lodgement of the Application for Review with WorkCover. The decision to lodge the Application was made by Mr Aleksic, albeit with the consent of his wife. Further, as noted above, the Application for Review appears to have been lodged by Mr Aleksic with the intention of trying to obtain some restitution in relation to the perceived "wrongs" of his wife's former barrister, solicitor and psychiatrist, respectively, and for no other purpose. Indeed, at no time during these proceedings did Mr Aleksic mention the alleged injury to his wife on 17 August 2006 and his (or her) desire to be able to pursue that application for workers' compensation. [38] In any event, even if being able to pursue his wife's application in relation to her injury of 17 August 2006 was the primary motivation in lodging the Application for Review (which I doubt), that does not explain why it took Mr Aleksic eight months and 14 days beyond the three month time limit to lodge the application, or several months after he was directed to Q-COMP by the Ombudsman. [39] For the foregoing reasons I refuse the Appeal. I confirm the decision of Q-COMP, dated 6 December 2012, in which Q-COMP declined to accept Mrs Aleksic's Application for Review, dated 20 November 2012, on the basis that the Application was lodged outside the three month time frame provided in s. 542(1) of the Act. [40] While costs would normally follow the event in a matter such as this I have come to the conclusion, given Mr and Mrs Aleksic's present circumstances as well as the fact the Appeal was commenced on altruistic grounds, that this is a case where I should make no order as to costs. [41] I determine and order accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2013 28 March (Hearing) 4 April (Transcript) Released: 10 April 2013 Appearances: Mr B. Aleksic on behalf of the Appellant. Mr F. Lippett of Counsel directly instructed by the Respondent. -- 5 of 5 --