Campbell v Q-COMP [2012] QIRC 459

CITATION: Jennifer Campbell AND Q-COMP (WC/2011/339) - Decision <http://www.qirc.qld.gov.au> > QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Jennifer Campbell AND Q-COMP (WC/2011/339) COMMISSIONER BROWN 19 November 2012 DECISION [1] In this matter, Ms Jennifer Campbell (the Appellant) seeks a decision reversing Q-COMP's (the Respondent) decision to decline to deal with her review application which was lodged outside of the timeframe set by the Workers' Compensation and Rehabilitation Act 2003 (the Act). Legislation Section 542 of the Act states: "542 Applying for review (1) 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. (2) For subsection (1), the applicant may, within the 3 months mentioned in the subsection, ask the Authority to allow further time to apply for review. (3) The Authority may grant the extension if it is satisfied that special circumstances exist.". [2] Both parties accepted that the issue for determination was whether or not the circumstances relevant to the delay are "special" to the extent the discretion to allow an out of time application to be reviewed should be exercised. [3] President Hall in the matter of Aqueen Teng Deng 1(C/2010/56) 8 February 2011 stated: "The law has developed since the decision of this Court in Q-COMP v Baulch1. Substantial compliance is no longer the sole justification for not insisting upon the three month time limit. It is the effect of the decision of the Supreme Court in Cloncurry Shire Council v Workers' Compensation Regulatory Authority2 and the subsequent decisions of this Court in Australian Meat Holdings Pty Ltd v Q-COMP3 and Hansen v Q- COMP4, that non-compliance with the time limit may be waived on the grounds of "substantial compliance or other special circumstances". [4] The Appellant was involved in matters relating to her alleged workplace injuries, the complexities of which saw her enlist the support of legal representatives, Everingham Lawyers. [5] The following account of events is drawn from the statement of Ms Susan Lewis of Everingham Lawyers. [6] The Appellant applied for Workers' Compensation on 29 May 2010. The application was to self insurer R.S.L Care. R.S.L care are a part of classification group self insurance licence holder Aged Care Employers Self Insurance Group (A.C.E.S). [7] The claim related only to her "right elbow and forearm". [8] On 1 July 2010, self insurers provided the Appellant with their decision rejecting her claim. On 5 August 2010 the Appellant engaged Everingham Lawyers to represent her in the matter. On the same day, Ms Susan Lewis of Everingham Lawyers lodged an application to Q-COMP for review of the 1 July 2010 refusal decision. On 6 August 2010, Ms Susan Lewis faxed a Notice of Claim for damages pursuant to s. 276 of the Act to RSL Care. [9] The notice listed three injuries, two of which had not been the subject of the previous claim. The injury considered and rejected on 1 July 2010 was related to the Appellant's right elbow and forearm. The Notice of Claim for damages listed that injury, plus injuries which to that point had not been mentioned. They were • Right shoulder strain and 1 Q-COMP AND Aqueen Teng Deng (C/2010/56) - Decision <http://www.qirc.qld.gov.au -- 1 of 4 -- 2 • Right arm strain. [10] The self insurer engaged Cooper Grace Ward Lawyers to act on their behalf, and advised Ms Susan Lewis by correspondence received by her on 11 August 2010. On 11 August 2010, Ms Susan Lewis also received correspondence from Cooper Grace Ward Lawyers pointing out, inter alia, the absence of previous claims in relation to the shoulder and arm, the requirements of s. 237 of the Act in that correspondence from Cooper Grace Ward Lawyers, set out a proposal for dealing with the matters. [11] On 12 August 2010, Ms Susan Lewis faxed confirmation of agreement with the terms proposed. The terms dealt with, and the reasons for having to deal with them were complex. Exhibit 8 SL6 records the agreement: "Limitation period We note that, based upon the start date for the OPT period, Ms Campbell's claim is statute barred in respect of any injury arising during the period 11 August 2005 – 6 August 2007 (and continuing). Our client requests that the claimant also submit any evidence of any basis upon which she would be entitled to obtain an extension of the limitation period pursuant to section 31 of the Limitation of Actions Act 1974. Compliance We note Ms Campbell wishes to proceed through the pre-court procedure process. Our client is prepared to consider the request that compliance with section 275 be waived as a procedural issue. This in no way affects our client' rights to rely on the limitation defence. Our client agrees there is an urgent need for Ms Campbell to start a proceeding for damages. Our client is not satisfied that Ms Campbell's Notice of Claim complies with section 275 of the Act. Pursuant to section 278(2)(b) of the Act, our client is willing to waive compliance on the claimant's agreement to satisfy the following conditions imposed under section 276 of the Act ("the agreement"): 1. Our client will consider any reasonable request for an extension of any timeframes imposed by these conditions. 2. The parties agree to proceed in accordance with the usual pre-court procedures set out in chapter five of the Act. 3. The parties agree to not hold the compulsory conference as required in accordance with the usual pre-court procedures set out in chapter five of the Act until at least three months after the last notice of assessment has issued. 4. Within 30 days of the date of this agreement, the claimant will provide a fresh Notice of Claim in the approved form, which satisfies the provisions of section 275 of the Act. 5. If our client considers that the fresh Notice of Claim does not satisfy the provisions of section 275 of the Act, our client will notify the claimant that further information is required, and the claimant will provide this information within 14 days. As our client is still required to provide a response under section 281 of the Act within six months after compliance is waived, our client will require strict adherence to the above timeframe. In order to satisfy section 302(1)(a)(ii) of the Act, our client requires written confirmation that the claimant agrees to comply with the conditions and timeframes of the agreement, before the limitation period expires. Our client reserves its rights to rely on section 295 of the Act. We look forward to your urgent response in relation to the proposed terms and conditions of waiver of compliance Yours Faithfully COOPER GRACE WARD." [12] The issue surrounding the two new alleged injuries were complex and were being dealt with by the legal representatives of both parties. The original claim (elbow) was concurrently the subject of an Appeal to Q- COMP (since settled). There were numerous written exchanges between the representatives of the parties and between representatives of parties and Q-COMP. They were: 5 August 2010 Everingham Lawyers to Q-COMP (Exhibit 8 SL1) -- 2 of 4 -- 3 6 August 2010 Everingham Lawyers to A.C.E.S (Exhibit 8 SL3) 6 August 2010 A.C.E.S to Everingham Lawyers (Exhibit 8 SL4) 6 August 2010 Everingham Lawyers to A.C.E.S (Exhibit 8 SL5) 9 August 2010 Cooper Grace Ward to Everingham Lawyers (Exhibit 8 SL6) 10 August 2010 Cooper Grace Ward to Everingham Lawyers (email) (Exhibit 8 SL7) 12 August 2010 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL8) 16 August 2010 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL9) 12 August 2010 Q-COMP to Everingham Lawyers (Exhibit 8 SL10) 24 August 2010 Cooper Grace Ward to Everingham Lawyers (Exhibit 8 SL11) 16 September 2010 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL12) 25 October 2010 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL13) 25 October 2010 Everingham Lawyers to Q-COMP (Exhibit 8 SL13) 12 November 2010 Everingham Lawyers to Q-COMP (Rejection of review of RT elbow Appeal) (Exhibit 8 SL14) 23 November 2010 Everingham Lawyers to Q-COMP (Appeal) (Exhibit 8 SL15) 23 November 2010 Everingham Lawyers to A.C.E.S (Exhibit 8 SL15) 25 November 2010 Q-COMP to Everingham Lawyers (Exhibit 8 SL16) 26 November 2010 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL17) 13 December 2010 Everingham Lawyers to Q-COMP (amended Notice of Appeal) (Exhibit 8 SL18) 10 January 2011 Cooper Grace Ward to Everingham Lawyers (Exhibit 8 SL19) 13 January 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL20). This correspondence stated: "We Acknowledge recept of your client's Section 281 Notice dated 10 January 2011. Technically, the compulsory conference is due to be held by 10 April 2011. As you are aware, an Appeal is currently on foot in the Queensland Industrial Relations Commission. The Appeal is unlikely to be heard prior to 10 April 2011. In the circumstances please confirm that you are prepared to adjourn the holding of the compulsory conference to a date to be fixed, pending the outcome of the Appeal in the Queensland Industrial Relations Commission.". 17 February 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL21) 2 March 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL22) 21 March 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL22) 21 March 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL23) 25 March 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL24) 16 June 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL25) 24 June 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL26) 21 July 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL27) 9 August 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL28). This correspondence stated: "We enclose the following for your attention: 1. Signed Consent Order. As you can see, Q-COMP have allowed our client's Appeal in relation to her right elbow injury. We refer to your letter dated 9 August 2010. We ask that you now make a determination in relation to our client's right shoulder and arm injuries"." 11 August 2011 Cooper Grace Ward to Everingham Lawyers (email) (Exhibit 8 SL29). This email records: "In relation to your fax 9 August 2011 dated, and the mentioned unassessed injuries, RSL Care rejected these claims last year. The attachment includes the rejection letter, RFD, and the confirmation of receipt by Ms Campbell.". 11 August 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL30) 11 August 2011 Cooper Grace Ward to Everingham Lawyers (email) (Exhibit 8 SL31) 11 August 2011 Everingham Lawyers to Cooper Grace Ward (email) (Exhibit 8 SL31) 11 August 2011 Everingham Lawyers to Q-COMP (Exhibit 8 SL32). This correspondence stated: -- 3 of 4 -- 4 "We enclose the following for your attention: 1. Application for Review dated 11 August 2011; 2. Decision of RSL Care dated 1 December 2010; 3. Email from Tony Park dated 11 August 2011. Despite RSL Care and their solicitors being aware that Everingham Lawyers acted on behalf of Jennifer Campbell, the decision of 1 December 2010 was never provided to Everingham Lawyers. Everingham Lawyers first became aware of this decision on 11 August by way of email from Mr Tony Park of Cooper Grace Ward Lawyers"." 11 August 2011 Everingham Lawyers to Cooper Grace Ward (Exhibit 8 SL33) [13] From 5 August 2010 all correspondence relating to the various aspects of the Appellant's claims for compensation, save for the rejection letter of 1 December 2010 went directly to representatives of the Appellant. The correspondence was not only plentiful but at times confusing and I think it little wonder that the Appellant might have believed her matters were being addressed by her representatives. [14] The rejection of her initial Appeal was indeed sent by Q-COMP directly to Everingham Lawyers, as representatives of the Appellant. Considering the trail of correspondence especially during the period December 2010 to August 2011, it was apparent Everingham Lawyers were of the view that agreement had been reached on the method of dealing with the extra claims, and remained unaware that any formal rejection had occurred and given the nature of things, it was not surprising A.C.E.S and Cooper Grace Ward Lawyers for their part, established a practice from early August 2010 of corresponding with Everingham Lawyers. [15] A.C.E.S then, on 1 December 2010, sent one letter, the rejection of the further matters, directly and only to the Appellant. This action was in no way a breach of any legislation or regulation, but in my view, a departure from the established practice. I am in not doubt, given the level of activity and urgency shown by Everingham Lawyers on the matters in question, had Everingham Lawyers been included (by A.C.E.S) in that correspondence, the review application would have been attended to by Everingham Lawyers within the legislative timeframe. [16] It was also unsurprising the Appellant believed all was in hand and she need not trouble herself with the 1 December 2011 rejection letter as her lawyers, she believed, according to submissions and her evidence, were attending to things. [17] In all, I am satisfied the circumstances were "special" with the meaning of s. 542 of the act and accordingly, I set aside the decision of Q-COMP and order Q-COMP to conduct the review in question. [18] I reserve all questions as to costs. D.K. Brown, Commissioner. Hearing Details: 2012 9 July Released: 19 November 2012 Appearances: Mr J. Morris, Counsel, Instructed by Everingham Lawyers for the Appellant. Mr P. O'Neill, Counsel, Instructed by Q-COMP for the Respondent. -- 4 of 4 --