Chapple v Q-COMP [2012] QIRC 453

CITATION: Graham Chapple AND Q-COMP (WC/2012/281) - Report on Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 appeal to commission Graham Chapple AND Q-COMP (WC/2012/281) VICE PRESIDENT LINNANE 5 November 2012 REPORT ON DECISION (as edited) In giving her Decision from the Bench on 8 October 2012, Vice President Linnane stated: "This is an application by the Review Unit of Q-COMP (Q-COMP) to have an appeal against a decision of Q- COMP by Graham Chapple (Appellant) struck out or dismissed contending that the Appellant has no right to appeal the Q-COMP decision. The Appellant lodged an Application for Compensation with WorkCover Queensland (WorkCover) on 16 November 2011. By letter dated 7 February 2012 WorkCover rejected that Application. In his Application, received by Q-COMP on 8 May 2012, the Appellant sought a Review of that decision. On 18 June 2012, Q- COMP, in its Reasons for Decision which are the subject of this Appeal, decided that the Application for Compensation should be returned to WorkCover with directions. This Q-COMP action was taken pursuant to s. 545(1)(d) of the Workers' C ompensation and Reha bilitation Act 2003 (Act). It is thus against this Q-COMP decision that the Appellant appeals. In determining this application I have had the benefit of the following documents:  Affidavit of Lorraine Jean Fraser filed 4 October 2012 (Exhibit 1);  Written Submission of Q-COMP filed 20 September 2012;  Further Written Submission of Q-COMP filed 4 October 2012; and  an e-mail from the Appellant received 1 October 2012 referring to additional submissions, The jurisdiction for the Queensland Industrial Relations Commission (Commission) to hear appeals from decisions of Q-COMP is found in Part 3 of the Act. Section 548(a) of the Act relevantly provides as follows: 'This division applies to the following decisions - (a) a review decision, other than a decision to return a matter to a decision-maker under section 545; …'. Section 545 of the Act relevantly provides as follows: '545 Review of decision or failure to make a decision (1) The Authority 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 Authority consider appropriate. (1A) The Authority may act under subsection (1)(d) only if the Authority - (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 -- 1 of 3 -- 2 (c) believes on reasonable grounds that the decision-maker has not observed natural justice in making its decision. … (4) The Authority 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 Authority in writing for time to give the Authority further information. …'. The Appellant's primary submission is that there is a right to appeal against the Q-COMP decision because (i) Q- COMP did not comply with the legislative time limit imposed for making a decision (i.e. the 25 business days) and (ii) because Q-COMP breached a rule of natural justice by not permitting him a right of appearance. Time Limit: Section 545(1) of the Act provides that Q-COMP must make a decision within 25 business days after receiving the application for review. Given that the Applicant filed his Application for Review on 8 May 2012, the 25 business day time limit would have expired at midnight on 12 June 2012. The Q-COMP decision was made on Monday 18 June 2012 i.e. four business days out of time. This delay however does not make the decision of Q-COMP a nullity: see WorkCover Queensland v Queensland Health (Fraser Coast District Health Service)(2003) QGIG 172 and Australia Mea t Holdings Pt y Ltd v W orkCover Quee nsland (2002) 171 QGIG 394. In this instance Lorraine Fraser, the Q-COMP Review Officer, wrote to the Appellant on 7 June 2012, via registered post, and advised him that, in accordance with the obligation of disclosure, she had attached a copy of the Appellant's employer's submission which was apparently adverse to the Appellant's interests. In that correspondence Ms Fraser advised the Appellant that if he wished to respond to that submission then he had until 18 June 2012 to do so. In addition Ms Fraser advised the Appellant that, due to the process of procedural fairness, the due date for the review decision would not be observed. Ms Fraser further advised the Appellant of his right under s. 546(4) of the Act to appeal to an Industrial Magistrate against Q-COMP's failure to make a decision within the time allowed under s. 545(1) of the Act. This correspondence was not received by the Appellant until 11.13 am on 13 June 2012 given the Australia Post Proof of Delivery Report. Ms Fraser also had a telephone conversation with the Appellant on 12 June 2012 wherein the Appellant stated that he would like to respond to the employer's submission however he still wanted the review decision completed by 13 June 2012. Also on 12 June 2012 and following that conversation, Ms Fraser sent the Appellant an e-mail again attaching the employer's submission – a submission which apparently contained matters adverse to the Appellant's interests. Ms Fraser further advised the Appellant that if she did not receive a response by 15 June 2012 she would proceed with the review decision. Ms Fraser again advised the Appellant that due to the natural justice process she would not be observing the 25 business day timeframe for the review decision. Ms Fraser again reminded the Appellant of his right under s. 546(4) of the Act to appeal to an Industrial Magistrate, Q-COMP's failure to complete the review within the 25 business day timeframe. The circumstances surrounding the four (4) working days delay in making the review decision included:  the Appellant had been forwarded a copy of the employer's submission on 7 June 2012 although it had been posted via registered post;  on 12 June 2012 the Appellant informed the Ms Fraser that he had not received the employer's submission;  following that telephone conversation on 12 June 2012, Ms Fraser forwarded a further copy of the employer's submission to the Appellant via e-mail and advised the Appellant that he had until 15 June 2012 to provide a response;  the registered post item was only collected from Australia Post by the Appellant on 13 June 2012; and  the employer's submission was apparently adverse to the Appellant's interests. -- 2 of 3 -- 3 In my view there was substantial compliance with the provisions of the legislation in that the delay was only four (4) business days. Further, it was appropriate to allow the Appellant an opportunity to respond to the employer's submission which was adverse to his interests. In all of the circumstances, I find that the need to give the Appellant an opportunity to respond to the employer's submission and thus provide him with natural justice overrode the legislative requirement for Q-COMP to comply with the provisions of s. 545(1) insofar as the 25 business days were concerned. The Appellant acknowledged that he did not appeal (to an Industrial Magistrate), Q-COMP's failure to make a decision within the 25 business day time frame. Right of Appearance: The Appellant has asserted that he had no opportunity to exercise his right of appearance. However, the Appellant was aware of his entitlement to meet with the Review Officer as on 8 June 2012. He advised Ms Fraser that he wished to exercise that right on 8 June 2012: see paragraph 6 of the Affidavit of Ms Fraser. He also told Ms Fraser on 12 June 2012 that he wished to exercise his right to appear: see paragraph 7 of Ms Fraser's Affidavit. There is however no evidence of any attempt by the Appellant to exercise that right of appearance. It is clear from Ms Fraser's Affidavit that the Appellant took and made telephone calls to Ms Fraser. At no time did he advise Ms Fraser of any arrangement made by him to exercise a right of appearance. Conclusion: The evidence before me does not reveal any breach of natural justice on the part of Q-COMP. I have already found that the need to give the Appellant an opportunity to respond to the employer's submission overrode the need for strict compliance with the provisions of s. 545(1) of the Act. There thus appears no basis for me overriding the clear provisions s. 548(a) of the Act. Q-COMP has made a decision to return the Appellant's matter to WorkCover with appropriate directions. The Appellant was informed at the hearing of this matter on 2 October 2012 that WorkCover had made a further decision on his Application for Compensation. Yet the Appellant claimed, at the hearing today, not to have received that decision or made contact with WorkCover in an effort to receive a copy of that decision. At the conclusion of the Q-COMP Reasons for Decision there is a heading entitled "Appeal rights" and under that heading the following in stated: 'Section 546(3A) of the Act states that there is no right of appeal to a decision by Q-COMP to return this matter to WorkCover.'. The Appellant was on notice at all times that the Q-COMP decision was not a decision which could be appealed to this Commission. I thus dismiss matter WC/2012/281.". Order accordingly. Dated 5 November 2012 By the Court, [L.S.] C.R. CHADWICK, Acting Industrial Registrar. Released: 5 November 2012 Appearances: Mr G. Chapple on his own behalf. Mr F. Lippett of Counsel directly instructed by Q-COMP. -- 3 of 3 --