Deng v Q-COMP [2012] QIRC 7

CITATION: Aqueen Teng Deng AND Q-COMP (WC/2011/173) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Aqueen Teng Deng AND Q-COMP (WC/2011/173) COMMISSIONER BROWN 3 February 2012 DECISION [1] This matter has a lengthy history.  On 31 January 2007 Mr Deng, the Appellant, lodged a claim for compensation with Australian Meat Holdings Pty Ltd (AMH), (now Swift Australia Pty Ltd), the Employer and self-insurer, claiming to have suffered a back injury at work on 18 December 2006.  On 15 March 2007 the Appellant was advised by letter that his claim had been refused.  On 8 November 2009 the Appellant made an application to Q-COMP requesting the insurer's decision be reviewed.  On 18 November 2009 Q-COMP advised the Appellant of their decision to refuse his application for review for reasons related to the delay in filing.  On 24 November 2009 the Appellant appealed this decision to the Industrial Magistrates Court.  On 19 September 2010 the decision of the Industrial Magistrate was to allow the Appeal.  Later in September 2010 Q-COMP appealed this decision in the Industrial Court.  On 8 February 2011 the Industrial Court decision was to return the matter to Q-COMP for further consideration of matters touching on the reasons for the delay in lodging the original application for review.  On 28 April 2011 Q-COMP released its decision again refusing to review the original decision of the self- insurer.  On 19 May 2011 the Appellant lodged an appeal against that decision in the Queensland Industrial Relations Commission (the Commission) and it is that Appeal which is dealt with by this decision. Legislation: [2] The Workers Compensation and Rehabilitation Act 2003 (the Act) at s. 542 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. (4) If the notice did not state the reasons for the decision or the failure to make a decision - (a) The applicant must ask the decision-maker for the reasons within 20 business days after receiving the notice; and (b) The decision-maker must give written reasons within 5 business days after the appellant asks for the reasons; and (c) The application for review must be made within 3 months after the applicant receives reasons, regardless of whether the reasons addressed the matters prescribed under a regulation. (5) The application for review - (a) Must be made in the approved form and given to the Authority; and (b) Must state the grounds on which the Appellant seeks review; and (c) May be accompanied by any relevant document the applicant wants considered in the review. (6) The Authority must, within 10 business days after receiving the application, give the applicant and the decision-maker written notice that the application has been received. [3] Despite the apparently rigid use of the term "must" in s. 542(1) and further the opportunity to apply to extend the time frame within which to request a review (s. 542(2)), it has been held in previous relevant judgments that the time frame can be less than rigid in certain circumstances. Namely in circumstances where there has been "substantial compliance or other special circumstances". [4] The Appellant made no claim to have substantially complied with the requirements of the Act. -- 1 of 6 -- 2 [5] In determining this appeal, I adopt the position taken by President Hall in his Decision in the matter Q-COMP AND Aqueen Teng Deng1 He stated: "The Law has developed since the decision of this Court in Q-COMP v Baulch. 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 Authority and the subsequent decisions of this Court in Australian Meat Holdings Pty Ltd v Q-COMP and Hansen v Q-COMP, that non-compliance with the time limit may be waived on the grounds of 'substantial compliance or other special circumstances'.". [6] I also acknowledge the relevance of the President's comments in that matter where he said: "It must be conceded that 'special circumstance' has not formed an element of the ratio decidendi of a decided case, and that the content of 'special circumstances' is yet to be settled …". [7] The matter was heard de novo. [8] Without commenting on the prospects of success of the Appellant's Workcover claim, on the information before me, I do not regard the Appellant's claim for compensation as one identifiable as void of prospects of success. [9] The Appellant relied on oral and written submissions. No witness evidence was called, however a series of documents were presented for consideration. [10] The Respondent provided evidence in the form of a witness statement from Ms Ruth Jamieson, the relevant Q- COMP Appeals officer and made written and oral submissions. [11] Ms Jamieson was not required for cross-examination however the Appellant expressed objection to that part of her statement which dealt with locally available community-based assistance which Ms Jamieson believed could have been accessed in a timely fashion by the Appellant in connection with this matter. [12] The information in the challenged paragraphs (EX 1 Paras 16, 17, 18, 19 and 20), whilst noted, has not influenced this decision. [13] The Appellant is a Sudanese-born male aged in his early 30's whose first language is Dinka. According to unchallenged submissions, the Appellant's oral English skills were moderate and his ability to read and write in English was poor. [14] The length of time which elapsed from the date upon which the application for review should have been made and the date it was made was 2 years and 139 days. [15] I accept that "special circumstances" as submitted by Counsel for the Appellant, don’t need to be extraordinary. But they do need to be special and in this respect I am satisfied with the definition of "special" as appears in the Concise Oxford Dictionary: "Special: of a particular kind, peculiar, not general.". [16] At the Hearing, Counsel for the Appellant submitted that there were two sets of relevant circumstances which qualified as special. One being the personal circumstances and characteristics of the Appellant and the effect this had on the Appellant's actions and the other, the process followed by the Employer in handling the Appellant's claim. [17] As to the Employer's systems in the handling of the claim, Counsel for the Appellant contended that special circumstances could be found in the insurer's notice of refusal which was said to lack appropriate clarity and information. This is dealt with later in this decision. [18] According to the Appellant the special circumstances also arose from the absence of procedural fairness in the investigative process followed by the insurer in the lead up to the rejection of the claim. [19] The notice of refusal stated that it was "based on the factual evidence", a position which Counsel for the Appellant stated was arrived at without affording the Appellant natural justice. To wit, the insurer's failure to give the Appellant the opportunity for further explanation when two apparently key employees refuted the Appellant's claim to have reported his injury to them on the alleged day of its occurrence. 1 Q-COMP AND Aqueen Teng Deng (C/2010/56) - Decision <http://www.qirc.qld.gov.au> -- 2 of 6 -- 3 [20] An additional natural justice deficiency was said by Counsel for the Appellant to be found in the insurer's failure to give the Appellant an opportunity to explain the difference between his estimate of the weight of the product upon which he was working at the time of the alleged injury and the weight of the product as advised to the investigator by Mr Paul Klien, the Workplace Health and Safety and Rehabilitation Officer employed by Australian Meat Holdings Pty Ltd. [21] The effect, according to Counsel for the Appellant was, that this natural justice failure "added to the surprise of the refusal and MAY (my emphasis) have contributed to the failure on the part of Mr Deng to pursue advice and assistance from legal sources". [22] Surprise at the rejection of a Workcover claim does not, in my view, constitute a special circumstance. In fact, surprise is probably one of a number of emotions normally or usually felt by Workcover claimants upon learning of their rejection. [23] I am unsure as to what might have been added to the Appellant's surprise by the alleged failure to provide natural justice and, from the written submissions, so was the Appellant. [24] The highest Counsel for the Appellant put this issue is that it "may" have contributed to his circumstance. I don’t regard the surprise aspect of the matter as a special circumstance. [25] The Appellant also argued that the denial of natural justice was itself a special circumstance and claimed that the out of time application, if accepted, would give Q-COMP the opportunity to review the flawed investigation methods of the self-insurer. [26] The task for this Commission is to determine what, if any, contribution this matter made toward establishing special circumstances sufficient to warrant the intervention sought. [27] In my view, the special circumstances for consideration in these proceedings are not confined to the special circumstances relating to the reasons for the delay, but may include an examination of broader issues. [28] President Hall in his decision Australian Meat Holdings and Q-COMP2 stated: "The Authority has the function of undertaking reviews under Chapter 13, Part 2 (s. 330(2)(e)). The Authority also has the function of monitoring the compliance of insurers with the Act (s. 330(2)(a)) and the function of monitoring the performance of insurers under the Act including the consistent application of the Act (s. 330(2)(b)). The conduct of an out of time review may well be an appropriate way of discharging those functions.". [29] However, the conduct of an out of time review is not the only way for the authority (Q-COMP) to perform that function. [30] The opportunity for the authority to review the conduct of the insurer might be a consequence of a review and while it is not a reason for the delay it may well be a factor which in this matter constitutes a "special circumstance". [31] Regarding the Appellant's personal circumstances and characteristics, the Counsel for the Appellant submitted: "Mr Deng was placed in a very unfamiliar and unexpected position. He was still new to the country. He was unfamiliar with the way things worked. His English was moderate at best. His access to relevant information was second hand. He was intimidated by the thought that he might need to resort to seeing a solicitor and, thereby, incur (large amounts of) expense. All of these factors operated to cause him to let things slip.". [32] Also in a statement from the Appellant was the comment: "My failure to take earlier steps to have the decision reviewed was due to my lack of familiarity with the legal system and my anxiety about the cost of obtaining legal advice from a solicitor. I was also unsure of the severity of the injury that I had suffered.". (Para 32 of Document 3 of Appellant) [33] It was submitted by Counsel for the Appellant and on the information available, I accept that the letter of refusal dated 15 march 2007 was explained to Mr Deng by his housemate, a Mr Pioth, a distant relative who possessed a reasonable command of English and who at the time was attending university. [34] Mr Pioth has since completed both a degree and a Masters in Biomedical Science. 2 Australian Meat Holdings and Q-COMP (C/2007/15) QGIG 185 at 231-236 -- 3 of 6 -- 4 [35] The letter of refusal noted inter alia: "If you are aggrieved by any part of this decision, you may have the right to have it reviewed by Q-COMP's Review Unit or in some cases, you may be able to appeal to an industrial magistrate. Strict time limits apply to lodging review applications and appeals. For more information about the review and appeals process, you can contact this office or Q-COMP direct on 1300 739 021". [36] According to Counsel for the Appellant, after receiving the explanation from Mr Pioth the Appellant understood: "1) His application had been refused; 2) His supervisor and the nurse had denied his claim to have reported his injury to them; 3) That he could have the decision reviewed; and 4) That in such a review he would require legal assistance which he believed involved costs beyond his financial capacity.". [37] It was submitted for the Appellant that point four together with his inexperience and lack of knowledge of the law caused him to "let things slip". [38] Regarding the Appellant's comprehension of the circumstances, I accept that at the conclusion of his exchange with Mr Pioth his knowledge and comprehension of things was as stated above and this knowledge and comprehension existed within the time allowable to request a review. [39] He knew his claim had been denied and that the denial was based on the acceptance of information contrary to that given by him to his Employer. He knew he could appeal and he believed that the process would likely involve lawyers and it would cost a substantial amount of money. It was with this knowledge that he "let things slip". [40] He didn't contact the Q-COMP number for clarification of information nor did he accept the advice given by his physiotherapist or his Doctor in 2007, which was to see a solicitor. [41] The Appellant claimed that his uncertainty as to the full extent of his injury was also a factor in the special circumstances which contributed to his situation. [42] In my view it is possible that many a claimant is unsure of when an injury might stabilise or whether its full effects might only become known over time. Regardless of whether the full effect of the Appellant's injury was only revealed by the passage of time, it must be accepted that the injury, at least in the Appellant's mind, was severe enough initially to warrant a claim for compensation and severe enough for the Appellant to be disappointed at the rejection of the claim. [43] I don't accept that uncertainty over the stability of an injury is, or contributes to, special circumstances which could justify or contribute to the justification of a delay of this length. [44] Further with respect to the Appellant's knowledge, it would seem that his knowledge of the worker's compensation system was limited. With the assistance of his G.P. he completed and lodged his Workcover claim. At this point he knew that a system of Workcover existed and why. [45] However, Counsel for the Appellant submitted that the Appellant found the information in the refusal letter both surprising in content and confusing in its complexity. He resorted to seeking advice from an acquaintance better equipped than he to explain things and on the submissions and material, I accept that that he wasn't enlightened with respect to specific time frames and was ill informed regarding the possible cost of legal assistance. [46] These problems stemmed from the Appellants oral English difficulties and his more severe difficulties in reading and writing English, and as such, I regard them collectively as constituting special circumstances worthy of consideration in this matter. [47] On the material before the Commission it was the Appellant's concern over the possible cost of proceeding which caused him to let things slip and not some mistaken belief that there was no time limit or a lengthy time limit. [48] Without any relevant tested witness evidence before me, the material suggests that only after acting on Dr Dan's advice and obtaining legal advice did the Appellant become aware that the time for requesting a review had passed. -- 4 of 6 -- 5 [49] The Appellant's lack of knowledge of the Workcover system and misunderstanding of the cost of legal assistance, brought about partly at least by his English language difficulty, is a special circumstance possibly capable of evoking sympathy had the fault for correction been minimal, but it wasn't. The delay was two years and 139 days. [50] The Appellant's personal circumstances are not run of the mill, they are special, but while I have considered individually, all of the personal circumstances said to be special and having some impact on the Appellant's decision to let things slip, on the evidence and material before me they would not alone not warrant an extension of the magnitude sought. [51] It was stated repeatedly in proceedings that the Appellant's belief that for legal assistance he would need to provide, up front, a substantial amount of money and his inability to do so was significant in the Appellant's letting things slip. [52] While the timeframes stipulated in s. 542 of the Act are less than rigid, it would, in my view be inappropriate to dispense with the time requirements of the Act by two odd years where a person, who because of poor advice believed that legal costs were beyond them, subsequently formed the view that they weren't. [53] I do not regard circumstances where a person chooses not to pursue a matter because of anticipated legal costs as special or special enough to justify such a lengthy delay. However, the Appellant's situation is more complex. [54] There is the issue (not contested) that the Appellant was denied natural justice in the initial investigation by the self-insurer. The self-insurer failed on the fundamental question of procedural fairness. Moreover the two areas in which the Appellant was denied natural justice were the very areas which convinced the self-insurer that the Appellant's claim should be rejected. [55] The Appellant was denied natural justice and this together with the special circumstances examined above is, in the view of this Commission, sufficient to exercise the discretion of the Commission to order the Appellant's claim be reviewed by Q-COMP. [56] Submissions for the Respondent included reference to a decision of the President in the matter of Kevin John Hansen and Q-COMP3 (No. 2) (Hansen) and to the similarities with this matter. [57] The similarities with this matter, the Respondent correctly submits, were, a lengthy delay in seeking a review, almost two and a-half years and the Appellant in that matter was a man of limited education with no knowledge of the provisions of the Act or the time limits which applied to a request for review. [58] The Respondent also correctly stated that that the similar circumstances in Hansen included his belief that he could not afford a solicitor to act on his behalf and remained of this view until a consultation with a solicitor regarding family law matters enlightened him. [59] President Hall's decision recorded other similarities in his decision in Hansen. They were: "The self-insurer's decision was read to the Appellant shortly after the date of issue. Amongst the information read to him was advice that he might seek a Statutory Review by Q-COMP. I accept that the telephone number provided might be taken to be the number to ring to obtain an Application form. However, the Appellant neither rang the number nor made any other attempt to enquire what was involved in a Statutory Review.". [60] All of this is quite comparable with the circumstances in this matter. [61] Moreover, the rejection letter to Hansen was in similar terms with respect to the absence of nominated time frames within which the Appellant could request a review. That is, the letter in the Hansen matter also referred to "Strict" time frames. While the President commented on this aspect in Hansen, he ultimately concluded the advice in the letter was "reasonable". [62] Hansen's appeal was dismissed. [63] While there are strong similarities to this matter, there are also significant differences. [64] In Hansen, the President had also to deal with the question of the length of time taken to agitate the claim once his legal representation were seized of the matter. He described that situation as follows: "The fault lay with his solicitors who were his agents. There were no special circumstances, all that has occurred is that the Appellant and his agents have made a conscious decision later regretted.". 3 Kevin John Hansen AND Q-COMP (C/2010/16) - Decision No 2 <http://www.qirc.qld.gov.au> -- 5 of 6 -- 6 [65] In contrast, the Appellant and his representatives in this matter acted with a sense of urgency once the Appellant was aware that legal assistance might be within his financial means. [66] A further distinction is to be found in the personal circumstances of the Appellant when compared to Mr Hansen. The Appellant had limited English, he had been in Australia for approximately two years at the time of his alleged injury and unlike Mr Hansen about whom the President opined was not hindered by timidity, the Appellant was indeed timid and fearful of the consequences of proceeding, and his fear stemmed directly from his being hindered in gaining first hand knowledge because of his timidity and lack of written and oral communication skills. [67] There is also the significant factor present in this Appeal but absent in Hansen and that is the issue of natural justice. [68] The denial of natural justice to the Applicant in the original investigation conducted by the self-insurer was palpable. The circumstances were described as a "gross failure" by Kilmartin (IM) in the initial appeal. [69] The matters over which justice was denied were the very matters upon which the self-insurer relied to reject the claim for compensation. [70] This flaw in the procedure of the self-insurer which resulted in the denial of natural justice to the Appellant constituted, in my view, a special circumstance which contributed to the range of special circumstances present in this matter to the point where I believe that collectively the special circumstances are sufficient to justify the allowance of the Appeal. [71] Counsel for the Respondent referred the Commission to the Act at s. 5(4)(a)(i) and (ii) of Part 2 - Objects as well as s. 95 and submitted that this should be considered in the exercise of the discretion under s. 542. "5 Workers' compensation scheme (4) It is intended that the scheme should - (a) maintain a balance between - (i) providing fair and appropriate benefits for injured workers or dependants and persons other than workers; and (ii) ensuring reasonable cost levels for Employers; and (b) ensure that injured workers or dependants are treated fairly by insurers; and …". [72] I have considered the submissions and do not believe these provisions would be offended by Q-COMP reviewing the insurer's decision, in fact s. 5(4)(b) might be better served by such a review. [73] I set aside the decision of Q-COMP and order Q-COMP to conduct a review of the self insurers' decision in this matter pursuant to s. 558(1)(d). [74] I reserve all questions as to cost. D.K. Brown, Commissioner. Hearing Details: 2011 14 December Released: 3 February 2012 Appearances: Mr S. Keim, Instructed by Hunter Solicitors. Mr P. O'Neil Instructed by R. Jamieson of Q-COMP. -- 6 of 6 --