Bettels v Q-COMP [2011] QIRC 51

CITATION: Marieanne Francis Bettels AND Q-COMP (WC/2011/192) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Marieanne Francis Bettels AND Q-COMP (WC/2011/192) VICE PRESIDENT LINNANE 4 August 2011 Application to extend time within which to appeal decision of the Review Unit of Q-COMP ceasing Applicant's workers' compensation benefits - Special circumstances warrant the granting of the application - Application granted. DECISION [1] This decision relates to an application by Marieanne Francis Bettels (Applicant) for leave for her appeal against a decision of the Review Unit of Q-COMP (Q-COMP) to be heard outside the time limit imposed by s. 550(1) of the Workers' Compensation and Rehabilitation Act 2003 (Act). The Q-COMP decision dated 12 November 2010 terminated the Applicant's entitlement to compensation under s. 545(1)(a) of the Act. [2] In support of her application to extend time, the Applicant relies upon the Affidavit of Wayne Hampton, a Solicitor with Hall Payne Lawyers. Q-COMP does not oppose the application: see Q-COMP correspondence dated 28 July 2011. [3] The Applicant applied for workers' compensation benefits in relation to a psychiatric condition on 26 May 2010. Her condition was described by her treating medical practitioners as Post Traumatic Stress Disorder. Her claim was accepted by WorkCover Queensland (WorkCover) and weekly benefits and relevant medical expenses were paid by WorkCover. [4] The Applicant was referred to Dr Prabal Kar, Consultant Psychiatrist, for psychiatric assessment on 16 June 2010. Dr Kar's medical report is Attachment WLH1 to Mr Hampton's Affidavit. In reliance on that medical report WorkCover ceased the Applicant's entitlement to medical expenses and weekly benefits. The Applicant then sought a review of that decision by Q-COMP. Q-COMP issued its decision on 12 November 2010 and confirmed WorkCover's decision to terminate the Applicant's entitlement to weekly payments and medical treatment. [5] The Applicant then requested a permanent impairment assessment in correspondence from her Solicitors dated 22 March 2011. WorkCover arranged an appointment for the Applicant with Dr Bradley Ng, Psychiatrist, on 4 May 2011. Dr Ng provided a medical report which indicated that the Applicant's condition was not then stable or stationary and that further treatment was required for the work-related injury. Dr Ng's medical report was received by the Applicant's solicitors on 19 May 2011. Dr Ng's report is Attachment WLH6 to Mr Hampton's Affidavit. [6] It is apparent that WorkCover is unable to reopen the Applicant's claim for compensation because of the Q-COMP Review decision. [7] The Q-COMP Review decision was dated 12 November 2010. Section 550(1)(a) of the Act provides that an appeal must be made within twenty business days of the decision (the appeal period). The Applicant's Appeal of that Q-COMP decision was filed on 30 May 2011 i.e. at a time clearly outside the s. 550(1)(a) of the Act timeframe. [8] Acting on the advice of her Solicitors, the Applicant did not request an extension of time within which to appeal but instead elected to investigate the prospects of pursuing a common law claim for damages. Subsequent to the expiration for the appeal period fresh medical evidence was disclosed by WorkCover, particularly Dr Ng's report. [9] WorkCover confirmed with the Applicant's Solicitors that it was unable to reopen the file because to do so would be contrary to the decision of Q-COMP dated 12 November 2010. Q-COMP also confirmed with the Applicant's Solicitors that it was unable to reverse its own previous decision. Thus the Applicant's Solicitors filed the Appeal against the Q-COMP decision dated 12 November 2010 on 30 May 2010 i.e. within eight business days of the receipt of the fresh medical evidence. [10] In the circumstances the Applicant has submitted that it is appropriate that the Applicant's appeal be heard despite it being filed outside the appeal period. -- 1 of 2 -- 2 [11] Given the weight of the currently available medical evidence which supports the fact that the Applicant has an ongoing requirement for treatment for her work-related condition it would seem that justice requires that the application for leave for the Applicant's appeal to be heard despite the filing of the appeal outside the time limit imposed by s. 550(1)(a) of the Act be granted. [12] In Q-COMP v Paddy Gerard Feneley (C/2010/37)1 Hall P stated: "As to the difficulty that the new appeal was out of time, the Industrial Magistrate held that the Notice of Appeal raised the question whether an extension of time should be granted. That decision has not been put in issue on the Appeal to this Court. As to the matter of power to extend time, the Industrial Magistrate held that non-compliance with the time limit at s. 550(1) of the Act was analogous to the time limit at s. 542(1) of the Act, which imposes a time limit upon application for a Statutory Review. There is now a line of authority upon s. 542(1) of the Act to the effect that, non-compliance is not fatal and may be waived where the applicant for a Statutory Review shows substantial compliance or special circumstance: see Q-COMP v Baulch, Cloncurry Shire Council v Workers' Compensation Regulatory Authority and Anor; Australian Meat Holdings Pty Ltd v Q-COMP; and Kevin John Hansen v Q-COMP. The Industrial Magistrate applied that line of authority to non-compliance with s. 550(1) of the Act. That approach has not been queried on the Appeal ...". [13] Given that Q-COMP does not oppose the current application, and further, that justice for the Applicant warrants an extension of time within which the Applicant's appeal is made, there are certainly special circumstances warranting the extension of time for the filing of the appeal in WC/2011/192. In those circumstances I extend the time for the filing of the appeal in WC/2011/192 to 30 May 2011. [14] Order accordingly. D.M. LINNANE, Vice President. Released: 4 August 2011 1 Q-COMP v Paddy Gerard Feneley (C/2010/37) -- 2 of 2 --