Eureka Street Pty Ltd v Q-COMP (1st Respondent) & Karyn Ann Rane (2nd Respondent) [2007] QIRC 14 (2007) 184 QGIG 102

[Extract from Queensland Government Industrial Gazette, dated 23 February, 2007, Vol. 184, No. 8, pages 102-104] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal against decision of Q-COMP Eureka Street Pty Ltd AND Q-COMP (1st Respondent) AND Karyn Ann Rane (2nd Respondent) (WC/2006/83) COMMISSIONER EDWARDS 9 February 2007 DECISION In this matter, Erueka Street Pty Ltd (Appellant) seeks an extension of time to appeal the decision of WorkCover given on 15 August 2006. This appeal was filed on 1 November 2006. Ms Karyn Rane (2nd Respondent) made application to become a party to the Appeal on 17 November 2006. In McQuade and Hayes v WorkCover Queensland (2000) 165 QGIG 126, Hall P. dealt with sections 499 and 505 of the WorkCover Queensland Act 1996 (the equivalent current sections 550 and 557 of the Workers' Compensation and Rehabilitation Act 2003 (the Act)) and the question as to whether s. 499 was mandatory or directory. Hall P. stated: "The matter as I say is not clear, but after some vacillation, I have come to the conclusion that s. 499 of the WorkCover Queensland Act 1996 is directory. It is common ground that on such a view s. 505 vests power to extend time.". The Commission accepts there is discretion to extend time within which to appeal. As outlined, Ms Rane was employed by the Appellant as a sales assistant usually at the Sherwood store. On 3 and 4 February 2006 Ms Rane was required to work at the Rocklea store and began to suffer symptoms such as coughing, watery eyes and sneezing. Later she could feel a mucus build-up in her throat and her top lip was swelling etc. Ms Rane believed that her symptoms arose from exposure to chemicals used in the transport of the furniture from China. Ms Rane lodged an application for compensation on 16 February 2006 in respect of her physical injuries which initially was rejected by WorkCover (by reasons for decision dated 4 May 2006). WorkCover were of the opinion that Ms Rane had suffered a physical injury, but found that her employment was not a significant contributing factor to the personal injury. This decision was set aside by Q-COMP in its decision dated 9 August 2006 (following an application for review dated 27 June 2006) and the claim was found to be one for acceptance. This decision has been appealed. A further application for review dated 1 August 2006 was lodged in respect of a psychiatric injury alleged to have arisen as a consequence of the physical injury. WorkCover by reasons for decision dated 14 July 2006 accepted that Ms Rane had suffered an injury, but once again did not accept that her employment was a significant contributing factor to the injury. WorkCover referred Ms Rane to Dr De Leacy, Psychiatrist, who provided a report dated 7 July 2006 in which he opined that:  Ms Rane was suffering from an adjustment disorder with anxiety;  stressors of the case related to Ms Rane experiencing a range of physical symptoms which she attributed to exposure to methyl bromide. Ms Rane also became stressed because of the presence of physical symptoms; and  the development of the adjustment disorder at the time that Ms Rane was off work was a direct consequence of the physical injuries symptoms. By reasons for decision dated 15 August 2006, Q-COMP once again set aside the decision of WorkCover and found that the psychiatric injury was one for acceptance. It was found by Q-COMP that Ms Rane was suffering from an Adjustment Disorder with Anxiety and that the cause of her psychiatric injury was the accepted workplace physical injury. -- 1 of 2 -- 2 In support of the application for extending the time, Mr Agnew outlined that the Appellant was unable to obtain proper legal advice as to how to appeal the Q-COMP decision until the Appellant approached the office of Agnew D'Arcy Legal on 28 August 2006. As a result, it is the submission of Mr Agnew that advice as follows was given: "we subsequently provided advice to the Appellant to appeal the 'physical injury' decision only, as this would, if successful, invalidate the decision in relation to 'psychological injury' decision. Unfortunately, subsequent advice from Counsel indicated that the Appellant should have also lodged an additional appeal against this 'psychological' decision. In our submission the Appellant should not be penalised for this representative error.". In his submission Mr Agnew relied upon the view expressed by Lord Denning MR in Salter Rex & Co v Ghosh (1971) 2QB 597 at 601 in which Lord Denning stated that a litigant should not suffer as a result of a mistake of his lawyer. In regard to prejudice to the Respondents, Mr Agnew submitted neither Q-COMP nor Ms Rane will suffer any prejudice if the time for Appeal is extended the additional period as Ms Rane is still in receipt of workers' compensation benefits. Mr Agnew understands all relevant witnesses and experts are still available. Furthermore, WorkCover have continued to pay Ms Rane workers' compensation benefits since their decision on 15 August 2006 until 20 November 2006. Mr Agnew further submitted Ms Rane has tendered her resignation with the Appellant effective 15 November 2006 and he understands Ms Rane is returning to full-time work at the furniture section of a Harvey Norman's store in Brisbane. In considering prejudice to the Appellant if the extension is not granted, Mr Agnew indicated that if the decision is allowed to stand it shall have a direct effect on the Appellant's workers' compensation premium. In opposing the application, Mr O'Neill on behalf of the 1st Respondent, submitted that the Appellant has at all times been legally represented during the course of the matter. The Appellant was able to lodge an Appeal in relation to the physical injury within the relevant timeframe (or shortly thereafter such that there had been substantial compliance). The Appellant on the basis of legal advice has made a deliberate decision not to appeal the decision of the 1st Respondent relating to the psychiatric injury. Mr O'Neill submitted that the 1st Respondent and the Intervener should not now be penalised by having to conduct a proceeding that it otherwise barred if the decision has occurred because of poor advice received from the Appellant's legal advisors. If the Appellant chose not to appeal as a consequence of incorrect legal advice, then the Appellant will have a remedy against its solicitors. The substantial delay in lodging the Appeal cannot constitute compliance with the requirements of s. 550(1) of the Act. As outlined by the 1st Respondent in referring to McQuade and Hayes v WorkCover Queensland (2000) 165 QGIG 126, the Appellant can only be entitled to an extension of time if there was substantial compliance with the limitation period set down in s. 550(1) of the Act. On consideration of the evidence of Ms Treston, the reasons given for the delay in lodging the application, together with the availability of legal advice, the application is refused. K.L. EDWARDS, Commissioner. Hearing Details: Appearances: 2006 7 December Released: 9 February 2007 Mr C. Agnew of Agnew D'Arcy Legal and with him Mr D. Carey on behalf of the Appellant. Mr P.B. O'Neill instructed by Ms A-M. Treston of Q-Comp on behalf of the First Respondent. Mr P.B. de Plater instructed by Ms T. Cush of Turner Freeman on behalf of the Second Respondent. Government Printer, Queensland The State of Queensland 2007. -- 2 of 2 --