Appo v Q-Comp [2003] ICQ 56 (2003) 174 QGIG 1120

1120 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 November, 2003 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Workers’ Compensation and Rehabilitation Act 2003 – s. 561 – appeal against decision of industrial magistrate Kelvin Noel Appo AND Q-Comp (No. C49 of 2003) PRESIDENT HALL 13 November 2003 DECISION By a decision of 3 October 2002, WorkCover Queensland rejected the appellant’s claim for benefits under the WorkCover Queensland Act 1996 (the relevant Act at all material times). A decision of the Statutory Review Unit of 22 November 2002 confirmed WorkCover Queensland’s decision. There was an appeal to the Industrial Magistrate at Bundaberg. By a decision given on 15 May 2003 the appeal was dismissed. This is an appeal against the decision of the Industrial Magistrate. By consent of the parties, the employer was given the right to be heard. The employer exercised that right. Q- Comp did not appear at the hearing and did not oppose the appeal being allowed. The injury (to the appellant’s right shoulder) is said to have occurred in June 2001. On 22 August 2001 the appellant sought medical treatment. He was given some analgesic tablets and some anti-flammatory cream to rub into his shoulder, but did not receive a medical certificate for either time off work, a restriction to light duties or modified duties. He simply returned to work and continued to perform his usual duties. Despite continuing at work, the appellant also returned from time to time to the treating doctor for further treatment. Those treatments included cortisone injections and an ultrasound treatment. Once again, no medical certificates for light duties, modified duties or time off work were provided. On 25 July 2002, the appellant sustained another injury at work. By reason of that injury and the shoulder injury previously referred to, the appellant was certified by the treating doctor as being unfit for work. The ground on which WorkCover Queensland rejected the claim for compensation, a ground upheld by the Statutory Review Unit and the Industrial Magistrate, was that the application for compensation was lodged more than 6 months after the entitlement to compensation arose, see s. 158(1). It is common ground that the time at which an entitlement to compensation arises is fixed by s. 168. Mr McLean Williams of counsel for the appellant relies upon the decision of this Court in WorkCover Queensland v. Downey (2001) 168 QGIG 381 at 382 for the proposition that “assessed” at s. 168(1) means “assessed by a doctor as resulting in total or partial incapacity for work”. In reliance upon s. 159, Mr McLean Williams builds upon the decision in WorkCover Queensland v. Downey, ibid, and develops the proposition that an injury is not “assessed” and the entitlement to compensation does not arise, until the doctor issues a certificate. The employer’s solicitor, Mr McPherson, contests both propositions. Notwithstanding Mr McPherson’s careful argument, I am not prepared to reverse the decision in WorkCover Queensland v. Downey, op. cit. I do not accept that ss. 168(1) and (2) are about entirely different matters. It seems to me that because subsection (2) creates an exception to the rule established by subsection (1), subsection (2) must be taken to throw some light on the meaning of “assessed” at subsection (1). In any event, the word used at s. 168(1) is “assessed”, not “diagnosed”. One may rhetorically ask what there is for a doctor to assess other than the extent of the incapacity for work. Further, one can well understand why the legislative scheme treats the entitlement as arising at, and provides for time to run from, the point at which the previously inchoate liability is crystallised by the assessment of the extent of the incapacity for work: compare Tooth and Co Ltd v. Newcastle Developments Ltd (1966) 116 CLR 167 at 170, “ ‘Assessment’ in the context of the Act [Land Tax Management Act 1956-1963 (NSW), s. 16(4)] means no more than the ascertainment of the extent of a previously existing liability”. The argument that so construed s. 168(1) may create difficulties where the payment of medical expenses is sought prior to an assessment of incapacity is less than convincing. The regulations, see WorkCover Regulation 1997 at s. 51 and 52, seem to authorise payment in at least some circumstances before the assessment of incapacity is made. (It is not necessary to determine whether there is an “entitlement” to payment of medical expenses prior to assessment of the extent of incapacity.) Whilst it is my view that the decision in WorkCover Queensland v. Downey, op. cit. is the correct statement of the law, I am quite un-attracted to the argument that there is no assessment until the assessment is made manifest in a certificate. No doubt that is what would ordinarily happen, but I can see no reason why time should not run against a worker who, for example, declines the issue of a certificate after being informed by a medical practitioner that he is partially incapacitated for work. I notice that in dealing with a “notice of assessment” under the Income Tax Assessment Act 1936 (Cwth) in Re Deputy Commissioner of Taxation (WA); Ex parte Briggs (1986) 69 ALR 185 at 189, the Full Court of the Federal Court adopted the observations of Isaac J upon the Income Tax Assessment Act 1922 in R. v. DCT (SA) (1926) 37 CLR 368 at 373: “An ‘assessment’ is not a piece of paper: it is an official act or operation; it is the Commissioner’s ascertainment, on consideration of all relevant circumstances, including sometimes his own opinion, of the amount of tax chargeable to a given taxpayer. When he has completed his ascertainment of the amount, he sends by post a notification thereof called ‘a notice of assessment’. . . But neither the paper sent nor the notification he gives is the ‘assessment’. That is and remains the act or operation of the Commissioner.”. -- 1 of 2 -- 28 November, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1121 The conclusion that the issue of a certificate is not critical is of some moment here. I have considered the Industrial Magistrate’s decision at some length. The critical passage appears to be: “His partial incapacity for work was medically assessed on that date [viz. 22 August 2001] to the extent that he received prescription medication.”. It seems to me that what His Worship was saying was that the injury which gave rise to the partial incapacity was assessed as requiring treatment on that day. With respect to His Worship, I am not satisfied that His Worship ever confronted the critical question, viz. nomination of the date at which the doctor assessed the extent of the incapacity for work. In those circumstances, whilst I am content to set aside the decision of the Industrial Magistrate, I find myself unable to substitute a decision that the application for compensation lodged by the appellant with WorkCover Queensland on 31 July 2002 be accepted. The difficulty is that there was evidence before the Industrial Magistrate on the basis of which, to put the matter as moderately as possible, it was plainly arguable that the doctor had assessed the appellant as being (at least) partially incapacitated for work long before issuing the certificate on 31 July 2002. Mr McLean Williams seeks to avoid the difficulty by challenging the Industrial Magistrate’s decision refusing to waive the time limit pursuant to s. 158(5)(1)(c). With respect, the Industrial Magistrate’s decision was a quintessential exercise of discretion. This Court is entitled to interfere with an Industrial Magistrate’s exercise of discretion only in the limited circumstances outlined in House v. The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ. Given the Industrial Magistrate’s finding that the appellant had acted on a considered decision, taken out of regard for his wife’s health and in consequence of financial pressure, neither to absent himself from work or to claim compensation, though aware that both courses were open to him, I am unable to say that the Industrial Magistrate acted on a wrong principle or that the exercise of discretion was unsound or unreasonable or otherwise miscarried. I dismiss the appeal against the Industrial Magistrate’s exercise of discretion. That leaves open the matter of what is to be done with the appeal. The issue is whether this Court should rehear the matter on the evidence before the Industrial Magistrate or, if there be power to do so, as to which there is room for argument [see the conjunctive “and” at s. 510(1)(c)], remit the matter to the Industrial Magistrates Court to be heard and determined according to law. It seems to me that the appropriate course is to mention the matter in order that argument may be heard upon that issue. My Associate will contact the appellant, the intervenor and, indeed, the respondent to arrange a time. Any rehearing on the record will not be listed on the same day. It seems to me that it would be burdensome to require the preparation for argument on a rehearing before it is certain that there will be a rehearing. I adjourn the appeal to a date to be fixed. I reserve all questions as to costs. Dated 13 November 2003. D.R. HALL, President. Released: 13 November 2003 Appearances: Mr A. McLean Williams, instructed by Payne Butler Lang Solicitors, for the appellant. Mr J. McPherson, of McCullough Robertson Lawyers, for the employer. -- 2 of 2 --