Belal Yousif v Workers' Compensation Regulator
[2017] ICQ 4
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Belal Yousif v Workers' Compensation Regulator[2017] ICQ 4
- Add to List
Belal Yousif v Workers' Compensation Regulator[2017] ICQ 4
Belal Yousif v Workers' Compensation Regulator[2017] ICQ 4
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Yousif v Workers’ Compensation Regulator [2017] ICQ 004 |
PARTIES: | BELAL YOUSIF (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) |
FILE NO/S: | C/2017/12 |
PROCEEDING: | Appeal |
DELIVERED ON: | 15 September 2017 |
HEARING DATE: | 7 August 2017 |
MEMBER: | Martin J, President |
ORDER/S: | 1. The appeal is dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – PROCEDURE – APPEAL, JUDICIAL REVIEW AND STATED CASES – ORDERS ON APPEAL – where the appellant’s initial claim for compensation was rejected – where the appellant appealed that decision – where the parties agreed on consent orders regarding that appeal – where the Commission made those orders – where the claim was again rejected – where the appellant appeals that decision to the Commission – where the Commission made orders regarding the conduct of the appeal to the Commission – where the appellant appeals those orders – whether the Commissioner erred in law in making the orders Workers’ Compensation and Rehabilitation Act 2003, s 131 Industrial Relations Act 2016, s 531 |
CASES: | Blackwood v Adams [2015] ICQ 001, cited Carlton v Blackwood [2017] ICQ 001, cited Dinch v Dinch [1987] 1 WLR 252, cited General Accident Fire & Life Assurance Corp Ltd v Commissioners of Inland Revenue [1963] 1 WLR 421, cited Harris v Caladine (1991) 172 CLR 84, cited Lane v Q-COMP (C/2009/34) – Decision Trimble v Q-COMP (WC/2012/73) – Decision |
APPEARANCES: | F Abdullah as agent for the appellant S McLeod instructed by the Workers Compensation Regulator for the respondent |
- [1]This matter comes before the court in slightly unusual circumstances. It requires the construction of a consent order made by the Queensland Industrial Relations Commission.
- [2]At the relevant times, Mr Yousif was a lecturer employed by the University of Southern Queensland. On 29 April 2015, he made an application for compensation under the Workers’ Compensation and Rehabilitation Act 2003 (the Act) for a condition described as “psychological system in general, anxiety/depression combined mood”.
- [3]The application was rejected by WorkCover on the basis that an injury within the meaning of s 32 of the Act had not been sustained. Notwithstanding that WorkCover was uncertain about the date of commencement of the appellant’s claimed injury, it waived the time limit under the Act in the appellant’s favour.
- [4]On a review of WorkCover’s decision, the Regulator set aside the decision to waive the time limitation and determined that the application was not available to be made in accordance with s 131 of the Act.
- [5]An appeal against that decision was lodged and Statements of Facts and Contentions were filed by each party. That appeal was settled and the Commission was asked to make consent orders. Those orders were:
“BY CONSENT, THE ORDER OF THIS COMMISSION IS THAT:
- The appeal is allowed;
- The decision of the Workers’ Compensation Regulator of 6 October 2015 is set aside and substituted with the following decision:
- Mr Yousif’s application for compensation in relation to an incident on 11 November 2014 was lodged within the legislative timeframe, in accordance with s 131 of the Act;
- The matter be referred back to the Review Unit to determine whether Mr Yousif has sustained an injury, namely, an aggravation of a pre-existing psychiatric injury as a result of the Public Interest Disclosure incident and other on-going issues on 11 November 2014 between Mr Yousif and his employer;
- If the Review Unit determines Mr Yousif has sustained an injury (as detailed above), the Review Unit is to determine Mr Yousif’s injury:
- Arose out of or in the course of his employment
- Whether his employment was a major significant contributing factor
- Is excluded by s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003.
Each party is to bear their own costs.”
- [6]After further consideration by the respondent, in accordance with the terms of the consent order, the application was again rejected on the basis that an injury was not sustained within the meaning of s 32 of the Act because s 32(5) operated to exclude the alleged injury.
- [7]That decision has been appealed. But, an issue arose during a conference held pursuant to s 552A of the Act in which a difference between the parties as to the proper construction of the consent order became apparent. That difference was the subject of a preliminary issues determination and it is that determination which has led to this appeal.
- [8]The orders made by the Commission were:
“1. The appeal is to determine whether an injury, namely, an aggravation of a pre-existing psychiatric injury, which occurred on 11 November 2014 meets the requirements of s 32 of the Workers' Compensation and Rehabilitation Act 2003.
- The Public Interest Disclosure incident which occurred on 11 November 2014 and other ongoing issues that presented on that day fall within the scope of the appeal.
- Whether or not a particular event that arose prior to the decompensation was a factor in, or contributed to, the injury is not within the scope of the appeal.
- The appeal is returned to the Registry for Directions to be issued.”
- [9]In this appeal, the appellant contends that the Commission erred in making the third order. Before dealing with the grounds of appeal, it is appropriate that I consider two matters which arise, in a general way, in the appeal:
- (a)The use to which Statements of Facts and Contentions may be put; and
- (b)The principles to be applied when construing orders made by the Commission.
- (a)
Statements of Facts and Contentions
- [10]The Commissioner relied, in part, on the Statement of Facts and Contentions filed by the appellant. The role of such Statements was the subject of submissions and it will assist if their status is examined before the grounds of appeal are considered.
- [11]In appeals brought to the Commission under the Act, it was once the standard practice for a direction to be given requiring the appellant to file and serve a Statement of Stressors. It is now the common practice for a direction to be given requiring the parties to file and serve Statements of Facts and Contentions. The legislative power to make such a direction is found in s 451(2)(a) of the Industrial Relations Act 2016 (IR Act). More detailed provisions are contained in r 41 of the Industrial Relations (Tribunals) Rules 2011. Rule 45 also provides that, among other things, the Commission may dismiss a proceeding if there is a failure to comply with a direction.
- [12]
“An appellant’s case has to be known before the hearing starts. The Commission cannot allow a case to “evolve” and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment.”
- [13]A Statement of Facts and Contentions is not attended with the same level of formality as pleadings in the traditional sense are. The Commission is relieved, by s 531 of the IR Act, of many of the strict rules which apply in the civil courts. But, the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases. This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal. It follows, then, that the Commission is entitled to rely on the Statement as a complete statement of a party’s case and, if an admission is made, to rely on that admission.
- [14]Section 531 requires that the Commission be:
“… guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of—
- (a)the persons immediately concerned; and
- (b)the community as a whole.”
- [15]It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission’s power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.
Construing an order
- [16]The rules of construction which apply to orders ordinarily made also apply to consent orders. The task for the court is to construe the language in the order, not to search for the subjective intention of the consenting parties.[3]
- [17]In this case, the appellant argued that there is some ambiguity in the use of the words “and other ongoing issues”. As I understand his case, the appellant contends that the insertion of those words into the order allows him to make claims with respect to alleged behaviour which occurred well outside the limitation period. They do not. Unless an applicant obtains a waiver under s 131 of the Act, the time limit of six months applies. The events to which the applicant refers all occurred more than six months before he made his application.
- [18]In any event, the case for the appellant as outlined in his Statement of Facts and Contentions of 26 August 2016 made it clear that he was pursuing an “aggravation” claim. In his Statement he said:
“30. The Appellant also contends that the aggravation of the Appellant’s initial injury in relation to the public disclosure (whistleblower) occurred on 11 November 2014 when the Appellant met Mr Les Mitchell in regard to the investigation of the matter as stated in paragraph 17 above. …
31. Considering the fact that the Appellants’s application for compensation was in respect of the incident of aggravation resulting from the public disclosure issue on 11 November 2014; the Appellant contends that his application lodged on 30 April 2015 was well within the time limit of six months from the date of aggravation of the initial injury.”
- [19]It appears that the appellant has misconceived the effect of section 131 of the Act and the categorisation of his own claim set out in the Statement of Facts and Contentions. The appellant is bound by the case presented on his behalf in the Statement of Facts and Contentions. But, as was accepted by Mr McLeod during argument, it would be open to the appellant to conduct a case designed to establish that there was an underlying psychiatric condition in existence on 11 November 2014 and that that condition was aggravated by the public disclosure issue. If a suitably qualified expert were to conclude that he had such an underlying condition, then it would not matter whether it had been caused by work-related matters or not.
Grounds of Appeal
- [20]The basis of the appellant’s case was that “ongoing issues” were present on 11 November 2014 and Order 3 precluded events and stressors which arose before that date from the scope of the appeal. As I have explained above, if the events and stressors alleged by the appellant contributed to an underlying condition then evidence might be called to establish that but the reference to “other ongoing issues” does not allow the appellant to evade the requirements of section 131 of the Act.
- [21]There were six grounds of appeal. They may be dealt with in this way:
- (a)Order 3 contradicts Order 2 in that the ongoing issues presented on 11 November 2014 which fall within the scope of the appeal as provided for in Order 2 also includes events and stressors which arose prior to 11 November 2014 and Order 3 effectively precludes them from the scope of the appeal.
- (a)
- [22]The Commissioner correctly reasoned that the Statement of Facts and Contentions relied upon a discrete injury suffered on 11 November 2014. It was unnecessary to consider what may have occurred before that date which either independently or cumulatively led to a condition which, the appellant says, was aggravated on that date.
- [23]Order 3 does not contradict Order 2. The construction of the case before the Commission arrived at by the Commission is consistent with the written outline of the appellant’s case.
- (b)Order 3 is contrary to s 31(2) of the Act which permits the appellant to refer to repeated or continuous exposure to events or stressors in relation to an injury or an aggravation of his psychiatric injury.
- (b)
- [24]The Commissioner did consider the appellant’s argument that the word “event” contained in s 31(2) allowed him to refer to repeated or continuous exposure to various incidents and stressors and that this led to the insertion of the phrase “other ongoing issues” into the Order. But, as was observed, this was not the case advanced by the appellant in his Statement of Facts and Contentions. The appellant was bound by that document and could not depart from it in the absence of an order from the Commission allowing him to do so. Order 3 is not such an order.
- (c)Order 3 is contrary to the decisions in Lane and Trimble which held that events and stressors which occurred over a period of time could be considered in determining whether they contributed to an aggravation of an injury.
- (c)
- [25]It is unnecessary to consider whether or not the decisions in Lane[4] and Trimble[5] have the effect contended for by the appellant. As has been pointed out above, the appellant is bound by the case advanced by him and that case was limited to the aggravation of an existing condition on 11 November 2014.
- (d)Order 3 is wrong in law as it effectively prevents the appellant from relying on the continuous exposure to earlier events and stressors to establish the history of deficiencies and the lack of management action as contributory factors to the aggravation of his psychiatric injury apart from the main causative factor of the Public Interest Disclosure incident on 11 November 2014.
- (d)
- [26]This argument again overlooks the case set out by the appellant in his Statement of Facts and Conditions. He seeks to rely on authorities relating to the history of management action. But the cases to which he refers were cases in which it had been asserted by the worker that particular incidents had caused the alleged injury.
- (e)The Commission erred in its decision by wrongly concluding that the meeting of 11 November 2014 between the appellant and Mr Mitchell was only in relation to the Public Interest Disclosure issue.
- (e)
- [27]The Commissioner did not arrive at such a conclusion. The purpose of the hearing was to determine the meaning of the consent order. It was not to make findings of fact about the alleged aggravation and the Commissioner did not make any such findings.
- (f)The Commission erred in holding that the provision “and other ongoing issues” could only encompass ongoing issues that were identified in the appellant’s Statement of Facts and Contentions as contributing to the aggravation on that particular day by failing to consider that the Statement of Facts and Contentions also incorporated and alluded to the facts of prior incidents that were part of the ongoing issues which the appellant was continually exposed to at the time of the Public Interest Disclosure incident on 11 November 2014.
- (f)
- [28]The mere fact that there are references to earlier events in the Statement of Facts and Contentions does not incorporate them into the claim made by the appellant. That claim was clearly set out in the paragraphs excerpted above. The appellant argues that because the appeal to the Commission is a hearing de novo he cannot be confined to one issue. Such a hearing, though, must have boundaries and a party is not entitled to go beyond the claim that has been articulated in the Statement of Facts and Contentions. As Dawson J said in Harris v Caladine:[6]
“An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and ‘the informant or complainant starts again and has to make out his case and call his witnesses.” (emphasis added)
- [29]The fact that an appellant “starts again” does not mean that he or she does so unrestricted by any requirements as to the identification of the nature of the case. That identification was made in the Statement of Facts and Contentions and the appellant is bound by it.
Conclusion
- [30]The appellant has not made out any ground of appeal. The appeal is dismissed.
Footnotes
[1] [2015] ICQ 001 at [19].
[2] [2017] ICQ 001 at [18].
[3] See, for example, General Accident Fire & Life Assurance Corp Ltd v Commissioners of Inland Revenue [1963] 1 WLR 421 at 430; Dinch v Dinch [1987] 1 WLR 252 at 263-264.
[4] Lane v Q-COMP (C/2009/34) – Decision
[5] Trimble v Q-COMP (WC/2012/73) – Decision
[6] (1991) 172 CLR 84 at 124