Kiesouw v Workers' Compensation Regulator
[2017] ICQ 6
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- Kiesouw v Workers' Compensation Regulator[2017] ICQ 6
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Kiesouw v Workers' Compensation Regulator[2017] ICQ 6
Kiesouw v Workers' Compensation Regulator[2017] ICQ 6
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Kiesouw v Workers’ Compensation Regulator [2017] ICQ 006 |
PARTIES: | DANIEL FRANCISCUS KIESOUW (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) |
FILE NO/S: | C/2017/13 |
PROCEEDING: | Appeal |
DELIVERED ON: | 27 October 2017 |
HEARING DATE: | 11 August 2017 |
MEMBER: | Martin J, President |
ORDER/S: |
|
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the appellant has commenced a workers’ compensation appeal in the Commission – where the Deputy President determined at an interlocutory proceeding that the date of the appellant’s decompensation was 26 January 2013 – where the appellant contends the Deputy President erred on a number of grounds – whether the Deputy President erred Industrial Relations Act 2016 |
CASES: | Gambaro v Workers’ Compensation Regulator [2017] ICQ 005, cited Kiesouw v Workers’ Compensation Regulator [2017] QIRC 064, related |
APPEARANCES: | The appellant appeared in person J W Merrell directly instructed by the respondent |
- [1]The appellant in this matter has lodged an appeal in the Commission against the decision of the Workers’ Compensation Regulator to reject his notice of claim for damages for psychiatric injury. An interlocutory proceeding was conducted in order to determine the date of the appellant’s decompensation. The Deputy President determined that that date was 26 January 2013. This appeal concerns that decision.
- [2]The procedural history of this matter was set out by the Deputy President as follows:
“On 14 December 2015 WorkCover Queensland (WorkCover) rejected a Notice of Claim for Damages, filed on or around 6 October 2015 by Mr Daniel Kiesouw, in accordance with section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act). Relevantly, Mr Kiesouw’s Notice of Claim recorded that the date of his injury (a psychiatric or psychological injury) occurred over the period February 2012 to September 2013 and that the injury was, inter alia, as a result of being bullied and harassed on numerous occasions between those dates.
On 14 March 2016 Mr Kiesouw sought a review of WorkCover’s decision to reject his Notice of Claim. By review decision dated 22 June 2016 the Workers’ Compensation Regulator (the Regulator) confirmed the decision of WorkCover to reject the Notice of Claim in accordance with section 32(5) and section 258 of the Act.
By Notice of Appeal filed in the Commission on 6 July 2016 Mr Kiesouw appealed the review decision of the Regulator. Since that time, the appeal has been the subject of four conferences before two different Members of the Commission before being assigned to the Commission as presently constituted for hearing.
Because of difficulties I had in identifying the date of diagnosis of Mr Kiesouw’s psychiatric or psychological injury in his Statement of Facts and Contentions filed on 16 January 2017, I Directed both Mr Kiesouw and the Regulator to file submissions (and copies of medical reports and the like) in relation to any diagnosis of the actual date of his decompensation. These submissions were received on 9 June 2017 and were the subject of a hearing on Tuesday 13 June 2017.”[1]
- [3]After conducting the hearing to determine the date of decompensation, the Deputy President reached the following conclusion:
“Such statements, on top of the matters discussed above, are all suggestive of the fact that Mr Kiesouw’s decompensation occurred on 26 January 2013 and that the events after that date about which he complains could not have contributed to the causation of his psychological or psychiatric condition, on the basis that such condition had already developed.
In light of the above considerations and observations I have determined that Mr Kiesouw’s decompensation occurred on 26 January 2013. As such, any events which occurred after 26 January 2013 cannot be considered in the conduct of the present appeal proceedings.”[2]
The appeal before this Court
- [4]In his application to appeal, the appellant states that the ground of appeal are:
“(a) Date of decompensation Appellant was not working or at work and was in the capacity of a normal citizen.
- (b)The perpetrator may have or may not have been in the capacity of being at work or working.
- (c)On medical grounds.
- (d)McConnell Dowell talked me out of making a WorkCover claim.
- (e)The Commission cannot reward McConnell Dowell for breaking the law by talking me out of making a WorkCover claim.”
- [5]There are numerous procedural defects in this appeal. The grounds of appeal were difficult to follow and the appellant’s written submissions shed no light as to the particulars of the appeal. As I said in Gambaro v Workers’ Compensation Regulator:[3]
“The requirement that grounds of appeal be stated concisely encompasses not only a demand for brevity, but also clarity. It is a breach of r 139 [of the Industrial Relations (Tribunals) Rules 2011] to inadequately articulate the actual basis of each ground of appeal.”
- [6]Additionally, the written submissions which are required to be filed should articulate the grounds of appeal clearly, drawing attention to the alleged errors in the proceedings at first instance. The appellant’s submissions did not do this.
- [7]The application to appeal is fundamentally flawed as it concerns only questions of fact. An appeal cannot be brought from the Commission on the basis of an error of fact without the leave of this Court.[4] Leave was not sought.
- [8]On the last point alone, the application must be dismissed. Notwithstanding that, I will briefly consider each of what are said to be the grounds of appeal.
Ground (a): The appellant was not working or at work, and was in the capacity of a normal citizen
- [9]The appellant does not explain this ground of appeal. Nevertheless, whether the appellant was at work or not was not relevant to the proceedings at first instance. Those proceedings concerned only the date of decompensation, regardless of whether the appellant was working or not. No error is shown.
Ground (b): The perpetrator may have or may not have been in the capacity of being at work or working
- [10]As with Ground (a), the appellant provides no explanation of this ground. The allegation made by the appellant was not a matter in issue before the Commission. Consequently, the appellant has failed to demonstrate any error in the Deputy President’s reasons.
Ground (c): Medical grounds
- [11]The appellant contends that the Deputy President erred in relying on the diagnoses of general practitioners as opposed to that of a psychiatrist. The thrust of the appellant’s submission appears to be that a general practitioner cannot make a diagnosis of an “adjustment disorder with anxiety”.
- [12]The exact nature of the appellant’s injury was irrelevant to the proceeding before the Deputy President. That proceeding was concerned with the date of decompensation. The Deputy President relied on the evidence of four general practitioners for the purpose of determining when the injury may have occurred. That was appropriate. No error is shown.
Ground (d): McConnell Dowell talked the appellant out of making a WorkCover claim
- [13]With respect to the allegation that the appellant’s employer dissuaded him from lodging his WorkCover claim, the Deputy President said:
“ Further, it is not relevant to my determination of the date of Mr Kiesouw's decompensation that Mr Kulk might have talked him out of lodging a workers' compensation claim on 29 January 2013. Rather, the fact that Mr Kiesouw asserts that Mr Kulk talked him out of lodging a claim is suggestive of the fact that he (Kiesouw) had suffered an injury and was proposing to lodge a claim in relation to it.”[5]
- [14]In his written submissions, the appellant merely restated the same allegations made in the Commission. He does not establish any error in the Deputy President’s reasoning.
Ground (e): The Commission cannot reward McConnell Dowell for breaking the law by talking the appellant out of making a WorkCover claim
- [15]The appellant provided no explanation of this ground or how it related to the reasons of the Deputy President. Rather than a ground of appeal, it appears to be an expression of dissatisfaction with his situation.
- [16]With respect to each ground of appeal, instead of demonstrating an error, the appellant has merely disagreed with the findings at first instance. The appeal should be dismissed.