Noble v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 143
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- Noble v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 143
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Noble v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 143
Noble v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 143
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Noble v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 143 |
PARTIES: | Noble, Paul Colin (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) |
CASE NO: | WC/2014/234 |
PROCEEDING: | Appeal against decision of the Regulator |
DELIVERED ON: | 16 July 2015 |
HEARING DATES: | 10 September 2014 16 July 2015 |
MEMBER: | Deputy President O'Connor |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF THE REGULATOR - Whether claim for compensation was lodged in time - Whether claim was lodged within 6 months after the entitlement to compensation arose - Entitlement to compensation arises when injury is assessed as an injury within the meaning of the Act - Appeal allowed. |
CASES: | Workers' Compensation and Rehabilitation Act 2003, s 131 Blackwood v Toward [2015] ICQ 008 WorkCover Queensland v Downey [2001] ICQ 76 |
APPEARANCES: | Mr M.P. Williams, Counsel instructed by Brandon & Gullo for the Appellant. Mr F.L. Lippett, Counsel directly instructed by the Worker's Compensation Regulator. |
Decision from the bench
- [1]This is an appeal against a decision of the Regulator that the appellant failed to make a valid and enforceable application pursuant to s 131 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
- [2]Section 131(1) provides that:
- (1)An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.
- [3]In considering the matter I have reviewed the material that is currently before the Commission, in particular the Exhibits 1 and 2 and hearing from both the applicant and respondent and considered the decision of Blackwood v Toward[1] where his Honour, the President, made it very clear the approach that ought to be adopted in determining applications under s 131, and, in particular, the President's view that the decision of WorkCover Queensland v Downey[2] is no longer good law.
- [4]Section 141(1) provides that
- (1)The entitlement to compensation for an injury arises on the day the worker is assessed by—
- (a)a doctor; or
- (b)if the injury is a minor injury—a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or
- (c)if the injury is an oral injury and the worker attends a dentist—the dentist.
- [5]I refer to paragraph 43 and 44 of the decision of Blackwood v Toward where his Honour wrote:
"43. I now turn to the meaning of the word 'assess' in s 141(1). The word is more commonly associated with matters concerning, among other things, the determination of the value of property or the fixing of an amount of taxation which is owed. The Macquarie Dictionary (5th Edition) gives another meaning: 'to measure or evaluate' and that is the meaning which should be given to 'assess' in the context of the Act.
- In order for a doctor to 'assess' an injury as an 'injury' within the meaning of the Act there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment. It has not been established that the doctors directed themselves to that issue until the time of the making of the claim. Each of them was concerned with the treatment of Mr Toward. They knew that he had suffered injuries at various times but they did not direct their minds to the question of which physical injury, if any, arose out of employment."
- [6]In many respects, the factual situation before the Commission in this current matter is on all fours with what his Honour found in paragraph 44 of his decision. Again, as his Honour found in Toward, the Regulator has not on this occasion demonstrated that such a conclusion or opinion was either formed or communicated outside the six months preceding the lodgment of the claim.
- [7]I am therefore of the view that the application was within time and that I should uphold the appeal.
Orders
- [8]I make the following orders:
- The appeal is upheld;
- The decision of the respondent dated 4 July 2014 is set aside;
- The Commission substitutes a new decision that the appellant's Application for Compensation is both valid and enforceable;
- The matter is remitted back to WorkCover Queensland for the determination of whether the appellant has suffered an injury within the meaning given to that term under s 32 of the Workers' Compensation and Rehabilitation Act 2003; and
- The respondent is to pay the appellant's costs of and incidental to this appeal as and from the date of the delivery of Blackwood v Toward [2015] IQC 008 on 24 March 2015, to be agreed or, failing agreement, to be the subject of a further application to the Commission.