Toll Personnel Pty Ltd v Workers' Compensation Regulator
[2016] QIRC 140
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- Toll Personnel Pty Ltd v Workers' Compensation Regulator[2016] QIRC 140
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Toll Personnel Pty Ltd v Workers' Compensation Regulator[2016] QIRC 140
Toll Personnel Pty Ltd v Workers' Compensation Regulator[2016] QIRC 140
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Toll Personnel Pty Limited v Workers' Compensation Regulator [2016] QIRC 140 |
PARTIES: | Toll Personnel Pty Limited (Applicant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2016/180 |
PROCEEDING: | Application for stay |
DELIVERED ON: | 13 December 2016 |
HEARING DATES: | 18 November 2016 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Black |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION – APPLICATION FOR STAY - Where the review unit of the WCR had set aside the decision of the self-insured employer - Where the employer appealed to the Commission against that decision - Where the employer asks that the WCR review decision be stayed pending the resolution of that appeal – Standing of a self-insurer to bring an application for stay in question. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 s 540, s 549, s 566; Industrial Relations Act 1999, s 274, s 347; Industrial Relations (Tribunal) Rules 2011 s 134; Toll North Pty Ltd AND Q-COMP & Anor (B2013/32); Brisbane City Council v Gillow and Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 124; Alexander v Cambridge Credit Corporation Ltd Ltd (1985) 2 NSWLR 685; JBS Australia Pty Limited v Workers' Compensation Regulator [2016] QIRC 138 |
APPEARANCES: | Mr R Morton, Counsel, instructed by Mills Oakley Limited, for the Appellant. Mr PB Rashleigh, Counsel, instructed by the Workers' Compensation Regulator, the Respondent. |
Decision
Background
- [1]Toll Personnel Pty Limited, the applicant in this matter, is a licensed self-insured employer under the Workers' Compensation and Rehabilitation Act 2003 ("WCR Act"). The applicant in these proceedings seeks an order staying the decision of the Workers' Compensation Regulator's review unit dated 2 September 2016. The effect of the review unit decision was to set aside a decision of the self-insurer and to determine that the worker's claim for compensation was one for acceptance.
- [2]The worker, Mr Raymond Ward, had sought compensation benefits for an injury suffered on 31 July 2015. His application for compensation was accompanied by a medical certificate dated 11 August 2015 which described the injury as a haematoma or tear of the right rectus femoris muscle. The injury was identified through radiological studies performed on 6 August 2015.
- [3]About eleven weeks after his accepted injury, Mr Ward sought to claim benefits in respect to another injury, a fracture of the neck of his right femur (a hip fracture), which he said was also sustained on 31 July 2015. This claim was rejected by the self-insurer, but was subsequently allowed by the review unit. It is this decision that the applicant has appealed to the Commission, and in respect of which it now seeks a stay order.
- [4]The affidavit sworn by Mr Crouch on 8 November 2016 includes a statement that "the amount of lump sum compensation presently awardable to the Claimant under section 180 of the Act" totals $62,984.
Power to Grant Stay
- [5]It was the applicant's position that both s 274 and s 347 of the Industrial Relations Act 1999 ("IR Act") were a source of power for the grant of the stay sought. The applicant acknowledged however that if the Commission as currently constituted was content to follow the decision of DP O'Connor in Toll North Pty Ltd AND Q-COMP & Anor,[1] it was unnecessary to rule on the proposition that s 347 of the IR Act was a valid source of power.
- [6]In my decision in JBS Australia Pty Limited v Workers’ Compensation Regulator,[2] I outlined my reasons for accepting the proposition that s 274 of the IR Act established jurisdiction to entertain an application for stay brought in respect to an appeal lodged under the WCR Act. The jurisdictional determination needed to be made in this matter is based on a consideration of the same, or very similar, arguments to those advanced in JBS. For the reasons given in JBS, I am satisfied that jurisdiction to grant a stay is available via s 274 of the IR Act.
Standing to bring Application for Stay
- [7]While the respondent accepted that the Commission had jurisdiction to order a stay of the appeal, it argued that the applicant in this matter did not have standing to bring an appeal against the decision of the review unit dated 2 September 2016, for the following reasons:
- (i)While the applicant was both the employer and a self-insurer under the provisions of the WCR Act, a self-insurer does not have any standing to appeal a decision of the review unit (and therefore bring an application for stay);
- (ii)The stay application is brought as the self-insurer, not as the employer of Mr Ward;
- (iii)The stay application is focussed on the amounts of money that the self-insurer will have to pay Mr Ward as a consequence of the review decision;
- (iv)The decision in Gillow[3] was authority for the proposition that the self-insurer does not have standing to bring an appeal from a decision of the review unit;
- (v)Similar to the circumstances associated with Gillow, the self-insurer's workers' compensation unit is not a separate entity from the employer;
- (vi)It is clear on the affidavit of Mr Crouch, sworn on 8 November 2016, that payments to Mr Ward are to be made by the workers' compensation unit of the applicant.
- [8]It was the respondent's submission that s 549(1) of the WCR Act was clear in not providing any standing to an insurer or self-insurer to appeal a decision of the review unit. It was further submitted that the only right of appeal given to an insurer is that provided by s 549(2) of the WCR Act, but that this right of appeal is limited to decisions specified in s 540(1)(a)(i) to (vi) of the WCR Act which do not include decisions to allow or reject an application for compensation.
- [9]In JBS, I held that the proposition that an employer who is a self-insurer had no standing to appeal a review decision of the regulator was not sustainable. The arguments advanced by the respondent in this matter are similar to the arguments put in the JBS proceedings and there is no significant difference in the factual matrices. I am not persuaded to reach a different conclusion in this matter and reject the respondent's submission on standing.
Exercising a Discretion to Grant a Stay
- [10]In Alexander v Cambridge Credit Corporation Ltd[4] the Court of Appeal in New South Wales made an extensive examination of the matters relevant to the granting of a stay, and enumerated a number of principles relevant to the consideration of an exercise of the discretion:
"
• The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties.
- The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus.
- The court has a discretion involving the weighing of considerations such as balance of convenience and the competing rights of the parties.
- Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the court may refuse a stay.
- Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.
- The court will not generally speculate upon the appellant's prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time.
- As a condition of a stay the court may require payment of the whole or part of the judgment sum or the provision of security."
Appeal Prospects
- [11]The approach is not to speculate upon the appellant's prospect of success, but to make a preliminary assessment about whether the appellant has an arguable case.
- [12]While the respondent opposed the application for stay and submitted that the applicant bears the onus of establishing that a stay of the review unit decision should be granted, it conceded that the applicant had an arguable case on appeal.
- [13]The applicant submitted that its prospects on appeal were positively demonstrated by a review of the relevant medical evidence which demonstrated that Mr Ward did not suffer a fracture to his right hip on 31 July 2015. In this regard it was put that the medical evidence was to the effect that following the accepted injury on 31 July 2015, Mr Ward underwent an X-ray and an ultrasound on 6 August 2015. However, while the ultrasound revealed a torn rectus femoris muscle in the right thigh, the X-ray of the right hip did not show any fracture to the hip. The applicant also pointed to the absence of any record of Mr Ward complaining to his Endocrinologist on 29 September 2015 about right hip pain. The applicant stated that it was not until the end of October 2016 that, in response to reports from Mr Ward of increasing hip pain, a CT scan of his hip was undertaken and a fracture to the hip discovered.
- [14]In asserting that Mr Ward could not have sustained a hip fracture on 31 July 2015, the applicant also relied on a report prepared by Dr Ballandean, which is attachment DJC18 to the affidavit of Mr Crouch. In this report Dr Ballandean opined in the following terms:
"Knowing his history and his condition intimately, as his treating specialist –
If he had reported hip pain to her, she would almost definitely have referred him for investigation to exclude fracture of the femoral neck, one of the areas most prone to pathological fracture. An X-ray taken on the 4th of August 2016 at the time of the original muscle tear showed no fracture of the hip. Later suggested this might’ve been missed. This is not supported by the report of the CT scan performed on the 26th of October 2015, a month after his visit to Dr Roland, which showed a displaced impacted fracture of the subcapital area of the femoral neck on the right side with no union. This CT scan was done in response to a history of increasing pain in the right hip area. The radiologist reporting this reviewed the plain X-ray done on the 4th of August – two and a-half months previously, and advised that even on review, there was no fracture at the time of the original injury investigation.."
- [15]The question to be resolved on appeal is whether the hip fracture first identified radiologically at the end of October 2016, could have been caused by the incident on 31 July 2016 which led to the torn muscle of the right thigh. The applicant contended that a fracture to the right hip was not sustained at the time, while the review unit concluded differently.
- [16]I am satisfied that the medical evidence relied on by the applicant in these proceedings is sufficient to establish that the applicant has an arguable case to prosecute in the appeal proceedings.
Abortive Appeal
- [17]Alexander v Cambridge Credit Corporation Ltd[5] is authority for the proposition that an application for stay would normally be granted where there is a risk that an appeal will prove abortive if the appellant fails to secure a stay. The prospect of an abortive appeal arises because the terms of section 566 of the WCR Act which provide that if a determination is made by the industrial commission or the industrial court to the effect that a claim is not one for acceptance and the insurer has already made payments to an injured worker, "the person who received compensation is not required to refund the payment to the insurer".
- [18]It was the applicant's submission that a very significant amount of money will be lost in the event that a stay is not granted and the appeal succeeds. In his affidavit, Mr Crouch deposed that should the appeal be heard and resolved in favour of the applicant in circumstances where a stay is not granted, the applicant will suffer irremediable prejudice and the benefit of any appeal will be defeated.
Balance of Convenience and Fairness to All
- [19]The question to be answered is whether the balance of convenience favours the granting of a stay of the review unit's decision until the appeal is heard by the Commission. It was the respondent's position that this question should be viewed within a legislative prism wherein workers’ compensation legislation has long been held to be beneficial legislation, and should be construed beneficially to the interests of Mr Ward.
- [20]The respondent submitted that it was important in weighing the balance of convenience to consider the position of the claimant, Mr Ward, who has suffered a serious and painful injury, and the impact that the delay in the finalisation of his claim has had on him both financially and in terms of his health. Mr Ward's access to compensation has been delayed, in the first instance because of the self-insurer’s rejection of his claim, and subsequently by the applicant’s refusal to comply with its obligations as a self-insurer.
- [21]The respondent also drew attention to the fact that while Mr Ward had been certified as fit to return to normal duties on 10 February 2016, Exhibit DJC17 to the Affidavit of Mr Crouch disclosed that Mr Ward has not returned to work in any paid capacity since his original injury. Consequently the extent of financial detriment was very significant.
- [22]The applicant however submitted that, for Mr Ward, there was no appreciable risk that he would lose anything if a stay is granted and if the appeal is ultimately unsuccessful. His position was then to be contrasted with that of his employer who would be exposed to significant financial losses and a nugatory appeal should a stay not be granted, and the appeal ultimately succeed.
Conclusion
- [23]The competing considerations to be reconciled include, on the one hand, the impact on Mr Ward's financial circumstances of the grant of a stay and delays in the resolution of his workers' compensation claim and, on the other hand, the interests of his employer in exercising its right to appeal in circumstances where if a stay is not granted its appeal is likely to be rendered nugatory.
- [24]In terms of future delays, it is relevant that the appeal will be heard in early February 2017 and it is expected that a decision will issue in late March or early April 2017. While I am conscious of the impact of delays in the resolution of the appeal on Mr Ward's circumstances, if he succeeds in the appeal, his financial position is likely to be restored before the end of April 2017. On the other hand, if a stay is not granted there is a risk the appeal will be aborted, or if the appeal proceeds and the employer succeeds, the appeal will not serve any purpose as the employer is unable to recover its entitlements ($62,000).
- [25]I am satisfied that the applicant has an arguable case on appeal. I am also satisfied that the applicant will suffer a significant financial detriment in the event that it were to succeed with its appeal but fail to secure a stay of the review unit decision. I accept that without a stay, it could be anticipated that the employer would give serious consideration to aborting its appeal, or that a successful appeal would be rendered nugatory.
- [26]Upon consideration of the all the relevant facts and circumstances, and after reviewing the principles enunciated in Alexander, I am satisfied that a stay should be granted.
Orders
- [27]In light of the above reasons, I make the following orders:
- (i)That the decision of the regulator dated 2 September 2016 in the matter of Raymond Ward be stayed until the appeal so initiated is disposed of or until the Commission otherwise orders;
- (ii)There be no order as to costs.
Footnotes
[1] Toll North Pty Ltd AND Q-COMP & Anor (B2013/32).
[2] JBS Australia Pty Limited v Workers' Compensation Regulator [2016] QIRC 138.
[3] Brisbane City Council v Gillow and Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 124.
[4] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685.
[5] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685.