Grice v Workers' Compensation Regulator
[2016] QIRC 59
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- Unreported Judgment
- Grice v Workers' Compensation Regulator[2016] QIRC 59
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Grice v Workers' Compensation Regulator[2016] QIRC 59
Grice v Workers' Compensation Regulator[2016] QIRC 59
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Grice v Workers' Compensation Regulator [2016] QIRC 059 |
PARTIES: | Grice, Lonnie Darren v Workers' Compensation Regulator |
CASE NO: | WC/2015/307 |
PROCEEDING: | Application for Extension of Time to lodge Notice of Appeal |
DELIVERED ON: | 20 May 2016 |
HEARING DATE: | 7 March 2016 14 March 2016 (Applicant's Written Submission) 8 April 2016 (Respondent's Written Submission in Reply) |
HEARD AT: | Brisbane |
MEMBER: | Vice President Linnane |
ORDERS: |
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CATCHWORDS: | Application for the Commission to extend the s 550(1)(a) time limit period – Held no power in the Commission to extend the time limitation period in s 550(1)(a) of Workers' Compensation and Rehabilitation Act 2003 – If Commission does have power then no "substantial compliance" and no "special circumstances" exist – Application dismissed. |
CASES: | Workers’ Compensation and Rehabilitation Act 2003 (Qld) Blackwood v Pearce [2015] ICQ 012 van der Berg v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 161 Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 (Qld) Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (Qld) Q-COMP v Baulch (2004) 175 QGIG 978 Hetmanska v Q-COMP (2006) 183 QGIG 917 Australia Meat Holdings Pty Ltd v Q-COMP (2007) 185 QGIG 231 Kidd v Q-COMP [2010] QMC 17 Carmody v WorkCover Queensland (1999) 157 QGIG 119 Paul Taylor v Q-COMP (2008) 188 QGIG 298 Pearce v Q-COMP (C/2010/64) - Decision |
APPEARANCES: | Mr L. Grice representing himself. Mr S. Gray, Counsel, directly instructed by the Respondent. |
Decision
- [1]This decision relates to an application by Lonnie Darren Grice (Applicant) seeking to have the Commission extend the time within which to file an Appeal Notice outside the legislative timeframe provided for in s 550(1) of the Workers' Compensation and Rehabilitation Act 2003 (Act). The Appeal Notice lodged by the Applicant was filed on 17 December 2015 and is WC/2015/307.
Preliminary Issue
- [2]Unfortunately the Decision attached to the Appeal Notice in WC/2015/307 was a decision dated 20 February 2015 of the Workers' Compensation Regulator (Regulator) in respect of a left shoulder injury. That Decision indicated that the Regulator had set aside the decision of XtraCare (self-insurer) to reject the Applicant's claim and further, it notified the Applicant that it had substituted a decision that the Applicant's left shoulder injury was one for acceptance.
- [3]Prior to the hearing of this application it was thus difficult to understand the Applicant's Appeal Notice and the current application as he had been successful in his application for a review of the self-insurer's decision. The issue was rectified upon reading the Regulator's written submissions just prior to the commencement of the hearing. Apparently the Applicant had attached the wrong decision of the Regulator when filing his Appeal Notice in WC/2015/307.
- [4]Apparently two Reasons for Decision were issued by the Regulator on 20 February 2015 and the Applicant had attached the wrong decision to his Appeal Notice in WC/2015/307. The Regulator's decision which the Applicant seeks to appeal is a decision to reject the Applicant's claim for review in respect of a left wrist injury.
- [5]At the hearing of this application the Regulator consented to allow the Applicant to amend his Appeal Notice in WC/2015/307 by substituting the correct decision of the Regulator for the decision attached to the Appeal Notice.
History of Left Wrist Claim
- [6]The Applicant lodged an application for compensation with the self-insurer on 18 September 2014 in respect of a left wrist injury which was described as "a swollen, painful left wrist" said to have occurred on Monday 3 August 2014. The Applicant also said that the injury happened over a period of time with the time period being 3 August 2014 to 3 September 2014.
- [7]The Applicant's explanation of how the injury occurred in the application for compensation is:
"Operating grader x41 21C loop. When hit the wall hand got jarred in between levers. Injured wrist. From then pain has gotten worse. Ongoing pain so I went to see doctor. Thought it was a sprain at first but due to ongoing pain went and saw doctor."
[8] This application for compensation was rejected by the self-insurer and the Regulator rejected the Applicant's application for review of this decision.
[9] In the Reasons for Decision issued on 20 February 2015, the Regulator advised the Applicant that he had a period of twenty business days to institute an appeal against this decision i.e. the Applicant had until 19 March 2015 to file an Appeal Notice in the Industrial Registry. It is clear that the Applicant was legally represented at this time and he did not institute an appeal against the decision of the Regulator in respect of the left wrist injury. Nor did the Applicant seek an extension of time from the Regulator within which to file such an Appeal Notice. This was in circumstances where he was aware of the twenty business day time limit.
[10] Instead, on 10 March 2015 the Applicant lodged a further application for compensation with the self-insurer for a left wrist injury said to be a "strain-aggravation of STT arthritis" of his left wrist. This injury was said to have been sustained at 1.00pm on 13 September 2014.
[11] The explanation of how this injury occurred was stated in the application for compensation as:
"Driving water truck at 19C open store, facing sideways, truck kept missing gears and I kept lurching forward. Put left arm out to brace myself on dash as truck lurched. Felt pain in wrist and shoulder."
[12] The Regulator submits that this history indicates that the Applicant made a conscious decision not to lodge an Appeal Notice against the Regulator's decision of 20 February 2014 and instead decided to follow a different course. On 4 June 2015, the self-insurer rejected the Applicant's claim for compensation in respect of the injury said to have occurred on 13 September 2014 and the Applicant sought a review by the Regulator of this decision of the self-insurer.
[13] In its Reasons for Decision dated 26 August 2015, the Regulator confirmed the decision of the self-insurer and determined that the Applicant's application for compensation be rejected. The Applicant subsequently filed an Appeal Notice in the Industrial Registry against this decision of the Regulator i.e. WC/2015/257. In his Appeal Notice the Applicant's nominated his grounds of appeal as:
"I have sustained a work injury in July/August 2014 which has been rejected. I have also sustained an aggravation to the pre-existing injury (July/August 2014) in September 2014. I feel the medical evidence has been misinterpreted and dates are confusing the issue. My previous lawyers had not represented my case to the full potential."
[14] Following a s 552A Conference on 15 December 2015, the Applicant filed a Notice of Discontinuance in WC/2015/257.
[15] The Applicant then filed an Appeal Notice in the Industrial Registry on 17 December 2015 against the decision of the Regulator dated 20 February 2015. The grounds of that Appeal Notice (which bear a close resemblance to the grounds of appeal in WC/2015/257) are:
"I have sustained a work injury in July/August 2014 which has been rejected. I feel the medical evidence has been misinterpreted and dates are confusing the issue. My previous lawyers have not represented my case in the full potential. "
[16] The Regulator wrote to the Applicant in correspondence dated 8 January 2016 advising him as follows:
- that the Regulator was of the view that he had not demonstrated "substantial compliance" with the timeframe within which to lodge the Appeal Notice; and
- the Appeal Notice had not identified any "special circumstances" which would warrant an extension of the legislative timeframe.
[17] On 29 January 2016 the Applicant then filed this current application seeking an extension of time. In the application the Applicant identified that he was relying upon four grounds i.e.
- that the Applicant's previous lawyers advised that it was "not suitable to continue with first wrist injury claim (Isa-14-062) and advised to include with should (sic) injury claim (Isa-14-063)";
- that the "dates were incorrectly provided by XtraCare. Incident was initially reported to relieving Supervisor Stan ENGAMN on his last shift as relieving Shift Boss. Incident was then reported to Supervisor Doug WOODWARD on his first shift back. WOODWARD states in his statement that incident was reported to him";
- that "Dr KENNEDY's comments 'No Injury' noted has been clarified in a report from him which was not used in the first wrist injury claim. Dr KENNEDY refers to 'swelling and pain in left wrist especially after handling certain controls on bulldozer and grader - left hand grip feels weaker'. I am employed with Glencore to operate these machines"; and
- that "[a]t the end of the day I, Lonnie Darren GRICE was 46 years old when injured. I have had three operations on my left wrist and as a result now have 9 screws and a plate. This has also left me with a deformed looking wrist and continual pain. All from an incident at work which has been rejected".
Commission's Power to Grant Application - Regulator's Submission
[18] In its initial written submission the Regulator raised the issue of whether the Commission had power to make the orders sought by the Applicant. In doing so the Regulator relied upon the decision in Blackwood v Pearce[1] where Martin J determined that the Commission had no discretion to extend time under s 542 of the Act. The Regulator submits that the interpretation given to s 542 by Martin J should also be extended to s 550 of the Act given that the provisions are similar.
[19] In Blackwood v Pearce[2] Martin J said:
"Construction of s 542
[38] I regret that I find that I cannot agree with the interpretation arrived at in Cloncurry.
[39] While it is correct to categorise the Act as beneficial or remedial legislation, the proper construction is not, by virtue of that unrestrained. It was said in Khoury v Government Insurance Office (NSW)23:
‘…the rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal must, as has been said, be restrained within the confines of ‘the actual language employed’ and what is ‘fairly open’ on the words used.’24
[40] There is a discretion given to the Regulator to accept an application out of time but ‘the actual language employed’ shows it is clearly confined. There must have been a request under s 542(2) and there must be special circumstances. The Regulator is given a confined power to extend the time in which an application may be made but the construction adopted in Cloncurry ignores the restrictions on that power.
[41] The issue has been confused by the consideration of whether an out of time application is invalid. The true issue is not whether an application made out of time is invalid but whether the Regulator has any power other than that set out in s 542(2) and (3). The Regulator does not.
[42] In the cases that have followed Cloncurry further glosses have been put on s 542. In addition to the unwarranted creation of a new power to extend time, that ‘power’ has been made subject to a restriction - that there must have been substantial compliance or other special cirucmstance25. There is no legislative basis for either accretion.
[43] It follows, then, that the Regulator has no power to extend time except in accordance with s 542.26
[44] The Commissioner did not err in following the earlier decisions of the Industrial Court - he was bound to do so. Nevertheless, the interpretation which he followed was wrong and, so, the appeal must be allowed and his decision set aside."
[20] The Regulator further relied upon the decision of O'Connor DP in van der Berg v Simon Blackwood (Workers' Compensation Regulator)[3] when considering the provision of s 550 of the Act following the decision of Martin J in Blackwood v Pearce[4]. O'Connor DP stated that:
"[22] Over time, the interpretation of s 550 of the Act has been infected with the same reasoning as was used in s 542 of the Act. The right under s 550(1)(a) of the Act is confined by reference to a time limit in which to appeal. Section 550 of the Act does not confer a discretion on the Commission to waive compliance. Section 550(3) makes that abundantly clear where it provides 'the appellant may, within the periods mentioned in subsections, ask the respondent to allow further time to appeal'.
[23] Like s 542(3) of the Act, it is the regulator who is vested with the discretion to waive time and not the Commission. In my view, nothing within s 550 grants the Commission the power to waive the time limit. It is the 'Respondent' - the Workers' Compensation Regulator that is vested with the power to waive compliance and, only in circumstances where the appellant has asked for an extension within the statutory time limit.
[24] For the reasons advanced above, I am of the opinion that there is no power vested in the Commission to wave compliance with the time limit contained in s 550(1)(a) of the Act in circumstances where there has been substantial compliance or other special circumstances. There is no legislative basis for such an interpretation.
[25] Notwithstanding my conclusion, I nevertheless feel constrained to follow the decision of Hall P in Steven Pearce v Q-Comp."
[21] Following the decision of Martin J in Blackwood v Pearce[5], the provisions of s 542 and s 550 of the Act have been amended by the Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2015. In respect of s 542 of the Act, the Explanatory Notes explained the reasons for the amendments as:
"Clause 28 amends section 542 of the Act to clarify that the Workers' Compensation Regulator has discretion to grant extensions of time to lodge review applications if the applicant can satisfy the Workers' Compensation Regulator that special circumstances exist. This amendment is a consequence of the decision of the Industrial Court in the matter of Blackwood v Pearce. It also provides that the applicant can only ask the Workers' Compensation Regulator once to allow further time to apply for review."
[22] In contrast, the Explanatory Note's reasons for amending s 550 of the Act are given as:
"Clause 29 amends section 550 of the Act to allow a respondent the right to allow further time for the appellant to appeal on consent of the parties. This is consistent with the amendments made in relation to review applications under clause 28."
[23] The Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2015 was assented to on 24 September 2015. The Applicant's application was filed in the Industrial Registry on 17 December 2015. Section 550(3) of the Act now provides as follows:
"(3) However, the appellant may ask the respondent to allow further time to appeal.”
Merits of the Applicant's Application - Regulator's Submission
[24] The Regulator also dealt with the issues of "substantial compliance" or "special circumstances" in s 550 of the Act in its original submission.
[25] On the issue of "substantial compliance" the Commission was referred by the Regulator to the decisions of Q-COMP v Baulch[6], Hetmanska v Q-COMP[7], Australia Meat Holdings Pty Ltd v Q-COMP[8] at p. 232 and Kidd v Q-COMP[9] to show that there was no substantial compliance by the Applicant. The Regulator submits that there was a conscious decision on the part of the Applicant not to file an appeal and instead to pursue his claim via the second application for compensation.
[26] The Regulator thus submits that there has been no substantial compliance by the Applicant and his application should be dismissed.
[27] On the issue of "special circumstances" the Regulator makes the following submissions:
- Extent of the delay: The Appeal Notice was filed approximately nine months out of time. On any view, the Regulator submits that the delay in this matter is substantial and would militate against the exercise of any discretion (if there is one) on the part of the Commission. In support of its submission the Regulator referred the Commission to the decisions in Carmody v WorkCover Queensland[10], Paul Taylor v Q-COMP[11] and Kidd v Q-COMP[12].
- Explanation for the delay: The Regulator submits that the Applicant at all times understood his applications and his rights of appeal. He was being legally represented at the time when any appeal should have been filed. The Applicant chose not to lodge an appeal and instead pursued his second application in respect of a left wrist injury. When that was unsuccessful he then filed an appeal against the Regulator's decision. This Appeal Notice was filed on 24 September 2015. The Applicant did not, at this time, file any Appeal Notice against the Regulator's decision of 20 February 2015.
The Applicant is also relying upon the medical report of Dr Paul Kennedy, his general medical practitioner, dated 25 February 2015. This report was available to the Applicant prior to any decision being made not to appeal the Regulator's decision of 20 February 2015.
The Applicant further claims that he has required three operations and has been left with a deformed looking wrist and continual pain from an "incident at work which has been rejected". The Regulator submits that this is not supported by Dr Kennedy's medical report. In particular the Commission was referred to the following comments:
"Yes, I believe it is likely that Lonnie had pre-existing joint damage prior to the alleged date of injury on 3rd July 2014. This is likely given his age, career doing heavy manual work and the fact, as he stated, he had been a rodeo rider for several year [sic] in his youth and had sustained a fractured left clavicle about 15 years beforehand in that sport. Radiological report on 9th September 2014 did report calcification proximal to the trapezium with erosive changes also on the trapezium bone. This suggests healing ligament and joint damage of some indeterminate age but quite possibly of around 8 weeks duration or so. I believe it is reasonable to argue that his work activity did cause an exacerbation of pre-existing carpal joint damage and so this is still a diagnosis consistent with the alleged events at work on 3rd July 2014."
The Regulator submits that a reasonable inference can be drawn from Dr Kennedy's report that work activity has only exacerbated the Applicant's pre-existing carpal joint damage and the need for surgery is because of the pre-existing condition and not because of anything that occurred in the claimed work event.
Additionally, it is noted that Dr Kennedy's report refers to an event that is said to have occurred on 3 July 2014 whereas the Applicant's claim for compensation refers to events occurring from August 2014 or at the earliest on 19 July 2014 given the Applicant's Statutory Declaration dated 8 December 2014. Whilst the Applicant has referred to "confusion" about dates he has not provided any evidence to clarify this confusion.
The Regulator submits that there is no satisfactory explanation for the delay in the Applicant filing his Appeal Notice.
- Prejudice to the Respondent: Whilst the Regulator submits that it is unable to identify any prejudice that it may suffer it does note that the legislature has stipulated a time period within which to file an appeal. The Regulator submits that to allow a right to appeal after such a lengthy delay (20 February 2015 to 17 December 2015) is to the detriment of the non-party to the appeal.
- Prejudice to the Applicant: Other than the obvious loss of his ability to appeal the review decision, the Applicant has not identified any prejudice.
- Enthusiasm for prosecuting the appeal: The Regulator referred the Commission to the decision of Magistrate Lee in Kidd v Q-COMP[13] in which he said at paragraph [56]:
"In view of my comments throughout these reasons, I conclude that the applicant's enthusiasm for prosecuting his appeal was far from satisfactory. First, he decided not to appeal after he received Q-COMP's decision. He did nothing until he fortuitously met Mr Lord who acted for him on a speculative basis. He did not even telephone Q-COMP on the phone number provided to seek advice about his options. Armed with the full knowledge of the 20 day appeal period, the applicant let things drift away until 14 December 2009 when the Notice of Appeal was lodged. He then instructed his solicitors to lodge the appeal at that point even though he had not been assessed by Dr Todman then. He could have and should have done this much earlier and could have filed it within the 20 days if he was serious about it: see also similar comments in Taylor v Q-COMP [2008] QIRComm 128 (22 July 2008) at page 4 of 5 per Commissioner Fischer [sic]."
The Regulator submits that the Applicant let the appeal period drift away and only demonstrated enthusiasm for prosecuting his appeal after he withdrew his appeal in WC/2015/257.
- Merits of the Appeal: The Regulator referred the Commission to the following in the decision of Hall P in Pearce v Q-COMP[14] at [4]:
"[4] …The apparent strength of a potential appellant's underlying case is not necessarily decisive of the question whether non-compliance with the time limit should be waived or excused. However, that consideration is of no moment here. The Commission was satisfied that the underlying case was weak. It would be wrong to go behind the Legislature's assessment that justice will best be served if a time limit of 20 business days is observed, is insisted upon and to hear a case, which in all likelihood, will fail."
The Regulator submits that the Commission could not be satisfied that the prospects of the Applicant's Appeal Notice is anything other than highly speculative.
Applicant's Submission
[28] The Applicant provided his written submission in response to the Regulator's written submission on 14 March 2016. The Applicant did not address the Regulator's submission on the power of the Commission to grant the relief sought in the Applicant's application to extend time. At the hearing on 7 March 2016 I did raise with the Applicant the necessity to address this submission.
[29] In his written submission the Applicant attached certain documents and indicated that such documents were essential to the issues to be determined in this application. I will deal with each of those documents:
- Attachment 1 - This is the application to the self-insurer dated 18 September 2014 and received on the same date. The document indicates that the nature of the injury was "swollen painful left wrist", it was said to have occurred on Monday 3 August 2014 at the 21C Truck Loop, Underground x41 at Mount Isa. The description of how the injury occurred is as outlined in [7] of this decision.
- Attachment 2 - Consultation notes of Dr Kennedy on 3 September 2014 which provided as follows:
"1 month L wrist pain - swelling as each shift progresses
pain extends proximally sometimes to shoulder
grip weaker
no injury noted - no PHx fracture
no gout, u/g brader (sic) operator MICO last 4 yrs - some older machines require considerable effort, jarring both wrists
History:
Musculo-skeletal:
Left wrist pain. No injury.
Examination:
Musculo-skeletal:
Affected joint
- Left wrist Swollen. Tender. No deformity. Movement restricted.
Actions:
Occupational history updated.
Drixine Adult 0.05% Nasal Spray ceased.
Tinidazole 500 mg Tablet ceased.
Prescription printed: Somoc 40mg Tablet 1 Daily
Imaging request printed: Plain X-ray - Wrist, Left (scaphold views). (4 weeks painful L wrist - no injury noted. "
- Attachment 3 - Medical Report of Dr Paul Kennedy dated 25 February 2015 having seen the Applicant on 9 September 2014. In that report Dr Kennedy states that when he saw the Applicant on 9 September 2014 the Applicant stated that his condition had been present for about the last month. He was however "unable to relate any specific injury or time of injury preceding the onset of his symptoms". Further, Dr Kennedy stated that "Lonnie's somewhat vague recollection of the history of his symptoms does make it difficult to be confident about the left wrist problem arising from a specific "injury". The best I can state is that it is possible for an injury occurring on 3rd July 2014 to have led to the left carpal ligamentous damage later detected". Dr Kennedy further stated that "It is possible that an incident at work sometime prior to 11th July 2014 could have caused an injury of this nature to the left wrist and so referable to his work".
Dr Kennedy further stated that he wrote "no injury" on the WorkCover medical certificate dated 9 September 2014 as he was unable to identify any specific incident or injury at the time which would give rise to the problem being experienced by the Applicant. Dr Kennedy further stated that it was the frequent daily heavy impact with control leavers used in operating his machines which was the likely cause of his presenting symptoms.
Dr Kennedy then went on to make the comments attributable to him in [29] of this decision.
The confusion over dates arises from the Applicant himself. When he attends on Dr Kennedy on 9 September 2014 the Applicant was "unable to relate any specific injury or time of injury preceding the onset of symptoms" and that "he had a vague recollection of the history of his symptoms". When the Applicant lodges his claim for workers' compensation with the self-insurer he notes the date of injury as 3 August 2014. When confronted with his rosters the Applicant lodges a Statutory Declaration seeking to amend this date to 19 July 2014. A recollection of events done closer to the event is generally more preferable than subsequent recollections. The Applicant has not given any reason why a subsequent recollection should be preferred to an earlier recollection.
- Attachment 4 - a Statutory Declaration by the Applicant on 8 December 2014. In that Statutory Declaration the Applicant seeks to amend his statement of 24 September 2014 where he stated that the injury occurred on 3 August 2014. This occurred after the Applicant was shown his roster for the period and he stated that he then knew that the injury occurred on 19 July 2014.
- Attachment 5 - a redacted copy of clinical notes of Dr John Warren of 27 March 2014, 14 April 2014, 28 May 2014 and 21 August 2014. The Applicant relies upon the notes of 21 August 2015 where Dr Warren states: "Needs somac analgesics also other probs Pain last 1/12 L base thumb tender sheath L EP: tendon De Quervains tenosynovitis also developed Umbilical hernia bloated upper abdomen some tenderness over entire epigastrium". The action identified by Dr Warren on that date was diagnostic imaging of the upper abdomen - bloated tender epigastrium".
- Attachment 6 - a redacted e-mail of 9 March 2015, I assume from the Applicant's then Solicitor, to an unknown person which states:
"Fantastic. Could you please CC me in on the email as previously discussed.
Please also advise Lonnie that if the Insurer contacts him for a telephone statement, he can provide one but should also tell them that they can contact me in regard to the specifics of why he is putting in a second claim for the wrist injury."
- Attachment 7 - two e-mails dated 19 September 2014. The first appears to be an internal e-mail at Mount Isa - Copper regarding "Lonnie Grice ISA-14-062 Claim for Compensation - left wrist". It says that it contains the Applicant's account of how his left wrist injury of 3 August 2014 occurred i.e.
"Operating Grader x41 21C Loop, when hit the wall, hand got jarred in between levers, injured wrist. From then pain had gotten worse, ongoing pain, so I went to see Doctor. Thought it was a sprain at first but due to ongoing pain went and saw Doctor."
That description then continues in the following manner: "Walking home after night shift - I tripped on some concrete sticking up from the path just above the acid plant entry. I believe I did not notice the obstacle because it was hidden by shadows from the overhead pipeline running across the road."
The second e-mail is a response to the above e-mail from Gary Ferguson, the X41 Production & Road Maintenance Superintendent, MICO. Mr Ferguson questions both injuries claimed by the Applicant. He states that he has no knowledge of any tripping over some concrete on the way home.
The additional reference to the tripping incident was clearly an error in reporting and there is no evidence that that aspect of the e-mail has been taken any further in the compensation claim process.
- Attachment 8 - a redacted clinical note of Dr Warren on 1 October 2014 as follows: "also 2/52 ago injured L shoulder in water truck at work thrown to L side felt L shoulder 'pop' decreased ROM in abduction painful arc tender AC jt tender over biceps insertion + supraspinatus - has seen workplace medicos who suggest pain in shoulder is secondary to wrist pain!! Needs to see RB re wrist + shoulder - having problems accessing compensation". The fact that the Applicant conveys to his general medical practitioner what he understands his workplace medicos' opinions is not evidence of the fact. The evidence would need to come from those unknown "workplace medicos".
- Attachment 9 - the Reasons for Decision of the Regulator dated 20 February 2015.
[30] In his submission the Applicant states that any confusion about dates is clear given Dr Kennedy's report of 25 February 2015 and his Statutory Declaration of 8 December 2014 i.e. the injury occurred in July 2014 and possibly on 19 July 2014.
[31] The Applicant further relies upon the clinical notes of Dr Warren on 21 August 2014 to submit that "De Quervains tenosynovitis is a painful condition affecting tendons on the thumb side of your wrist. Any activity that relies on repetitive hand or wrist movement can make it worse. Continual handling of controls on grader is repetitive". There is however no claim for compensation by the Applicant for De Quervains tenosynovitis.
[32] Finally the Applicant states in his written submission that the enthusiasm for prosecuting the appeal in WC/2015/307 "is to have Glencore made accountable for Mr Grice's injuries sustained". Glencore was the Applicant's employer at the time of making the compensation application to the self-insurer.
Regulator's Written Submission in Response
[33] In its written submission in response to the Applicant's submission the Regulator makes the following submission:
- that the Applicant failed to address the issue of the Commission's power to make the orders sought in the application despite it being drawn to the Applicant's attention in both the original written submissions of the Regulator and during the hearing on 7 March 2016;
- that insofar as the Applicant argued that Attachment 6 supported his submission and the inference he sought the Commission to gain from the Attachment (i.e. that the advice was not correct), the e-mail actually demonstrates that the Applicant was advised that he could provide a telephone statement to the insurer if it was required or he could notify the self-insurer to contact his solicitor "in regard to the specifics of why he is putting in a second claim for the wrist injury";
- otherwise, the Applicant's submission does not address the factors that the Commission is required to take into account in respect to the application;
- the Applicant did confirm that the reason that he did not lodge an Appeal Notice was because his intention was to claim the wrist injury to be a consequence of the accepted shoulder injury; and
- at the hearing on 7 March 2016:
- (a)the Applicant admitted that he was already suffering from symptoms with his left wrist prior to the shoulder injury that he had sustained;
- (b)the Applicant stated that the injury to his left wrist occurred well before the injury to the shoulder;
- (c)the Applicant said that he well understood that the injury to his left wrist occurred independently of the shoulder injury and that he accepted that the left wrist injury may have been exacerbated or aggravated by the event that occurred in September 2014;
These statements made on 7 March 2016 indicate that the Applicant was aware that the left wrist injury had arisen prior to the event which resulted in an accepted claim for his left shoulder injury. Yet the Applicant chose not to appeal the Regulator's decision on the left wrist injury instead deciding to add that injury to the left shoulder injury when he well understood that the injury to his left wrist had been sustained prior to that event.
[34] In circumstances where the Applicant has made a conscious decision not to appeal a decision of the Regulator and has not demonstrated that any extension of time should be given to institute the appeal, then the appropriate decision is to reject the application with costs.
Conclusion
[35] In respect of the power of the Commission to grant the application, the legislature has clearly indicated that the provisions of the Act should be interpreted in according with the decision of Martin J in Blackwood v Pearce[15]. The Regulator submits that the appropriate finding should be that the Commission does not have power to determine the out of time application to extend time. The Regulator submits that it is for the Regulator to determine the issue, and, in this case, the Regulator has not agreed to grant an extension of time.
[36] I endorse the reasoning of O'Connor DP in van der Berg v Simon Blackwood (Workers' Compensation Regulator[16]. Given that the legislation has now considered s 550(3) of the Act in light of the decision of Martin P in Blackwood v Pearce[17] and the decision of Hall P in Steven Pearce v Q-COMP[18], I do not feel constrained, as O'Connor DP was, by the decision of Hall P in Steven Pearce v Q-COMP[19].
[37] The Legislature has clearly had the opportunity to review the legislation in light of the decision of Martin J in Blackwood v Pearce[20] and the earlier decision of Hall P in Steven Pearce v Q-Comp[21]. The Legislature has amended s 550(3) of the Act to provide that the Respondent to an appeal can allow further time to appeal with the consent of the parties. The Legislature has indicated in the Explanatory Notes that the amendment to s 550(3) of the Act is consistent with the amendments made in relation to review applications under s 542 of the Act.
[38] In those circumstances I am of the opinion that there is no power vested in the Queensland Industrial Relations Commission to waive compliance with the time limit contained in s 550(1)(a) of the Act even in circumstances where there has been "substantial compliance or other special circumstances". It is for the Regulator to consent or otherwise following a request to extend time from an appellant seeking to appeal a decision of the Regulator. In this instance the Regulator has not agreed to grant the Applicant an extension of time. The Applicant's application must therefore be dismissed on the basis that the Commission has no power to grant the application.
[39] I intend however to also deal with the merits of the Applicant's application. The Applicant made a decision, albeit with the assistance of his legal representative, shortly after receiving the Regulator's decision of 20 February 2015. At that time the Applicant was well aware of the twenty business day time limitation period. The decision he made was not to appeal that decision. Instead he chose to follow a different course of conduct i.e. to include the injury to his left wrist with an injury to his left shoulder. At the time of making this choice the Applicant knew that his left wrist injury occurred prior to the injury to his left shoulder.
[40] In providing his written submission, the Applicant had the benefit of an extensive written submission from the Regulator. That submission dealt with those issues that previously were relevant to an exercise of discretion by the Commission to extend the time limitation period under s 550(1)(a) of the Act i.e. "substantial compliance" and/or "special circumstance" (i.e. the extent of the delay, the explanation for the delay, prejudice to both the Regulator and the Applicant and the enthusiasm for prosecuting the appeal".
[41] The Applicant's submission fails to adequately address any of these issues. Essentially the reason for the delay is that he chose to follow a different course of action. On the issue of his enthusiasm for prosecuting the appeal, the Applicant stated that it was "to have Glencore made accountable" for the injury he sustained. In fact the Applicant has shown no enthusiasm for prosecuting this appeal. It was only when his alternate choice (i.e. including the left wrist injury with the left shoulder injury) failed that he decided to prosecute the appeal in WC/2015/307.
[42] The Applicant has failed to establish any "substantial compliance" or "special circumstances" which would warrant the Commission waiving the time limitation period even if the Commission did have power to grant the application sought by the Applicant.
[43] Whilst I have not relied upon the issue of the merits of the Applicant's application, it would also appear that the Applicant's prospects of success would not be good given the following:
- the various dates of injury to the left wrist i.e. on 9 September 2014 when the Applicant visited Dr Kennedy he was not able to advise Dr Kennedy of "any specific injury or time of injury preceding the onset of his symptoms" as all the Applicant had was a "vague recollection of the history of his symptoms", on 18 September 2014 when the Applicant lodged his application for compensation with the self-insurer it was stated that the injury occurred on 3 August 2014, when faced with his rosters for the period the date again changed to 19 July 2014 as noted in the Applicant's Statutory Declaration of 8 December 2014; and
- the medical report of Dr Kennedy wherein he states that "[i]t is possible that an incident at work sometime prior to 11 July 2014 could have caused an injury of this nature". This is the extent of the medical evidence provided by the Applicant to support his claim for compensation.
[44] In the circumstances I dismiss the application with the Regulator's costs of the application to be borne by the Applicant. Such costs are to be paid within twenty-one (21) days of the release of this decision.
Footnotes
[1] Blackwood v Pearce [2015] ICQ 012
[2] Ibid.
[3] van der Berg v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 161
[4] Blackwood v Pearce [2015] ICQ 012
[5] Ibid.
[6] Q-COMP v Baulch (2004) 175 QGIG 978
[7] Hetmanska v Q-COMP (2006) 183 QGIG 917
[8] Australia Meat Holdings Pty Ltd v Q-COMP (2007) 185 QGIG 231
[9] Kidd v Q-COMP [2010] QMC 17
[10] Carmody v WorkCover Queensland (1999) 157 QGIG 119
[11] Paul Taylor v Q-COMP (2008) 188 QGIG 298
[12] Kidd v Q-COMP [2010] QMC 17
[13] Kidd v Q-COMP [2010] QMC 17
[14] Pearce v Q-COMP (C/2010/64) - Decision
[15] Blackwood v Pearce [2015] ICQ 012
[16] van der Berg v Simon Blackwood (Workers' Compensation Regulator [2015] QIRC 161
[17] Blackwood v Pearce [2015] ICQ 012
[18] Steven Pearce v Q-COMP (C/2010/64) – Decision
[19] Ibid.
[20] Blackwood v Pearce [2015] ICQ 012
[21] Steven Pearce v Q-COMP (C/2010/64) – Decision