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Scofield v Workers' Compensation Regulator[2017] QIRC 94

Scofield v Workers' Compensation Regulator[2017] QIRC 94

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Scofield v Workers’ Compensation Regulator [2017] QIRC 094

PARTIES: 

Yvonne Veronica Scofield

(appellant)

v

Workers' Compensation Regulator

(respondent)

CASE NO:

WC/2016/110

PROCEEDING:

Appeal

DELIVERED ON:

18 October 2017

HEARING DATE:

SUBMISSIONS:

19 June 2017

appellant – 19 July and 9 August 2017

respondent – 3 July and 9 August 2017

HEARD AT:

MEMBER:

Brisbane

Deputy President Kaufman

ORDERS :

The appeal is to proceed as an appeal against a decision to reject an application for compensation on the basis that there was no valid and enforceable application

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION –– where WorkCover rejected the application on the basis that the appellant had not suffered a compensable injury – s 32 of the Act – where the regulator confirmed the decision of WorkCover but rejected the application on the basis that it was made out of time – s 131 of the Act – whether WorkCover had waived time – whether it is open to the regulator to consider time – jurisdictional facts.

CASES:

Workers' Compensation and Rehabilitation Act 2003 ss 32, 131, 540, 545, 549, 558.

Corporation of the City of Enfield v Developmental Assessment Commission (2000) 199 CLR 135.

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 31.

APPEARANCES:

Mr P Pollock, Harry Day Lawyers, for the appellant;

Mr S McLeod, of counsel, directly instructed by the Workers' Compensation Regulator, respondent.

Reasons for Decision

  1. [1]
    On 3 July 2015 Ms Yvonne Veronica Scofield lodged an application for workers' compensation.  On 13 January 2016 WorkCover Queensland rejected the application on the basis that Ms Scofield had not suffered a compensable injury.  Ms Scofield sought a review of that decision and, on 10 June 2016 the respondent purported to confirm the decision of WorkCover, albeit for different reasons.  Ms Scofield now appeals the decision of the regulator.
  2. [2]
    Section 540(1)(a)(vii) of the Workers' Compensation and Rehabilitation Act 2003 allows a claimant, worker or employer aggrieved by a decision of WorkCover to waive or not waive a time limit, to apply for a review of the decision. 
  3. [3]
    Section 540(1)(a)(viii) of the Act allows a claimant, worker or employer aggrieved by a decision of WorkCover to apply for a review of the decision.
  4. [4]
    WorkCover decided to reject Ms Scofield's application on the basis that she had not suffered an "injury" as that word is defined in s 32 of the Act.  Ms Scofield sought a review of that decision. On review, the regulator confirmed the decision of WorkCover, albeit on a different basis, stating that it made the decision in accordance with s 131 of the Act.
  5. [5]
    Given the apparent inconsistency between the decisions of WorkCover and the regulator I brought the matter on for mention and, subsequently, on 26 July 2017 I caused a letter to be written to the parties requesting answers to the following questions:

“What do the parties contend was the decision of WorkCover?

Was there any application for a review in relation to s 540(1)(a)(vii)?

  • Section 541 of the Act provides that a claimant, worker or an employer aggrieved by a decision or the failure to make a decision may apply for a review.
  • On or about 3 March 2016 Ms Scofield made an application for review of WorkCover's decision dated 31 January 2016 which she described as "Rejection of a claim".
  • The WorkCover decision stated that "WorkCover Queensland has decided to not accept your application as you did not sustain an 'injury' as outlined in Section 32 of the …Act".
  • On 10 June 2016 the regulator, by its officer, Natalie Jones, gave its decision whereby it stated "I have confirmed the decision of WorkCover to reject your application. I make this decision in accordance with section 131 of the [Act].
  • Section 545 deals with the regulator's powers on review and provides that the regulator must:
    • Confirm the decision (of WorkCover); or
    • Vary the decision; or
    • Set aside the decision and substitute another decision; or
    • Set aside the decision and return the matter to the decision-maker with directions the regulator considers appropriate.

Given that regulator confirmed the decision of WorkCover to reject, or as it described it to not accept, Ms Scofield's application on the basis that she had not sustained a compensable injury, was it open to the regulator to make its decision "in accordance with section 131"?

Was it open to the regulator, once it had decided to confirm the decision, to do so for reasons that did not relate to and formed no part of WorkCover's reasons? If so, what is the decision on appeal?

A decision to confirm WorkCover's decision that the application for compensation should be rejected because there was no compensable injury?

Or a decision that the application for compensation was not valid or enforceable because the provisions of s.131 had not been complied with? It is noted that the decision of the regulator was not that the claim was not valid or enforceable, rather it was expressed to be decision to reject the application.

If it was not open to the regulator, once it had decided to confirm the decision, to go beyond a mere confirmation, what follows?

Given that the subject of the review by the regulator was the decision to reject the claim because there had not been a compensable injury, is it open to the Commission to deal with that question on this appeal?

Is the Commission, on this appeal, confined to dealing only with the regulator's decision to confirm WorkCover's rejection on the basis that s.131 had not been complied with, which was a decision made on a basis different to that decided by WorkCover? If not, what should be the scope of this appeal?

Overarchingly, is it open to the Commission to consider any, and which, of the above matters, or is the Commission confined to dealing only with the decision of the regulator to reject the application for compensation on the basis that the requirements of s.131 have not been satisfied?”

  1. [6]
    The parties furnished written submissions in relation to my questions.

Consideration

  1. [7]
    Chapter 13, Part 2 of the Act deals with reviews of decisions by the regulator.  By s 540(1)(vii) the part applies to a decision by WorkCover to waive or not waive s 131(1) or (2).  These deal with the time limits for making workers' compensation applications.  Section 131(1) provides that an application for compensation is valid and enforceable only if it is lodged within six months after the entitlement to compensation arose.
  2. [8]
    Part 2 also applies to a decision by WorkCover to allow or reject an application for compensation.
  3. [9]
    It is clear that the decision of WorkCover was to reject Ms Scofield's application for compensation.  It made no express finding as to whether or not her application had been made within time.  It made no decision whether to waive or not waive any time limit.
  4. [10]
    Prima facie it seems to follow that the only application for a review of WorkCover's decision that could be made was an application to review the decision to reject Ms Scofield's application for compensation.  Section 541 entitles a claimant aggrieved by such a decision to apply for its review.  This is what Ms Scofield did.  WorkCover not having dealt with waiver of time limits, no review could be sought under s 540(1)(a)(vii).
  5. [11]
    On the review, s 545(1) empowers the regulator to:
    1. (a)
      confirm the decision; or
    2. (b)
      vary the decision; or
    3. (c)
      set aside the decision and substitute another decision; or
    4. (d)
      set aside the decision and return the matter to the decision-maker with the directions the regulator considers appropriate.
  6. [12]
    The relevant review officer of the regulator expressed the decision thus:

"I have confirmed the decision of WorkCover to reject your application."

The decision maker then added:

"I make this decision in accordance with section 131 of [the Act]."

  1. [13]
    It is apparent that the regulator acting under s 545(1)(a) confirmed the decision of WorkCover to reject the application. 
  2. [14]
    The regulator did not, and did not purport to, act under any other part of s 545(1).
  3. [15]
    Ms Scofield now appeals the decision of the regulator to the Commission.
  4. [16]
    Chapter 13, Part 3, deals, inter alia, with appeals to the commission against review decisions of the regulator.  Section 558 empowers the commission to:
    1. (a)
      confirm the decision; or
    2. (b)
      vary the decision; or
    3. (c)
      set aside the decision and substitute another decision; or
    4. (d)
      set aside the decision and return the matter to the regulator with the directions the commission considers appropriate.
  5. [17]
    It is apparent that the powers of the commission on appeal are relevantly identical to those of the regulator on review.
  6. [18]
    The question that is immediately raised is: what is the decision of the regulator that is the subject of the appeal?  This involves ascertaining what is the decision of WorkCover that was the subject of review.  That decision is expressed as a decision to "reject [Ms Scofield's] application."
  7. [19]
    Whether or not an application for compensation has been made within the statutory time limit requires the finding of a jurisdictional fact.  It is incumbent upon a tribunal and upon any decision maker whose powers can only be exercised under prescribed circumstances, to satisfy itself that the relevant jurisdictional facts exist. In Corporation of the City of Enfield v Developmental Assessment Commission[1] the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ described the term ‘jurisdictional fact’ in these terms:

"The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion."

[My emphasis]

  1. [20]
    WorkCover made no explicit finding that the application was within time, yet it proceeded to consider the merits of the application.
  2. [21]
    In the respondent's outline of submissions dated 3 July 2017 Mr S McLeod, counsel for the regulator, drew my attention to correspondence that had passed between the employer and WorkCover and Ms Scofield's solicitor.  It is clear that the employer had indicated that it considered that Ms Scofield had not demonstrated that she had made her application within the s 131 time limit.  That issue was squarely before WorkCover.
  3. [22]
    The decision of WorkCover did not address the issue of time.  The decision reads:

"WorkCover Queensland has decided not to accept your application as you did not sustain an 'injury' as outlined in Section 32 of the Workers' Compensation and Rehabilitation Act 2003."

Nor was there any reference to the time issue in WorkCover's reasons.

  1. [23]
    WorkCover merely decided that there was no compensable injury.  Consequent upon that decision, it rejected Ms Scofield's application for compensation.
  2. [24]
    It seems to me that there are two possibilities: WorkCover either neglected to consider the ‘time’ issue altogether, or it was satisfied that the application had been brought within time.
  3. [25]
    Given the terms of s 131(1) provide that an application for compensation is valid and enforceable only if it is lodged within six months, it is likely that, in the general course, WorkCover would consider that jurisdictional fact issue as a first step in any application.  All the more so in a case such as this where the employer had made submissions on that very issue.  Ms Scofield's solicitor, in his submissions, attached WorkCover's decision and drew my attention to the attachment at page 4, where it is stated: "WorkCover Queensland carefully considers the facts presented when making decisions to either accept or reject an application for compensation.  We must consider … whether your application has been lodged in time …"

[My emphasis]

  1. [26]
    In the circumstances, on balance, I am prepared to infer that WorkCover was satisfied that the application had been brought within time, but neglected to refer to this in its reasons.
  2. [27]
    It follows that the decision of WorkCover comprised two elements; that Ms Scofield's application had been filed within the prescribed time, and that she had not suffered a compensable injury.
  3. [28]
    In Church v Simon Blackwood (Workers' Compensation Regulator)[2] Martin J held, in dealing with an appeal from the regulator to the Commission, that the ambit of the hearing is determined by the case that was before the regulator.
  4. [29]
    The reasoning in Church has application in considering a review by the regulator of a decision of WorkCover because the function of the regulator on review is similar to that of the Commission on appeal.  In this instance, the ambit of the review by the regulator is determined by the case that was before WorkCover; whether the application for compensation was within time, and thus valid and enforceable, and if so, whether the applicant had suffered a compensable injury.
  5. [30]
    It follows that it was open to the regulator to consider for itself the question of whether the application had been made within time.
  6. [31]
    However, the regulator, in the course of its review, after finding that the application was out of time, considered the issue of waiving the time limit pursuant to s 131(5).  It decided that the time limit should not be waived and confirmed the decision to reject the application on the basis that it was not valid and enforceable.
  7. [32]
    In doing so it erred.  Section 131(5) endows WorkCover with a discretion to waive the time limit.  A claimant, worker or employer aggrieved by a decision to waive or not waive the time limit may seek a review of that decision by the regulator.  Similarly, a claimant, worker or employer aggrieved by the decision of the regulator may appeal that decision to the Commission.  Section 549(2) precludes an insurer from appealing a waiver decision.
  8. [33]
    Given that there was no waiver decision by WorkCover, it having proceeded on the basis that the application for compensation was within time, and it not having considered the issue of waiver, it was not open to the regulator to purport to deal with it.  The issue of waiver was not within the ambit of the review by the regulator.  In any event, s 131(5) empowers only the insurer to waive time (or the regulator if dealing with a review against a waiver decision), whereupon the decision of the regulator becomes the decision of the insurer.[3]
  9. [34]
    In its submissions to WorkCover the employer, albeit it addressed the issue of time, did not raise the issue of waiver.  The solicitor for the appellant, in a difficult to understand passage, almost by way of a 'throw-away line', referred to s 131(5)(c), but went no further.
  10. [35]
    Because WorkCover did not deal with the waiver issue, there was no decision in relation thereto to be reviewed by the regulator.
  11. [36]
    It follows that only that part of the regulator's decision dealing with the issue of whether the application was made within time may be the subject of an appeal to the Commission.
  12. [37]
    In the event that the Commission dismisses the appeal on the basis that the application for compensation was made outside the time limit, it seems to me that the appropriate outcome would be to remit the matter back to WorkCover to consider whether to waive time.
  13. [38]
    In the event that the Commission allows the appeal on the basis that the application for compensation was made within time, it seems to me that the appropriate outcome would be to remit the matter to the regulator to determine whether Ms Scofield had suffered a compensable injury.
  14. [39]
    The appeal will proceed as an appeal against decision to reject an application for compensation on the basis that there was no valid and enforceable application. I make no order as to costs.
  1. [40]
    The file will be returned to the registry for reallocation.

Footnotes

[1] (2000) 199 CLR 135.

[2] [2015] ICQ 31.

[3] Workers' Compensation and Rehabilitation Act 2003 s 545(5).

Close

Editorial Notes

  • Published Case Name:

    Scofield v Workers' Compensation Regulator

  • Shortened Case Name:

    Scofield v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 94

  • Court:

    QIRC

  • Judge(s):

    Kaufman DP

  • Date:

    18 Oct 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
City of Enfield v Development Assessment Commission (2000) 199 CLR 135
2 citations
Jump To
Cite 1 - (2000) 199 CLR 135
Cite 2 - (2000) 199 CLR 135

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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