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  4. Wang v Workers' Compensation Regulator (No. 3) - [2023] QIRC 164

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Wang v Workers' Compensation Regulator (No. 3)[2023] QIRC 164

Wang v Workers' Compensation Regulator (No. 3)[2023] QIRC 164

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wang v Workers' Compensation Regulator (No. 3) [2023] QIRC 164

PARTIES: 

Wang, Yuehai

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2021/202

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

5 June 2023

HEARING DATES:

7 and 8 March 2023

MEMBER:

Merrell DP

HEARD AT:

Cairns

ORDERS:

  1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 2 December 2021 is confirmed.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. (a)
    the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 19 June 2023; and
  1. (b)
    unless otherwise ordered, the decision on costs be determined on the papers.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – Appellant applied for workers' compensation 20 months after the entitlement to compensation arose – WorkCover Queensland waived requirement that Appellant lodge his application for workers' compensation within six months after the entitlement to compensation arose as required by s 131(1) of the Workers' Compensation and Rehabilitation Act 2003 – Appellant did not lodge application for workers' compensation within 20 business days after the entitlement to compensation arose – WorkCover Queensland did not waive the requirement in 131(2) of the Workers' Compensation and Rehabilitation Act 2003, with the consequence that WorkCover Queensland's liability to pay compensation was limited to a period starting no earlier than 20 business days before the day on which the Appellant lodged a valid application – Appellant sought review of the decision not to waive the requirement in s 131(2) of the Workers' Compensation and Rehabilitation Act 2003 – review decision of Respondent that Appellant did not have a valid and enforceable application for workers' compensation within the meaning of s 131(1) of the Workers' Compensation and Rehabilitation Act 2003 – appeal by Appellant against review decision of Respondent – whether Appellant failed to lodge application within six months after the entitlement to compensation arose due to mistake or a reasonable cause within the meaning of s 131(6) of the Workers' Compensation and Rehabilitation Act 2003 – whether alternative claims by the Appellant that the Respondent should have waived the six month time limit in s 131(1) of the Workers' Compensation and Rehabilitation Act 2003 having regard to s 36A and s 131(5) of the Workers' Compensation and Rehabilitation Act 2003 are competent – no mistake or a reasonable cause within the meaning of s 131(6) of the Workers' Compensation and Rehabilitation Act 2003 – review decision of Respondent confirmed – parties to be heard as to costs

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011, r 41

Workers' Compensation and Rehabilitation Act 2003, s 36A, s 131, s 133, 548 and s 558

CASES:

Black v City of South Melbourne [1963] VR 34

Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461

Green v Workers' Compensation Regulator [2019] ICQ 3

Wang v Workers' Compensation Regulator [2023] QIRC 071

Wang v Workers' Compensation Regulator (No. 2) [2023] QIRC 163

PPEARANCES:

Mr Y. Wang on his own behalf.

Mr S. Sapsford of Counsel directly instructed by Ms R. Jamieson of the Respondent.

Reasons for Decision

Introduction

  1. [1]
    The relevant background to this matter is set out in paragraphs [1] to [6] of Wang v Workers' Compensation Regulator ('Wang No. 1').[1] This decision should be read with those paragraphs. Unless otherwise stated, I will use the same definitions and abbreviations in these reasons as I used in Wang No. 1.
  1. [2]
    The principal question for my determination is whether or not I should set aside the review decision of the Regulator which determined that Mr Wang did not have a valid and enforceable application for workers' compensation.
  1. [3]
    Mr Wang contends that the six-month time limit contained in s 131(1) of the Workers' Compensation and Rehabilitation Act 2003 ('the Act') should be waived because:
  • section 36A of the Act applied to his circumstances; or, in the alternative
  • section 131(5) of the Act applied to his circumstances; or, in the alternative
  • his failure to lodge his application for compensation within six months of 28 August 2019 was due to mistake or a reasonable cause within the meaning of s 131(6) of the Act.
  1. [4]
    For the reasons that follow, the six-month time limit contained in s 131(1) of the Act should not be waived in favour of Mr Wang.
  1. [5]
    The consequence is that the review decision of the Regulator, dated 2 December 2021, will be confirmed.

The Act

  1. [6]
    Section 131 of the Act provides:

131  Time for applying

  1. (1)
     An application for compensation for an injury is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation for the injury arises.
  1. (2)
     If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer’s liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.
  1. (3)
     Subsection (2) does not apply if death is, or results from, the injury.
  1. (4)
     An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist.
  1. (5)
     Also, an insurer may waive subsection (1) for a particular application if-
  1. (a)
    it is satisfied that a doctor, nurse practitioner or dentist has assessed the injury as resulting in total or partial incapacity for work; and
  1. (b)
     the claimant lodged the application within 20 business days after the first assessment under paragraph (a).
  1. (6)
     An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant’s failure to lodge the application was due to-
  1. (a)
     mistake; or
  1. (b)
     the claimant’s absence from the State; or
  1. (c)
     a reasonable cause.
  1. [7]
    Section 131 of the Act is a standard form of provision in workers' compensation legislation.[2]

The circumstances leading to the review decision

  1. [8]
    Mr Wang claims that on 28 August 2019, when he commenced walking home from his place of employment, a motor vehicle drove onto the footpath on which he was walking, ran over his left foot and knocked him down.[3] Mr Wang did not make his application for workers' compensation until 23 April 2021 which he did by submitting a Work Capacity Certificate issued by his General Practitioner, Dr Yelena Krasnova, dated 21 April 2023.[4]
  1. [9]
    Mr Wang accepts that his entitlement to compensation for injury arose on 28 August 2019.[5]
  1. [10]
    The decision of WorkCover Queensland was to waive the six month time frame for Mr Wang to lodge his application for compensation, as contained in s 131(1) of the Act, such that Mr Wang had a valid and enforceable application for compensation even though he did not lodge his application within six months after the date his entitlement to compensation arose. However, WorkCover Queensland did not waive s 131(2) of the Act, such that WorkCover Queensland's liability to pay compensation was limited to a period starting no earlier than 20 business days before the day on which Mr Wang lodged a valid application, being 23 April 2021.
  1. [11]
    Mr Wang applied for a review by the Workers' Compensation Regulator of the decision of WorkCover Queensland not to waive s 131(2) of the Act. By review decision dated 2 December 2021, the Regulator set aside the decision of WorkCover Queensland to waive the six month time frame and substituted a new decision, namely, that Mr Wang did not have a valid and enforceable application for workers' compensation ('the review decision'). Mr Wang appeals against the review decision.
  1. [12]
    Mr Wang submitted that because he did not apply for a review of the decision to waive s 131(1) of the Act, which the Regulator set aside on review, then the review decision was not made in good faith, being a reason the Commission should set aside the review decision and substitute another decision, namely, that Mr Wang had a valid and enforceable application for workers' compensation.
  1. [13]
    I cannot accept this submission.
  1. [14]
    Mr Wang's appeal to the Commission, against the review decision of the Regulator, is a hearing de novo.[6] This means that the parties are to start the case again,[7] and the ambit of such a hearing is determined by the case which was before the Regulator, determined by any specific statutory provision which impinges upon the boundaries of the issue to be determined.[8]
  1. [15]
    The Commission's jurisdiction is limited to hearing again the case that was before the Regulator. The Regulator, in considering whether the limitation on the insurer's liability to pay compensation as contained in s 131(2) of the Act should have been waived, determined that an issue that had to be decided was whether or not Mr Wang had a valid and enforceable application for workers' compensation in the first place.
  1. [16]
    That is to say, the Regulator determined that before it could give consideration to whether or not the limitation in s 131(2) of the Act should have been waived, it had to be satisfied that Mr Wang had a valid application for workers' compensation that was capable of being one to which s 131(2) of the Act could apply. The Regulator determined that question adversely to Mr Wang. As the Regulator submitted, correctly in my view, the decision the subject of Mr Wang's appeal is whether or not his application for workers' compensation is valid and enforceable.[9]
  1. [17]
    For these reasons, I am of the view that I do not have jurisdiction to determine the claim made by Mr Wang that the decision of the Regulator was not made in good faith. The Commission does not have jurisdiction to conduct a judicial review of the decision of the Regulator to determine if it was affected by an error of law as seems to be suggested by Mr Wang.
  1. [18]
    The Commission's jurisdiction is limited, by way of a hearing de novo, to making an order of the kind contained in s 558(1) of the Act about a review decision of the kind described in s 548(1)(a) of the Act.
  1. [19]
    In the present circumstances, by virtue of Mr Wang's appeal against the review decision, the case that I am hearing again is the review decision of the Regulator, namely whether or not Mr Wang has a valid and enforceable application for workers' compensation.

Mr Wang's claim regarding s 36A of the Act

  1. [20]
    Section 36A of the Act provides:

36A  Date of injury

  1. (1)
     This section applies if a person-
  1. (a)
     is diagnosed by a doctor after the commencement of this section as having a latent onset injury; and
  1. (b)
     applies for compensation for the latent onset injury.
  1. (2)
     The following questions are to be decided under the relevant compensation Act as in force when the injury was sustained-
  1. (a)
     whether the person was a worker under the Act when the injury was sustained;
  1. (b)
     whether the injury was an injury under the Act when it was sustained.

(2A)  However, subsection (2)(b) does not apply if the latent onset injury is a specified disease and section 36D applies to the person.

  1. (3)
     Section 131 applies to the application for compensation as if the entitlement to compensation arose on the day of the doctor’s diagnosis.
  1. (4)
     Subject to subsections (2) and (3), this Act applies in relation to the person’s claim as if the date on which the injury was sustained is the date of the doctor’s diagnosis.
  1. (5)
     To remove any doubt, it is declared that nothing in subsection (4) limits section 236.
  1. (6)
     Subsections (2) to (4) have effect despite section 603.
  1. (7)
     In this section-

relevant compensation Act means this Act or a former Act.

  1. [21]
    The Dictionary to the Act (Schedule 6) defines the phrase 'latent onset injury' to mean

'… an insidious disease.'

  1. [22]
    In his written submissions, Mr Wang submitted that in December 2020, Dr Robert Pozzi, Orthopaedic Surgeon, diagnosed that Mr Wang required surgery to his left foot, that Dr Pozzi performed surgery to his left foot on 18 March 2021 and again on 7 July 2022, and that Dr Pozzi's opinion is that Mr Wang's '… injury still not fully stable and stationary.'[10]
  1. [23]
    This submission is misconceived.
  1. [24]
    The Regulator, in the review decision, was never called upon to make a decision about the application of s 36A of the Act. In hearing Mr Wang's appeal against the review decision by way of a hearing de novo, I cannot hear and determine a claim that was not before the Regulator.
  1. [25]
    There is no merit to this aspect of Mr Wang's appeal.

Mr Wang's claim regarding s 131(5) of the Act

  1. [26]
    Mr Wang contends that my discretion to waive the six month time limit in s 131(1) of the Act is enlivened by virtue of s 131(5) of the Act.
  1. [27]
    Section 131(5) of the Act is set out earlier in these reasons.
  1. [28]
    As best as I can make out, Mr Wang contends that a Work Capacity Certificate issued by his General Practitioner, Dr Krasnova, dated 21 April 2021, proved that Dr Krasnova had assessed his injury as resulting in his total or partial incapacity for work and, because he lodged his application for compensation within 20 business days of that date, namely, on 23 April 2021, the circumstances of s 131(5) of the Act are met and, as such, I should waive the six month time limit contained in s 131(1) of the Act.[11]
  1. [29]
    Mr Wang, also seems to contend that the assessments made by Dr Pozzi about his incapacity after the operations conducted by Dr Pozzi on Mr Wang's left foot in March 2021 and in July 2022 also enliven s 131(5) of the Act.[12]
  1. [30]
    These contentions are misconceived for a number of reasons.
  1. [31]
    First, as the Regulator submitted,[13] the review decision of the Regulator, the subject of Mr Wang's appeal, concerned the question of whether or not the six month time limit contained in s 131(1) of the Act should be waived by virtue of the application of s 131(6)(a) or (c) of the Act; and that the Regulator, in making its review decision, did not consider the application of s 131(5) of the Act, such that the Commission has no jurisdiction to determine whether or not s 131(5) of the Act could have any application to Mr Wang circumstances.
  1. [32]
    I accept this submission of the Regulator. Having regard to the decision of the Industrial Court of Queensland in Church v (Simon Blackwood) Workers' Compensation Regulator,[14] the jurisdiction I have is to determine, by way of a hearing de novo, the case that was before the Regulator. That case concerned whether or not Mr Wang had a valid and enforceable application for workers' compensation on the basis that the six month time limit contained in s 131(1) of the Act should or should not have been waived by virtue of the application of s 131(6)(a) or (c) of the Act.
  1. [33]
    In any event, in respect of this issue, I note that in his further amended statement of facts and contentions filed on 28 February 2023, Mr Wang contended that on 29 August 2019, a Dr Rebekah Moore of the Cairns Hospital, where Mr Wang was taken after the vehicle struck him on 28 August 2019, issued a 'Medical Certificate for CTP insurance claims.'[15] That medical certificate was not tendered by Mr Wang. Exhibit 3 is an email Mr Wang sent to his employer on 29 August 2019 in which he advised his employer that he had no major injuries and that he could start back at work on the following Monday.
  1. [34]
    Mr Wang then contends that he then had no medical treatment in respect of his injuries until 3 February 2020 when he consulted Dr Pozzi[16] and that on 18 March 2021, he had '… left foot Lisfranc fusion surgery'.[17] Dr Pozzi confirmed that he conducted that surgery on Mr Wang's left foot on that date.[18] Mr Wang then contends the '… surgery hugely changed the Appellant's working and life living circumstances.'[19] On these statements of fact by Mr Wang and the other evidence to which I have referred, which were not disputed by the Regulator, a reasonable inference to draw is that any incapacity Mr Wang suffered in April 2021 was as a result of his recovery from the left foot surgery and not as a direct result of any injury he suffered on 28 August 2019.
  1. [35]
    In those circumstances, it is unlikely that s 131(5) of the Act could have any application to Mr Wang's circumstances as a result of the Work Capacity Certificate issued by Dr Krasnova dated 21 April 2021. Further, as I stated in Wang v Workers' Compensation Regulator (No. 2),[20] the Work Capacity Certificate issued by Dr Krasnova dated 21 April 2021 was not tendered into evidence. This was because I upheld an objection made by the Regulator to the tender of that document because Mr Wang attempted to tender that document in his final submissions in the absence of Mr Wang calling Dr Krasnova to give evidence.
  1. [36]
    For these reasons, there is no merit to this aspect of Mr Wang's appeal.

Mr Wang's claim regarding s 131(6)(a) and (c) of the Act

  1. [37]
    Mr Wang contends that the Commission's discretion to waive the six month time limit in s 131(1) of the Act is enlivened because he failed to lodge his application for workers' compensation within six months of 28 August 2019 due to mistake within the meaning of s 131(6)(a) of the Act or a reasonable cause within the meaning of s 131(6)(c) of the Act.
  1. [38]
    Mr Wang, in respect of the submissions he made to the Commission, contends that his failure to lodge his application for workers' compensation was due to mistake or a reasonable cause for a wide variety of reasons.
  1. [39]
    Having regard to that material, a recitation of those reasons are:
  • the doctors at the Cairns Hospital, where he was admitted on 28 August 2019 after he was struck by the vehicle, mistakenly did not determine his injury was one under the Act and did not issue him a Work Capacity Certificate;[21]
  • his General Practitioner, whom he consulted on 2 September 2019, mistakenly did not determine his injury was one under the Act and did not issue him a Work Capacity Certificate;[22]
  • Dr Pozzi, whom he consulted on 3 February 2020 and who performed (left) foot surgery on him on 18 March 2021, mistakenly did not determine his injury was one under the Act and did not issue him a Work Capacity Certificate on 3 February 2020 or on 18 March 2021;[23]
  • his employer, Juicy Love Pty Ltd, did not report his injury to WorkCover Queensland after he informed it of his injury by way of email and WhatsApp; and then his employer dismissed him on 2 March 2020;[24]
  • the lawyers he consulted soon after sustaining his injury, Maurice Blackburn Lawyers, between 29 August 2019 and December 2020, did not provide him with correct advice about workers' compensation;[25]
  • other lawyers he consulted, Magoffin Law, originally agreed to provide him with help in relation to his claim for worker's compensation but did not provide him with help, rather they tried to misguide him;[26]
  • he did not realise the seriousness of his injury until he was assessed and operated upon by Dr Pozzi in March 2021;[27]
  • because of his injuries, he was not in the mental state to be able to lodge his application for workers' compensation within the prescribed time frame;[28]
  • because he had been (allegedly) the victim of domestic violence, that had a causal connection with his inability to lodge his application for workers' compensation within the prescribed time frame;[29] and
  • until April 2021, he did not know how to get a Work Capacity Certificate and did not know how to make a WorkCover claim.[30]
  1. [40]
    The following propositions about s 131(6)(a) and (c) of the Act are well established.

Mistake

  1. [41]
    A mistake may be one of fact or law.[31] Mere ignorance of the law is not a mistake of law.[32] If a person was under a mistake of the kind contemplated by the provision, the mistake must occasion the failure to do the act required by the statute.[33]

A reasonable cause

  1. [42]
    A reasonable cause is a cause which a reasonable person would regard as sufficient, namely, a cause which is consistent with a reasonable standard of conduct;[34] that is, some act or omission which operated to prevent the making of the application and which was an act or omission which was, in the circumstances, reasonable.[35]
  1. [43]
    Thus, for example, if a person had retained a solicitor and had given adequate instructions in sufficient time before the expiration of the relevant time limit to enable the application to be made, but through the solicitor's negligence that was not done, then that would be a reasonable cause because such a claimant did what a reasonable person might have been expected to do, namely, leave the matter in the hands of an apparently competent solicitor.[36]
  1. [44]
    Whether a reasonable cause exists for the purposes of s 131(6) of the Act will always depend on the facts of a particular case and will require consideration of the knowledge of the applicant at the relevant time and the actions taken or not taken within the six month time limit.[37]
  1. [45]
    If the failure to make the application was due to ignorance of the law, then that is not a reasonable cause.[38] Thus, if a person was not aware that it was possible to make a claim, then the failure to make a claim is not a reasonable cause. That is to be contrasted to a situation where, for example, the person knows of their rights (to make a claim) but decides not to pursue their rights because of a mistaken belief about the seriousness of an illness.[39]

Mr Wang's claims

  1. [46]
    I will address each of Mr Wang's claims as to why he contends his failure to lodge his application for workers' compensation within six-months of 28 August 2019 was due to mistake or a reasonable cause.

The alleged failure of the doctors at Cairns Hospital

  1. [47]
    Mr Wang contends that his failure to make his application for workers' compensation within the six month time frame was because the doctors at the Cairns Hospital, where he was admitted on 28 August 2019 after he was struck by the vehicle, mistakenly did not determine his injury was one under the Act and did not issue him a Work Capacity Certificate. As referred to earlier, Mr Wang contended that Dr Moore of the Cairns Hospital, where Mr Wang was taken after the vehicle struck him on 28 August 2019, issued a 'Medical Certificate for CTP insurance claims.'[40] That certificate is not in evidence.
  1. [48]
    Mr Wang gave evidence that he told the doctor (at the Cairns Hospital) that his injury happened on his way from work to home and yet the doctor did not lodge an application for him for workers' compensation.[41] This claim does not involve any alleged mistake on the part of Mr Wang but an alleged mistake on the part of a doctor at the Cairns Hospital. There is no obligation under the Act for the doctor he consulted at the Cairns Hospital to determine that his injury was a compensable one under the Act or to make an application for workers' compensation on his behalf. In any event if, as Mr Wang contends, Dr Moore issued a 'Medical Certificate for CTP insurance claims', a reasonable inference that may be drawn is that the information given by Mr Wang to Dr Moore was that he was involved in a motor vehicle accident.
  1. [49]
    For there to be a mistake within the meaning of s 131(6)(a) of the Act, the mistake must be one made by Mr Wang. There is no evidence of this.

The alleged failure of the General Practitioner Mr Wang consulted on 2 September 2019 and the alleged failure of Dr Pozzi

  1. [50]
    Mr Wang gave no clear evidence about consulting a General Practitioner on 2 September 2019, or about the history Mr Wang gave to that General Practitioner regarding the events of 28 August 2019.[42] The evidence is vague. Mr Wang's evidence was that he '… told all my GP doctors … that the injury happened during the trip from work to home.'[43] Mr Wang gave no clear evidence about the names of all of these General Practitioners or the precise dates he consulted them and provided them with this information.
  1. [51]
    Mr Wang did give evidence that he stated that he told Dr Pozzi that his injury happened on his way home from work.[44]
  1. [52]
    However, Dr Pozzi gave no evidence that Mr Wang made any such statement to him when Mr Wang consulted him on 3 February 2020. Furthermore, Dr Pozzi gave no evidence that there was any information, contained in the referral to him from Mr Wang's General Practitioner dated 29 October 2019, that suggested Mr Wang had stated that his injury happened on his way home from work. Indeed, Dr Pozzi's evidence was that it was not communicated to him by Mr Wang's General Practitioner or by Mr Wang, upon Mr Wang being first referred to Dr Pozzi, that he suffered an injury on his way home from work.[45]
  1. [53]
    There is no evidence which persuades me that Mr Wang told any General Practitioner he consulted, or that Mr Wang told Dr Pozzi, that the injuries he sustained on 28 August 2019, when the vehicle struck him, occurred while he was on his way home from work.
  1. [54]
    In any event, even if there was such evidence, the obligation was still on Mr Wang to make his application for workers' compensation within six months of 28 August 2019.
  1. [55]
    There is no evidence, in respect of this part of Mr Wang's claim, that his failure to lodge his application for workers' compensation within six months of 28 August 2019 was due to mistake or a reasonable cause.

The alleged failure of Mr Wang's employer

  1. [56]
    Exhibit 3 was an email from Mr Wang to his employer, sent on 29 August 2019, the day after he was struck by the vehicle, in which Mr Wang informed his employer that he was okay and that he was very lucky in that he suffered no major injuries in a big accident. Mr Wang's evidence was that he reported the accident to his employer straightaway and there was a mistake by his employer in that his employer did not report the injury to WorkCover Queensland within eight days as required by s 133 of the Act.[46]
  1. [57]
    Mr Wang's evidence also was that his employer made a mistake by not lodging an application, on his behalf, for workers' compensation following the advice given by him to his employer.[47]
  1. [58]
    There are a number of difficulties with this claim by Mr Wang.
  1. [59]
    First, Exhibit 3 does not contain any evidence that Mr Wang advised his employer that his injury happened on his way home from work. Mr Wang did not give any other evidence that he informed his employer that his injury happened on his way home from work.[48]
  1. [60]
    Secondly, on the basis of the state of the evidence before me, it is unremarkable that his employer did not make a report, pursuant to s 133 of the Act, within eight days of 28 August 2019. This is because the evidence before me does not persuade me that his employer, from the information provided to it by Mr Wang, had any appreciation that he may have sustained any injuries for which compensation may be payable, namely, that he may have sustained injuries on his way home from work.
  1. [61]
    Thirdly, in any event, even if his employer did make a report to a self-insurer or to WorkCover Queensland within the meaning of s 133 of the Act, that did not relieve Mr Wang of his obligation to make an application for workers' compensation on his own behalf.
  1. [62]
    For these reasons, there is no evidence, in respect of this part of Mr Wang's claim, that his failure to lodge his application for workers' compensation within six months of 28 August 2019 was due to mistake or a reasonable cause.

The alleged failure of Maurice Blackburn Lawyers to advise about workers' compensation

  1. [63]
    Exhibits 1 and 2 comprise a Queensland Compulsory Third Party Insurance, Notice of Accident Claim Form for a non-fatal injury in respect of motor vehicle accidents occurring after 1 October 2000. This Notice of Accident Claim Form was signed by Mr Wang on 12 September 2019. Maurice Blackburn Lawyers assisted Mr Wang in relation to the completion of that claim form.[49] Obviously, Mr Wang had to give relevant instructions to Maurice Blackburn Lawyers to be able to complete this Notice of Accident Claim Form.
  1. [64]
    Mr Wang gave no evidence-in-chief that when he consulted Maurice Blackburn Lawyers, in relation to the accident that occurred on 28 August 2019, that he informed them that when he was struck by the vehicle he was on his way home from work.[50]
  1. [65]
    In cross-examination, Mr Wang accepted that he told Maurice Blackburn Lawyers that he was injured standing on a street corner.[51]
  1. [66]
    In respect of Exhibits 1 and 2, Mr Wang gave evidence that Maurice Blackburn Lawyers, in assisting him to complete the Notice of Accident Claim Form, indicated that there was and would be no workers' compensation or any other type of claim for the injury he sustained that was the subject of the Notice of Accident Claim Form.[52]
  1. [67]
    Mr Wang's further evidence was that the solicitor or lawyer that he saw from Maurice Blackburn Lawyers, in respect of the Notice of Accident Claim Form '… didn't tell me that - of the legal rights and options of work cover.'[53]
  1. [68]
    Mr Wang's complaint, made in the written submissions filed on 8 March 2023, was that Maurice Blackburn Lawyers did not advise him that he was eligible to apply for workers' compensation and that they recommended he pursue a common law claim for damages in respect of a motor vehicle accident. Mr Wang submitted that that recommendation was wrong.[54]
  1. [69]
    I do not accept Mr Wang's submission. I do not accept that the evidence, in any way, demonstrates that Maurice Blackburn Lawyers, on the basis of the instructions given to them by Mr Wang, gave any incorrect advice to Mr Wang.
  1. [70]
    True it is that on the Notice of Accident Claim Form, Maurice Blackburn Lawyers indicated that there was and would be no workers' compensation or any other type of claim for the injury Mr Wang sustained. However, there is no evidence that Mr Wang provided any instructions, at the time that he consulted Maurice Blackburn Lawyers about his claims for the injuries he sustained arising out of the accident that occurred on 28 August 2019, that he informed anyone from that firm that he was injured when he was on his way home from work.
  1. [71]
    On this basis, it is unremarkable that Maurice Blackburn Lawyers, in the Notice of Accident Claim Form, indicated that Mr Wang's injuries did not concern a claim for workers' compensation. In this regard, there was no failure on Maurice Blackburn Lawyers because of the fact they did not advise Mr Wang that he may have been able to make an application for workers' compensation. As a consequence, there is no evidence to support a claim that Mr Wang was provided with any incorrect or incomplete advice, such that a reasonable cause exists in respect of his failure to lodge his application for workers' compensation within six months of 28 August 2019.
  1. [72]
    Exhibit 6 was a complaint Mr Wang made to the Queensland Legal Services Commissioner about Maurice Blackburn Lawyers regarding his engagement of them after the vehicle struck him on 28 August 2019. The date of this complaint is 25 October 2020. In the attachment to the pro forma complaint form, Mr Wang sets out six complaints he makes in respect of Maurice Blackburn Lawyers. None of those complaints concern any alleged failure by Maurice Blackburn Lawyers to advise Mr Wang of his ability to make a workers' compensation claim in respect of the events that occurred on 28 August 2019.
  1. [73]
    Mr Wang obviously had his own reasons for terminating his relationship with Maurice Blackburn Lawyers. Those reasons, however, were not because of any alleged incorrect advice given by Maurice Blackburn Lawyers to Mr Wang about his ability to make an application for workers' compensation. On the evidence before me, the conclusion I draw is that Mr Wang gave instructions that he was injured in a motor vehicle accident and that Maurice Blackburn Lawyers, upon receiving those instructions, promptly commenced a motor vehicle accident claim on behalf of Mr Wang.
  1. [74]
    For these reasons, there is no evidence, in respect of this part of Mr Wang's claim, that his failure to lodge his application for workers' compensation within six months of 28 August 2019 was due to mistake or a reasonable cause.

The alleged failure of Magoffin Law

  1. [75]
    In his first statement of facts and contentions filed on 24 May 2022, Mr Wang claims he engaged Mr John Magoffin's firm in February 2021.[55]
  1. [76]
    On the evidence before me, namely, Exhibit 4, Mr Wang did not communicate with Magoffin Law about him having any possible claim for workers' compensation arising out of the accident that occurred on 28 August 2019 until 15 April 2021.
  1. [77]
    The six month time limit in respect of the accident that occurred on 28 August 2019 expired on 28 February 2020.
  1. [78]
    Having regard to Mr Wang's contentions and the evidence before me, there cannot have been any action or inaction taken by Magoffin Law that could lead to a conclusion that Mr Wang had a reasonable cause for not lodging his application for workers' compensation within six months of 28 August 2019.
  1. [79]
    For these reasons, there is no evidence, in respect of this part of Mr Wang's claim, that his failure to lodge his application for workers' compensation within six months of 28 August 2019 was due to mistake or a reasonable cause.

The claim that Mr Wang did not realise the seriousness of his injury until he was assessed and operated upon by Dr Pozzi in March 2021

  1. [80]
    The evidence before me is contrary to this contention by Mr Wang.
  1. [81]
    Exhibit 4 was Mr Wang's email to Magoffin Law dated 15 April 2021. In that email, Mr Wang stated that it was not until he had read the Act that he believed he may have been eligible to apply for workers' compensation because he was injured between his work and his home. On this evidence, the fact that Mr Wang did not appreciate the seriousness of his injuries until he was assessed and operated upon by Dr Pozzi in March 2021 does not have any causal connection with his failure to make his application for workers' compensation within six months of 28 August 2019. That is to say, on this evidence, the real reason for Mr Wang's failure to make his application for workers' compensation within six months of 28 August 2019 was his ignorance of the law and not because of any appreciation of the seriousness of his injuries.
  1. [82]
    For these reasons, there is no evidence, in respect of this part of Mr Wang's claim, that his failure to lodge his application for workers' compensation within six months of 28 August 2019 was due to a reasonable cause.

The claim that Mr Wang was not in a sufficient mental state to make his application within the prescribed time

  1. [83]
    Mr Wang did not lead any evidence from a doctor which tends to prove that Mr Wang was suffering from any psychiatric or psychological condition that materially affected him making an application for workers' compensation within six months of 28 August 2019.
  1. [84]
    Furthermore, other evidence before the Commission tends to prove that Mr Wang did have the capacity to make an application for workers' compensation within six months of 28 August 2019.
  1. [85]
    Exhibit 7 is a letter from Maurice Blackburn Lawyers to Mr Wang dated 11 September 2019. In that letter, Maurice Blackburn Lawyers confirmed that Mr Wang had a first discussion with a representative of that firm on 29 August 2019, one day after the motor vehicle struck him on 28 August 2019. The letter sets out the relevant time limits to bring a common law claim for damages in relation to the accident.
  1. [86]
    As stated earlier, Exhibits 1 and 2 comprise a Queensland Compulsory Third Party Insurance, Notice of Accident Claim Form for a non-fatal injury in respect of motor vehicle accidents occurring after 1 October 2000. This Notice of Accident Claim Form was signed by Mr Wang on 12 September 2019. Maurice Blackburn lawyers assisted Mr Wang in relation to the completion of that claim form. Obviously, Mr Wang had to give relevant instructions to Maurice Blackburn Lawyers to be able to complete this Notice of Accident Claim Form.
  1. [87]
    Having regard to these actions taken by Mr Wang, I do not accept that Mr Wang's mental state was such that he was incapable of making an application for workers' compensation within six months of 28 August 2019. Furthermore, from this evidence, I do not accept that there was any restriction on the part of Mr Wang to be able to either obtain advice or make his own enquiries about his ability to make an application for workers' compensation within six months of 28 August 2019.
  1. [88]
    For these reasons, there is no evidence, in respect of this part of Mr Wang's claim, that his failure to lodge his application for workers' compensation within six months of 28 August 2019 was due to a reasonable cause.

The claim that Mr Wang was not in a sufficient mental state to make his application within the prescribed time due to alleged domestic violence and other personal circumstances

  1. [89]
    Mr Wang's evidence was that he suffered psychological damage from domestic violence, that he lost family support and because his ex-wife had cancelled his Visa, he had to put all of his intentions into his own survival, including ensuring that he was sponsored (to be able to remain in Australia) by an employer such that he did not have any time to consider making an application for his (claimed) work-related injury.[56]
  1. [90]
    The evidence about when Mr Wang says that his mental state was suffering from these personal issues is vague. There is some evidence that suggests the issues in respect of his wife were occurring about the time of the accident which occurred on 28 August 2019. Exhibit 3 is an email from Mr Wang to his employer in which he stated that he still wanted to make peace with his wife and that he wanted a favourable employment statement to be written for him by his then employer.
  1. [91]
    In any event, assuming that the events about these personal issues occurred between 28 August 2019 and 28 February 2020, my view is that, on the evidence, they were not of such a nature that prevented Mr Wang from instructing Maurice Blackburn Lawyers to commence legal proceedings in respect of the injuries he suffered in the motor vehicle accident. This fact, together with the absence of any medical evidence supporting any detrimental effect on Mr Wang's mental state from these personal issues, persuades me that there is no merit in this aspect of Mr Wang's claim.
  1. [92]
    For these reasons, there is no evidence, in respect of this part of Mr Wang's claim, that his failure to lodge his application for workers' compensation within six months of 28 August 2019 was due to a reasonable cause.

The claim that until April 2021, Mr Wang did not know how to get a Work Capacity Certificate and did not know how to make a WorkCover claim

  1. [93]
    Mr Wang's evidence was that it was not until 15 April 2021, when he took time to read the Act, that he discerned he may be eligible to claim workers' compensation.[57]
  1. [94]
    Exhibit 4 was an email from Mr Wang to Mr Magoffin sent on 15 April 2021 in which he stated that he had just read the Act and that he believed that he may be eligible to make a workers' compensation claim because he was injured between his home and his place of work after he finished work.
  1. [95]
    I accept that until on or about 15 April 2021, Mr Wang did not know that, in respect of the events of 28 August 2019, he could at least apply for workers' compensation. However, as referred to earlier in these reasons, ignorance of the law is not a reasonable cause.
  1. [96]
    Furthermore, for the reasons given earlier, there is no evidence that Maurice Blackburn Lawyers, on the basis of the instructions Mr Wang gave to that firm, provided Mr Wang with any incorrect or incomplete advice about his ability to apply for workers' compensation in respect of the vehicle striking him on 28 August 2019.
  1. [97]
    For these reasons, there is no evidence, in respect of this part of Mr Wang's claim, that his failure to lodge his application for workers' compensation within six months of 28 August 2019 was due to a reasonable cause.

Conclusion

  1. [98]
    For the reasons I have given, I am not persuaded that the review decision of the Regulator should be set aside on the basis of any of the contentions or grounds advanced by Mr Wang.
  1. [99]
    The review decision of the Regulator is confirmed.
  1. [100]
    I will hear the parties as to costs.

Orders

  1. [101]
    I make the following orders:
  1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 2 December 2021 is confirmed.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. (a)
    the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 19 June 2023; and
  1. (b)
    unless otherwise ordered, the decision on costs be determined on the papers.

Footnotes

[1] [2023] QIRC 071.

[2] Green v Workers' Compensation Regulator [2019] ICQ 3 ('Green'), [30].

[3] The Amended Statement of Facts and Contentions of Mr Yuehai Wang filed on 27 May 2022 ('Mr Wang's contentions'), Attachment A, first page, paras. 1-2.

[4] The Statement of Facts and Contentions of the Workers' Compensation Regulator filed on 29 June 2022, fourth page, para. 8.

[5] Mr Wang's May contentions, Attachment A, fifth page, para. 1(b) and the Further Amended Statement of Facts and Contentions of Mr Yuehai Wang filed on 28 February 2023 ('Mr Wang's Further contentions'), Attachment A, fourth page, para. 1(a).

[6] Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461 ('Church'), [27] (Martin J, President).

[7] Ibid [29] and [30].

[8] Ibid [33].

[9] T 2-14, l 42 to T 2-15, l 38.

[10] The written submissions by Mr Wang filed on 6 March 2023 ('Mr Wang's 6 March submissions'), page 6, para. 8.

[11] Mr Wang's Further contentions, Attachment A, page 8, para. 7, item 12 (1) and Mr Wang's 6 March submissions, page 5, para. 7a.

[12] Mr Wang's Further contentions, Attachment A, page 8, para. 7, item 12 (2)-(5).

[13] T 2-32, l 40 to T 2-33, l 11.

[14] Church (n 6).

[15] Mr Wang's Further contentions, Attachment A, first page, para. 7.

[16] Mr Wang's Further contentions, Attachment A, second page, para. 11.

[17] Mr Wang's Further contentions, Attachment A, second page, para. 17.

[18] T 2-26, ll 43-47.

[19] Mr Wang's Further contentions, Attachment A, second page, para. 17.

[20] [2023] QIRC 163, [40].

[21] Mr Wang's 6 March submissions, page 4, para. 6a.

[22] Mr Wang's 6 March submissions, page 4, para. 6b.

[23] Mr Wang's 6 March submissions, page 4, paras. 6c and 6d.

[24] Mr Wang's 6 March submissions, page 4, para. 6e.

[25] Mr Wang's 6 March submissions, page 4, para. 6f.

[26] Mr Wang's 6 March submissions, pages 4-5, para. 6g.

[27] Mr Wang's 6 March submissions, page 5, para. 7a and 7b.

[28] Mr Wang's 6 March submissions, pages 5-6, para. 7e.

[29] The further written submissions by Mr Wang filed on 8 March 2023 ('Mr Wang's 8 March submissions'), page 3, para. 5.

[30] Mr Wang's Further contentions, Attachment A, page 6, para. 2 k.

[31] Black v City of South Melbourne [1963] VR 34, 37 (Herring CJ, Lowe and Dean JJ).

[32] Ibid.

[33] Ibid.

[34] Green (n 2), [9].

[35] Ibid [10].

[36] Ibid [11].

[37] Ibid [12].

[38] Ibid [33].

[39] Green (n 2), [36].

[40] Mr Wang's Further contentions, Attachment A, first page, para. 7.

[41] T 1-37, ll 4-36.

[42] Mr Wang contended that he saw a Dr S. Raumer on 3 September 2019 who issued '… another a 'Medical Certificate for CTP insurance claims' to him: Mr Wang's Further contentions, Attachment A, first page, para. 7.

[43] T 1-42, ll 8-9.

[44] T 1-42, ll 8-9.

[45] T 2-20, l 9 to T 2-23, l 21.

[46] T 1-40, l 43 to T 1-1, l 4.

[47] T 1-41, ll 9-10.

[48] T 1-39, l 12 to T 1-41, l 10.

[49] T 1-30, ll 38-47.

[50] T 1-31, l 28 to T 1-34, l 10.

[51] T 1-47, ll 17-20.

[52] T 1-31, ll 31-34.

[53] T 1-33, ll 22-23.

[54] Mr Wang's 8 March submissions, pages 1-2, para. 1.

[55] Mr Wang's contentions, Attachment A, second page, para. 13.

[56] T 1-41, l 47 to T 1-42, l 4.

[57] T 1-43, ll 17-21.

Close

Editorial Notes

  • Published Case Name:

    Wang v Workers' Compensation Regulator (No. 3)

  • Shortened Case Name:

    Wang v Workers' Compensation Regulator (No. 3)

  • MNC:

    [2023] QIRC 164

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    05 Jun 2023

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
Black v City of South Melbourne (1963) VR 34
2 citations
Jump To
Cite 1 - (1963) VR 34
Cite 2 - (1963) VR 34
Church v Simon Blackwood (Workers' Compensation Regulator) (2015) 252 IR 461
4 citations
Jump To
Cite 1 - (2015) 252 IR 461
Cite 2 - (2015) 252 IR 461
Cite 3 - (2015) 252 IR 461
Cite 4 - (2015) 252 IR 461
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Green v Workers' Compensation Regulator [2019] ICQ 3
8 citations
Jump To
Cite 1 - [2019] ICQ 3
Cite 2 - [2019] ICQ 3
Cite 3 - [2019] ICQ 3
Cite 4 - [2019] ICQ 3
Cite 5 - [2019] ICQ 3
Cite 6 - [2019] ICQ 3
Cite 7 - [2019] ICQ 3
Cite 8 - [2019] ICQ 3
Wang v Workers' Compensation Regulator [2023] QIRC 71
2 citations
Jump To
Cite 1 - [2023] QIRC 71
Cite 2 - [2023] QIRC 71
Wang v Workers' Compensation Regulator (No. 2) [2023] QIRC 163
2 citations
Jump To
Cite 1 - [2023] QIRC 163
Cite 2 - [2023] QIRC 163

Cases Citing

Case NameFull CitationFrequency
Wang v Workers' Compensation Regulator (No. 4) [2023] QIRC 1873 citations
1

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