Hodgson v Rio Tinto Aluminium Limited
[2015] QSC 93
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- Unreported Judgment
- Hodgson v Rio Tinto Aluminium Limited[2015] QSC 93
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Hodgson v Rio Tinto Aluminium Limited[2015] QSC 93
Hodgson v Rio Tinto Aluminium Limited[2015] QSC 93
SUPREME COURT OF QUEENSLAND
CITATION: | Hodgson v Rio Tinto Aluminium Limited [2015] QSC 93 |
PARTIES: | KRISTIAN DAVID HODGSON (Applicant) v RIO TINTO ALUMINIUM LIMITED ACN 009 679 127 (First Respondent) AND WORKCOVER QUEENSLAND (Second Respondent) |
FILE NO/S: | 773 of 2014 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland at Rockhampton |
DELIVERED ON: | 22 April 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 March 2015 |
JUDGE: | Boddice J |
ORDER: | The applicant’s application is dismissed. I shall hear the parties as to any other orders, and costs. |
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – CLAIMS FOR COMPENSATION – GENERALLY – where the applicant contacted the second respondent to report an injury but asserts no application for compensation was made – where the applicant seeks declaratory relief as to whether the applicant is a person entitled to seek damages for the injuries he sustained pursuant to s 237 of Worker’s Compensation and Rehabilitation Act 2003 (Qld) – whether the applicant had previously lodged a valid application for compensation under the Worker’s Compensation and Rehabilitation Act 2003 (Qld) – whether the court has jurisdiction to make the declarations sought. WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – DELIVERY TO, ACCEPTANCE OR REJECTION OF CLAIM – where the applicant seeks declaratory relief as to whether the second respondent complied with its statutory obligations – whether the second respondent made a decision in respect to the applicant’s application for compensation within the time period – whether the second respondent gave the applicant written reasons for the decision – whether the reasons for the decision to reject the application for damages complied with the requirements of Worker’s Compensation and Rehabilitation Regulation 2003 (Qld), Regulation 120. Worker’s Compensation and Rehabilitation Act 2003 (Qld), s 132, s 134, s 237, s 392, s 542, s 586 Worker’s Compensation and Rehabilitation Regulation 2003 (Qld), Regulation 85, Regulation 120 Cloncurry Shire Council v Workers' Compensation Regulatory Authority & Anor [2006] QSC 362, applied Costello v Queensland Rail [2014] QSC 83, cited Hansen v President of the Industrial Court of Queensland [2011] QSC 130, cited |
COUNSEL: | GF Crow QC for the Applicant SJ Deaves for the Respondent |
SOLICITORS: | Chris Trevor and Associates for the Applicant DibbsBarker for the Respondent |
- The applicant seeks declaratory relief in relation to an entitlement to seek damages for injuries he allegedly sustained at his workplace on 18 November 2011. The claimed relief is opposed by the respondents.
- At issue is whether the applicant has previously made an application for compensation under the Workers Compensation and Rehabilitation Act 2003 (“the Act”) in respect of the injury and, if so, whether the second respondent made a decision in relation to that application or otherwise complied with its statutory obligations.
Background
- The applicant was born on 22 July 1972. He is married with children. He has a longstanding history of back pain. He had made claims for work related injuries in the past. In November 2011, he was completing an apprenticeship as a fitter, whilst employed by the first respondent at its mining operation near Gladstone.
- The applicant alleges that on 18 November 2011, whilst working a nightshift with the first respondent, he injured his back. At the time, he was finishing the change out of a pump. In order to complete this task, the applicant says he was required to stand on either side of the pump coupling, taking its weights between his hands. The applicant alleges the task would normally be undertaken with the assistance of a crane but could not be as only two crew were assigned to complete the task.
- The applicant said he became increasingly aware of pain in his back whilst performing the change out but did not report that pain at the time. He thought it was a muscle strain that would resolve in a few days. When the pain did not resolve, and worsened, the applicant attended his general practitioner on 22 November 2011. He gave an account of “getting recurrent low back pain” which was different as it seemed to be radiating down his right leg. The applicant said he informed the doctor he did not need a medical certificate as he was on rostered days off, and thereafter was to take annual leave.
- The applicant consulted an orthopaedic surgeon, Dr Scott-Young, on 19 January 2012. Dr Scott-Young performed an L5/S1 total disc replacement two days later. On 23 February 2012, the applicant’s general practitioner completed a WorkCover medical certificate recording the applicant had suffered an injury on 8 November 2011 whilst “working with heavy lifting all through the night shift and started to feel lower back pain”.
- The applicant remained employed by the first respondent until 24 November 2014. His employment was terminated on that date following an assessment as to his medical capacity to fulfil the inherent requirements of a mechanical maintenance technician. At the conclusion of that process, undertaken in consultation with various officers of the first respondent including the first respondent’s occupational physician, Robert Hoskins, it was determined the applicant was unable to safely perform those requirements.
Evidence
- On 2 December 2011, the applicant received the results of a CT scan ordered on 22 November 2011. He also obtained a referral to an orthopaedic surgeon, Dr Scott-Young. The applicant’s general practitioner at that time completed a generic medical certificate. The applicant said he told the doctor he did not want to lodge a WorkCover claim.
- On or about 12 December 2011, the first respondent’s occupational health adviser, Brent Sweeney telephoned the applicant. The applicant reported poor functional abilities with difficulty changing postures, standing and walking. He gave a past history of back discomfort, including stiffness and soreness following completion of shift work. This episode was said to have been the most debilitating of his previous history. The applicant did not report to Mr Sweeney that any work related incident had caused his symptoms.
- Mr Sweeney had further telephone discussions with the applicant on 14 December 2011, 9 January 2012 and 9 February 2012. Each of these discussions related to an update as to the applicant’s medical condition. During these conversations the applicant informed Mr Sweeney he had been referred to an orthopaedic surgeon, had had a period of hospitalisation, and had recently undergone back surgery. Mr Sweeney was not informed of any work related incident in any of these telephone conversations. The first time Mr Sweeney became aware the applicant was suffering a lower back injury as a result of a work related incident was when he was contacted on 2 March 2012 by the second respondent’s claims officer.
- On 1 March 2012, the applicant telephoned the second respondent. He gave an account of an injury sustained at his workplace on 8 November 2011. The applicant later ascertained, by reference to a record of his work roster, that the incident took place during the night shift which started on 17 November 2011 and finished on 18 November 2011. The actual injury occurred on 18 November 2011. His previous assertion was based on an assumption, without access to the relevant records which he had unsuccessfully requested access to on numerous occasions.
- The applicant said when he contacted the second respondent by telephone on 1 March 2012, he was not making a claim for compensation. He made the call on the advice of his general practitioner, who told him he should inform the second respondent. The applicant said he did not want to lodge a WorkCover claim as he was still completing his apprenticeship and thought it might jeopardise his future job prospects.
- The applicant accepted he gave a verbal statement about the circumstances of his injury during his telephone conversation with the claims officer on 1 March 2012. The claims officer created an online registration on 1 March 2012, and recorded the following notes of her conversation with the applicant:
“New phone lodgement:
CR to confirm:
*Occupation? Fitter – Yarran
*DOI and time? 4:30m 8 November 2011
*Confirm the event? My back was playing up that night and I had to help Craig McDonald lift a pump, there was couplings which I has to hold while Craig had to bolt it into place. I felt pain down my right leg down through tight and down my right leg. I felt my back twitch to the middle of my lower back I tried to stretch it out a bit. Realised that we’ve left a cover off and we had to re-bolt it in place again. Had to rattle up the gun couldn’t so had to get Craig to do it. It was towards the end of shift.
*Did anyone witness the event? Craig McDonald
*Did you report the injury to anyone? I haven’t been back to work. Following this I went on-to days off. 5 days off and then went onto scheduled leave. Called Gavin Barrett: Team Leader about a week later.
*Did you seek medical treatment straight away? Within a couple of days yes: Dr Tabingo. Around 14/15 November 2011
*Was an incident form completed? No
*Do you play any sports/gym? No sports. Gym, last time was 5 months ago.
*Do you have any hobbies outside work? Play with kids.
*DFS? 12 November. Not sure I know what date, id have to get those dates to be correct. Dr Tabingo local GP.
*What treatment has the Dr recommended for you? CT scan. Referred me to specialist: Dr Matthew Scott Young.
*Have you had any scans? CT Scan. X-rays MRI from Dr Young.
*Why the delay in seeing Dr? (Liability starts on DFS)
- I could walk, I couldn’t get up. I couldn’t sit in a car.
*Delay in lodging claim.
- I thought my emp would I’ve lodged the claim.
- It was may last day on leave.
- Degenerative changes on CT scan. I didn’t know I had to lodge the claim, I didn’t know what was going to happen.
*Have you ever had a previous injury to this area?
- Nothing to right leg but about 15 years ago I hurt back at work when lifting a couple of drums of paint. Claim lodged. Few weeks off work. Physio treatment back then. 3-4 weeks only.
- Back hasn’t been all that good ever since.
*Have you had any time off?
- Haven’t been back to work.
- rested and saw Dr Young in January, refer for surgery.
- surgery was on Sat 21/1/2012.
- MRI on 18/1/2012.
- ENG on 19/1/2012.
*Advised claims process
*IW registered for worker online – N
*Tax dec requested – N
IW to fax copy of med cert to WCQ as soon as possible.
CR to contact emp.”
The applicant accepted those notes were an accurate record of their conversation.
- A system generated text message was sent to the applicant’s mobile phone by the second respondent on 1 March 2012, confirming receipt of his claim. It gave a claim number. The applicant confirmed the mobile phone number was his number. He said he believed the claim number was merely a reference number, in response to notification of the injury.
- On 2 March 2012 the claims officer contacted the first respondent to advise lodgement of the claim. The note of that conversation was in the following terms:
“PC to E
CR to advise that claim was lodged.
CR is waiting on a med cert to be provided.
CR will forward through a email to emp with details
Emp stated:
- –Not aware of the claim
- –Aware that he has been suffering an injury but didn’t know it was work-related.
- –I think he is due back to work soon.
- –Will look into this and req a copy of med cert once received.
- –What is he claiming for?
CR advised that WCQ is not sure yet what IW is claiming for.
CR gathers its for medical expenses
CR to forward med cert and app to emp.”
On the same date an email was sent to the first respondent confirming the applicant had recently lodged an application for compensation.
- The applicant said sometime after this conversation, the first respondent contacted him to advise an investigation into the incident would be undertaken. Subsequently, he was advised the first respondent would not support a WorkCover claim. He was told it would be in his best interests not to pursue the matter further. The applicant said he thought that was the end of the matter. He said he did not hear further from the second respondent.
- The second respondent’s claims officer undertook further investigations in respect of the claim. On 6 March 2012, the claims officer contacted the applicant by telephone to request medical certificates. The applicant accepted he responded to the request by arranging for the certificates to be forwarded to her by his general practitioner. On that same date, the claims representative advised the first respondent they were awaiting a medical certificate. A note of that conversation was kept in the online system. An email was also sent attaching the file note of the discussion between the claims officer and the applicant on 1 March 2012.
- On or about 7 March 2012, the claims officer sent a copy of that file note to Brent Sweeney. Around that time the second respondent received three copies of a workers compensation medical certificate from the applicant’s general practitioner. On or about the following day, the claims officer attempted to contact Brent Sweeney by telephone. A note of this attempt was recorded in the on-line system.
- The applicant’s claim for workers’ compensation was investigated by Craig Wise, a specialist safety officer employed by the first respondent. On 9 March 2012, hee was emailed a copy of the second respondent’s note of the telephone conversation with the applicant dated 1 March 2012. That was initially the only information available to Wise as no incident report had been made by the applicant in November 2011.
- On or about 13 March 2012 Wise interviewed the applicant in person. He took handwritten notes. Those notes recorded the following conversation:
“The applicant states: At approximately 04:30am, Kris received a call from the Shift Controller to assist in the repair of a pump in the 330 system. The job had been ongoing through the night utilising members of the shift maintenance team. Earlier in the shift, one Technician had to leave site, leaving only one Technician to complete the task. When Kris arrived at the job, the coupling was required to be installed on the shaft. The coupling was quite heavy and both Technicians lifted the coupling into position. The Technicians were standing on either side of the shaft. Once the coupling was in place, it was identified that a cover that was required for the operation of the pump had not been installed prior to the coupling. This required the coupling to be removed and the cover installed. The coupling was then required to be put back into place. In addition to lifting the coupling, a large rattle gun was being used to tension the bolts for the pump. Kris states that this gun was too large for the task being completed. Kris states that when he was installing the coupling, his back felt sore and weak. This was not reported to the Team Leader. Kris completed the shift and had a handover with the incoming shift prior to going on leave.
Whilst on leave, Kris was holidaying at Hamilton Island. After two days on the island Kris states that his back became extremely sore. On the day before Christmas, Kris states that he collapsed onto the floor and an ambulance was called to take him for treatment. Kris consulted his personal doctor (Dr. Tabinga) at the Gladstone Medical Centre who referred Kris for X-rays and scans. Kris states that Dr Tabinga has diagnosed degenerative back damage.
Prior to lifting the pump on the 9th of November, Kris states that his back was sore on and off for a month. None of these instances were reported to his Leader as a workplace injury. Examples of the pain were issues operating the clutch of a vehicle would generate pain in his leg.
Asked why Kris didn’t report the issue on the night of the 9th November, he states that he just wanted to go home. Kris states that it wasn’t unusual to have pain in his back whilst at work, it would gradually increase during his days on and then he would recover on his days off.
Kris states that he suffered serious back trauma approximately 20 years ago whilst at work. He was lifting two paint tins at the time and the back injury that occurred meant that he had to take three weeks off work. A Workcover claim was submitted and approved for this incident.
Kris states that he submitted the current Workcover claim at this Doctors request. Kris does not play any contact sports however he has previously gone to a gymnasium. However, he has not done this for quite a while.
Kris has been liaising with the site Occupational Health Centre for 3 months to monitor his progress. Kris is now due back to restricted duties on the week of the 19th March.”
- Further enquiries undertaken by Wise on 13 March 2012 revealed the applicant had never reported a workplace back injury to his team leader, and the fitter working with the applicant on a pump on the evening of 8 November 2011 was not aware of any injury occurring whilst working on the pump at that time. These enquiries also revealed the maintenance log indicated the applicant was not working on the pump on 8 November 2011.
- Wise prepared a summary of his findings in respect of the alleged incident, and emailed it to Brent Sweeney on 5 April 2012 for distribution to the second respondent. It confirmed no injury had been reported by the applicant to his team leader, or any other employee of the second respondent. The conclusion was that no injury was suffered on 8 or 9 November 2012. Wise denied ever saying to the applicant the first respondent would not support a WorkCover claim, and that it would be in his best interests not to pursue the matter further.
- On 16 March 2012, the claims officer received an email from Brent Sweeney, advising he was working on the employer’s report. The claims officer advised Brent Sweeney by email the report would be needed by 19 March 2012. The claims officer unsuccessfully attempted to contact Sweeney by telephone on 19 March 2012 and on the following day. Notes of these attempts were kept in the online system.
- On or about 20 March 2012, Brent Sweeney sent an email to the claims officer advising a review of the records identified no incident being reported as having been suffered on 8 November 2011. On or about 21 March 2012, the claims officer received an email from the first respondent advising that at this point the first respondent did not believe the injury occurred at work.
- On or about 10 April 2012, the claims representative received an email from Brent Sweeney attaching the first respondent’s response to the applicant’s claim. Two days later the claims officer advised the first respondent they were still awaiting further medical information.
- The time for a response by the second respondent to the applicant’s claim, in accordance with the Act, was 22 May 2012. Prior that date, the claims officer prepared a decision. On or about 22 May 2012 that claims officer generated a document enclosing reasons for the second respondent’s decision in rejecting the application for compensation. That document was sent to be reviewed and signed off by a customer services manager. On the same day a letter was forwarded to the applicant, at his residential address, advising the second respondent was not able to respond to his claim within the specified time period.
- Once the decision and reasons document dated 22 May 2012 was reviewed, it was forwarded by post to the applicant’s residential address. The claims officer believes that letter was posted on or about 1 June 2012. That same day, the claims officer unsuccessfully attempted to contact the applicant by telephone. A note of what was to be conveyed was recorded in the online system. An email was also sent by the claims officer to the first respondent advising of the second respondent’s decision to reject the application.
- The applicant said he did not receive any letter from the second respondent dated 22 May 2012. The applicant said the residence he has lived in since 2009 has had many instances of mail not being received at that residence. On at least four occasions, the applicant has found pieces of mail lying on the side of the road. On one occasion, it was a letter addressed to the applicant. On other occasions the letters were addressed to other residents of the street. There also have been numerous occasions when mail for other residents in the street has been left in their letterbox.
- The applicant said if he had received the letters dated 22 May 2012, he would have opened them and shown them to his wife to ask her to read and explain it to him as he has difficulty reading and writing due to a childhood injury. The applicant’s wife confirms there were difficulties receiving mail at that residence, and that the applicant has learning difficulties and struggles with reading and writing. The applicant’s wife says because of these difficulties, any letters the applicant receives are brought to her. She never saw either of the two letters dated 22 May 2012.
- The applicant continued in his employment throughout 2012 and 2013. On or about 19 March 2014, the applicant presented to the first respondent’s occupational health centre complaining he was unable to manage his back pain. He expressed concern about his ability to perform meaningful work. He was unsure about his future employment. On 20 March 2014, the applicant consulted his present solicitors. He instructed those solicitors a WorkCover claim had not been lodged in respect of the injury in November 2011 as he was concerned about his ongoing employment with the first respondent if he bought a claim.
- Brent Sweeney met with the applicant on or about 24 March 2014 to discuss his ongoing progress. A meeting was also held with Dr Hoskins who raised the prospect of making a claim in respect of a recent work incident involving a turnstile. Brent Sweeney said the applicant asked him what had happened to his WorkCover claim and whether it had been accepted by the second respondent. On or about 25 March 2014, Brent Sweeney contacted the second respondent to enquire about the outcome of the applicant’s claim. He was advised the claim had been rejected by the second respondent. Later that day he received an email from the applicant forwarding an email he had received from the second respondent attaching the reason for that decision. The attached reasons were a copy of the reasons dated 22 May 2012.
- On 29 April 2014 the applicant’s solicitors obtained the applicant’s claim history from the Workers’ Compensation Regulator. The results of that search, under the names “Kristian Hodgson” and “Kristian David Hodgson”, revealed no record of an injury being reported to WorkCover in or around late 2011.
- On 27 May 2014, the applicant instructed his solicitors he wished to pursue a common law claim in respect of his injury. The applicant instructed he did not want to lodge a Notice of Claim for Damage until close to the expiry for the limitation period as he was “fearful that the first respondent would terminate his employment upon receipt of the Notice of Claim for Damages”. On 30 October 2014 the applicant signed an urgent Notice of Claim for Damages, which was lodged with the second respondent that same day.
- Enquiries undertaken by the solicitors immediately prior to 30 October 2014, revealed a record of a letter from the second respondent dated 22 May 2012 rejecting an application for compensation in respect of an incident on 8 November 2011. The description of that incident was similar to the event described in the proposed urgent Notice of Claim for Damages. The applicant said he was not aware of an application for compensation having been lodged with the second respondent. The applicant also instrucedt his solicitors he had not received any letter dated 22 May 2012 from the second respondent. The applicant said he first saw the rejection letter in 2014, when he was emailed a copy of it by the first respondent. The applicant said he did not understand what that letter meant as he has difficulty reading and writing due to a head injury sustained as a child.
Submissions
- The applicant submits the evidence establishes he never made a claim for compensation in respect of the incident on 18 November 2011 in or about March 2012. The procedure adopted in respect of the applicant’s telephone conversation on 1 March 2012 does not satisfy the requirements for an application for compensation under Section 132 of the Act. The relaxation requirements in Section 586 of the Act were also not satisfied in the circumstances. Accordingly no application was made by the applicant.
- Further, any application could not be considered valid as it was made in breach of Section 132(3)(a) of the Act. The application was not accompanied by a medical certificate. The application also did not satisfy Section 132(3)(b) as the information provided did not meet the requirements of Regulation 85 of the applicable Regulations.
- The applicant submits that if an application was made, the second respondent did not comply with its obligations under Section 134 of the Act. The second respondent was required to make a decision by 29 March 2012. A letter enclosing the requisite decision was not prepared until 22 May 2012. It was not sent by post until 1 June 2012. The applicant did not ever receive that.
- The second respondent also did not comply with its mandatory requirements under Section 134(6) to notify the applicant within five business days after the end of the requisite period of its reasons for not making the decision. As the applicant is entitled, pursuant to Section 392 of the Act, to assume the provisions had been complied with, the applicant was entitled to assume he had not lodged a valid application for compensation in respect of the alleged incident.
- In the alternative, the applicant submits declarations ought to be made to the effect the time for review of the second respondent’s rejection of that application has not run. The reasons for decision dated 22 May 2012 did not satisfy the requirements of Regulation 120. Those reasons failed to state the evidence which was accepted and rejected, failed to state why the evidence was accepted or rejected, failed to state the conclusions drawn from the evidence, and failed to disclose the link between the evidence, the conclusions and the relevant provisions of the Act.
- Finally, the applicant relies on the fact that a condition imposed by the second respondent in relation to the urgent notice of claim was that the applicant bring an application for a declaration pursuant to Section 237 of the Act. This condition meant the applicant lost his alternate statutory rights, namely an ability to apply to the Workers’ Compensation Regulator for an extension of time.
- The respondents submit the applicant is not entitled to seek damages for injuries sustained on 18 November 2011 as he lodged an application for compensation in respect of that injury.[1] The requirements for making an application were met in all of the circumstances. The second respondent had a procedure for applications for compensation to be lodged by telephone. The applicant availed himself of that procedure. The evidence of the claims officer supports a conclusion the applicant expressly stated he wished to lodge an application and provided details of the event, witnesses and medical treatment. A confirmatory text message was sent to the applicant’s mobile phone that day advising his claim had been received and was being decided. The applicant subsequently forwarded, to the claims officer, medical certificates in response to her request.
- The respondents submit the applicant’s assertion he did not make a claim is inconsistent with the conversations he had with the claims officer, and subsequently with Wise in relation to the incident. In any event, there is no provision under the Act for a worker to merely give a notification of a work related injury. The respondents further submit that while the applicant claims he did not receive the letter rejecting his claim in June 2012, the evidence establishes he received a copy of it by email on 25 March 2014. By that stage, he had consulted a solicitor in respect of a claim. His failure to bring this letter to the attention of the solicitor supports an inference the applicant was aware a claim had been made and rejected by the second respondent.
- In the alternative, the respondents submit the Court does not have jurisdiction to make the declarations sought or, in the exercise of its discretion, ought not to make those declarations in light of the available review and appeal rights in the Act. The existence of these extensive rights militate against the granting of any declaratory relief.[2]
- The respondents submit the second respondent’s failure to make a decision within the time required by Section 134(2) of the Act does not make its decision invalid. At the latest, the applicant received the second respondent’s written notification of rejection and reasons for its decision on 25 March 2014. The time for filing an application for review ran from that date.
Legislative Scheme
- The Act provides a Scheme for the making of claims by workers for injuries sustained in the workplace. That Scheme includes a limitation on workers seeking damages for an injury.[3] The Act provides specified procedures for the lodging of an application for compensation, its investigation and determination by the second respondent, and for the notification of any decision, including the reasons therefor, within specified time periods.
- The Scheme is beneficial and is in the nature of remedial legislation.[4] The nature of the legislation renders important a consideration of whether the requirements of the Act have been met in any particular case. This importance is recognised in the Act, as a person dealing with the second respondent is entitled to make assumptions that there has been compliance with the Act, and that the second respondent’s agents have properly performed their duties.[5]
- An application for compensation must be made in the approved form by the claimant.[6] That application must be accompanied by a certificate in the approved form, given by a doctor who attended upon the claimant and any other evidence or particulars described under the Regulations. The applicant must give to the insurer, among other things, proof of the injury and its cause, and proof of the nature, extent and duration of incapacity resulting from the injury.[7]
- Compliance with a relevant provision of the Act is satisfied if a claimant gives the information required on the approved form by telephone and, where that information is to be accompanied by a document, the claimant gives the document to the second respondent within the reasonable period decided by the second respondent.[8] A requirement that a person’s signature appear on the approved form is satisfied in the case of a telephone communication if a method is used to identify the claimant and to indicate that person’s approval of the information, and the method used is as reliable as is appropriate for the purposes for which the information was communicated, and the second respondent consents to those requirements being met by that method.
- An application for compensation must be allowed or rejected after the application was made.[9] The second respondent must notify a claimant of its decision on the application. Where the application is rejected, written reasons for the decision must be delivered to the claimant. Where the second respondent has not made a decision within 20 business days it must, within five business days after the end of that time period, notify a claimant of its reasons for not making the decision, and notify the claimant of the right to have the application reviewed under the Act.
- The reasons for decision must specify the provision of the Act under which the decision was made, the evidence considered for the decision, what evidence was accepted or rejected and the reason therefor, the conclusions drawn from the evidence and the link between the evidence, the conclusions and the relevant provisions of the Act.[10]
Findings
Did the applicant lodge a claim?
- The applicant denied contacting the second respondent at any stage for the purposes of lodging an application for compensation, or to obtain any benefits. He said his contact was merely as a consequence of the advice of his doctors that he should notify WorkCover in case a claim was required to be lodged in future. I do not accept the applicant’s evidence on this aspect. It is inconsistent with the contemporaneously made documentation.
- The contemporaneous note of the conversation between the applicant and the second respondent’s claims officer on 1 March 2012, which was accepted by the applicant as giving an accurate account of the conversations, records the purpose of the conversation as “new phone lodgement”. It details the applicant’s occupation, the date and time of the alleged work incident, the circumstances of the alleged incident, and whether the incident had been witnessed or reported to the first respondent. It also records details of the applicant’s contact with medical practitioners. Significantly, there is an explanation of his delay in lodging a claim, and confirmation the applicant would fax a copy of the medical certificate to the second respondent as soon as possible.
- A consideration of the terms of that note are entirely consistent with the telephone conversation between the applicant and that claims officer being in respect of an application for compensation. Whilst a system which allows a record to be kept by the second respondent, without any information as to its accuracy, is fraught with danger, the recording of the present conversation is detailed, and entirely consistent with telephone lodgement of a new claim.
- The claims officer’s conduct thereafter, in arranging for a system generation text message to be sent to the applicant’s mobile phone confirming receipt of his claim and confirmation of the claim number, was also consistent with the applicant’s telephone call being for the purposes of a lodging a claim in relation to the incident at his workplace. Similarly, the notes of the claims officer’s contact with the first respondent is consistent with the conversation with the applicant being in respect of a claim for compensation.
- The applicant’s evidence on this aspect was also inconsistent with his actions in arranging for the relevant medical certificate to be forwarded to the claims officer by his general practitioner, and his subsequent conversations with Brent Sweeney in or about late March 2014 wherein he requested information as to what had happened to his WorkCover claim in respect of the incident in November 2011. I accept Mr Sweeney’s evidence in respect of this matter. I do not accept the applicant’s evidence to the contrary.
- I did not find the applicant a reliable witness. His explanation as to why he contacted the second respondent on 1 March 2012 was neither logical nor credible. The suggestion the purpose of the call was simply to notify the second respondent of the incident, in circumstances where he had given no notification to the first respondent, lacked credibility. Similarly, his explanation for his understanding of the system generated text, which included a claim number, lacked credibility. I am satisfied the applicant, on 1 March 2012, contacted the second respondent for the purpose of lodging an application for compensation.
- I am also satisfied that telephone notification met the requirements of the Act for lodgement of an application for compensation. Whilst the application was not made in the approved form, it was made by telephone in circumstances where both the applicant and the second respondent consented to the application being made in that form. The information provided satisfied the requirements of the relevant Regulation. The fact the applicant did not provide a copy of the medical certificate at that time does not prevent that telephone conduct from satisfying the requirements of the Act. The Regulations clearly provide that a certificate can be forwarded within a reasonable time. The applicant did so, specifically at the request of the second respondent, and in a timely fashion.
- The fact the first respondent did not know details of what the applicant was claiming, on 2 March 2012, does not prevent the applicant’s telephone contact with the second respondent from constituting an application for compensation. Until that contact, the first respondent was unaware of any allegation the applicant’s injuries were due to a work related incident.
Did the second respondent comply with its obligations?
- The Act contains specific time limitations in relation to a determination of an application for compensation. There are also statutory obligations placed on the second respondent in relation to the provision of reasons for any decision to reject an application for compensation. The evidence establishes the second respondent did not comply with its statutory obligations in relation to a determination of the applicant’s application for compensation within the statutory time period.
- Whilst the second respondent contends the applicant was notified of its decision by letter dated 22 May 2012, forwarded by post on or about 1 June 2012, I accept the evidence of the applicant and of his wife that that letter was not received by the applicant in 2012. The applicant’s conversation with Mr Sweeney in March 2014, wherein he requested information as to the outcome of his application for compensation, is consistent with the conclusion the applicant did not receive notification of the second respondent’s decision in 2012.
- The applicant did, however, receive notice of that decision in March 2014, when he was provided with a copy of the letter rejecting his application for compensation dated 22 May 2012. The applicant accepted he was told by Brent Sweeney at that time that his claim had been rejected by the second respondent. At that point, the applicant had established rights of review under the Act.
- The time for seeking such a review commenced to run at that date. The mandatory time period specified in s 542 of the Act applies even if the reasons for decision given by the second respondent do not satisfy the Regulations.[11] Further, the second respondent’s failure to make a decision within the statutory period did not render its decision invalid.[12]
Conclusion
- The applicant did make an application for compensation in respect of the alleged injury suffered at his workplace on 18 November 2011. The applicant is therefore not entitled to the declaration sought in paragraph 1 of the application.
- Whilst the second respondent did not make a decision in respect of that application for compensation within the time period specified by the Act, the applicant was subsequently notified of the second respondent’s decision when provided with a copy of the letter dated 22 May 2012 in late March 2014. That letter provided written reasons for the decision to reject the claim. Even if those reasons did not comply with the Regulations, time commenced to run in respect of the applicant’s statutory right of review. The applicant is not entitled to the declarations in the alternative.
- Had I been satisfied the applicant was entitled to some or all of the declarations sought in the alternative, I would have exercised my discretion not to grant those declarations.
- The applicant did not exercise his right of review when he received a copy of the reasons for decision in March 2014. I do not accept the failure to inform the solicitors as to the existence of that letter was due to a lack of understanding by the applicant of the significance of this letter. The applicant had only very recently spoken to solicitors about making a claim, and had formed the intention to make a claim at as late a stage as possible.
- The applicant’s failure to advise his legal representatives of the existence of the letter dated 22 May 2012 is consistent with the applicant’s instructions that the filing of any claim occur as late as possible, due to concerns his employment may otherwise be in jeopardy.
- The applicant made a tactical decision as a consequence of which he lost his statutory right of review. However, the applicant still has available to him a process of review. He may make application to the relevant Regulator for a review out of time.[13] Whilst the second respondent contends the fact the applicant has not exercised that opportunity, a condition of the second respondent’s consent to the lodgement of an urgent notice of claim was that the applicant bring the present application. He is not estopped from now making an application for a review out of time.
Orders
- The applicant’s application is dismissed. I shall hear the parties as to any other orders, and costs.
Footnotes
[1] The Act, s 237(1)(d).
[2] Costello v Queensland Rail [2014] QSC 83.
[3] The Act, s 237.
[4] Cloncurry Shire Council v Workers’ Compensation Regulation Authority and Anor [2006] QSC 162 at [24].
[5] The Act, s 392.
[6] The Act, s 132.
[7] Reg. 85.
[8] The Act, s 586.
[9] The Act, s 134.
[10] Reg. 120.
[11] The Act, s 542(4)(c).
[12] Cloncurry Shire Council v Workers’ Compensation Regulatory Authority [2006] QSC 362.
[13] Cloncurry Shire Council v Workers’ Compensation Regulatory Authority [2006] QSC 362; Hansen v President of the Industrial Court of Queensland [2011] QSC 130.