Canton v Workers' Compensation Regulator [2019] QIRC 145

Carlton v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 29

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031.

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Mayer v Workers' Compensation Board of Queensland (1996) 152 QGIG 1856

State of Queensland (Queensland Health) v Q-COMP and Coyne [2003] QIC 118; (2003) 172 QGIG 1447

Trimble v Simon Blackwood (Workers' Compensation Regulator) and State of Queensland (for Queensland Audit Office) [2014] QIRC 172

Workers' Compensation Board of Queensland v Barclay (1995) 148 QGIG 37

Mr M Glen of Counsel instructed by Maurice Blackburn Lawyers for the Appellant

Ms L Neil of Counsel directly instructed by the Respondent

[1] The Appellant was at all material times employed as an electrician by Phaze Solutions Pty Ltd. On 31 January 2014 he suffered an electric shock injury when his right elbow came into contact with a live cable. On the same date, Dr Sakurai of Cairns Based Hospital issued a workers' compensation medical certificate providing a diagnosis of "electrocution".

[2] On 3 February 2014 the Appellant lodged an application for workers' compensation with WorkCover Queensland. On 23 October 2016 the Appellant, through his solicitors, lodged an application for a permanent impairment which referenced right elbow and psychological injuries.

[3] On 6 July 2017 WorkCover Queensland rejected the application for workers' compensation for psychological injury on the basis that the Appellant had not sustained an "injury" within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 (WCR Act).

[4] In its decision of 15 November 2017, the Regulator confirmed the decision of WorkCover. It is against this decision that the Appellant now appeals to this Commission.

[5] The Appellant has pleaded as part of his Statement of Facts and Contentions that it was the electrical shock incident and his employer's conduct subsequent to the incident which is causative of his injuries. The Regulator has raised an objection that the employer's conduct cannot form part of the appeal because it involves subject matter which was not part of the original application for compensation.

[6] This is a preliminary hearing to determine the scope of the appeal to be ultimately decided by the Commission. In short, the Appellant seeks an order that he be allowed to lead evidence in accordance with the Statement of facts and Contentions including evidence regarding "the employer's conduct".

[7] An appeal to the Commission is, pursuant to s 558 of the WCR Act, a hearing de novo.[1]

[8] The seminal authority within this jurisdiction for the above proposition is Church v Simon Blackwood (Workers' Compensation Regulator).[2] In that case, the Regulator contended that the application originally lodged was outside the statutory time limit and that the Commission had jurisdiction to determine whether s 131 of the WCR Act had been complied with irrespective of the "waiver" of the time limit. At first instance, the Commissioner held that the Commission had the jurisdiction to decide the issue and found that the application for compensation was not valid and enforceable as it had been made out of time. However, on appeal, Martin J held that the "review decision" was to affirm the decision of WorkCover that Mr Church had not sustained an injury within the meaning of the WCR Act. The provisions of the WCR Act dealing with appeals do not contemplate that another issue, removed in time and effect from the review decision, would be able to be considered. His Honour wrote:

[28] The nature of a hearing de novo was discussed by Dawson J in Harris v Caladine where he said:

An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and 'the informant or complainant starts again and has to make out his case and call his witnesses': Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd.; see also Reg. v. Pilgrim; Campbell,'Judicial Review and Appeals as Alternative Remedies', Monash University Law Review.

A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again: see Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd.; Quilter v. Mapleson; and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan.

[29] In describing the nature of a hearing de novo, Dawson J refers to the parties commencing "the application again". In order to understand what is before the Commission it is necessary, then, to determine what the "application" is. It was put in another way by Lush J in R v Pilgrim where he said:

"Generally speaking, on appeal to the quarter sessions the justices are not limited to the evidence before the petty sessions, but they have to hear the whole matter de novo, and the issue is the same, and the justices are put in the same position as the justices in the court below."

[30] While it is correct to say that the parties start again, it is necessary to determine what it is that the parties are starting again. As Dawson J said in Harris v Caladine the "complainant starts again and has to make out his case and call his witnesses". What is the "case" to be made out? If, as Lush J put it: "the issue is the same", what is the "issue"? [3]

[9] The Regulator contends that the subject matter of the appeal is confined to the electric shock injury and not the employer's conduct.

[10] The Regulator submits that the Appellant made no reference to the employers conduct in his original claim; in his subsequent application for a psychiatric injury on 6 October 2016; in his application for permanent impairment dated 6 October 2016; in his submissions dated 21 December 2016; or, in relation to his application for review of the of the decision of WorkCover dated 28 September 2017.

[11] The Regulator contends that the Commission has no jurisdiction to hear and determine any appeal related to a matter which was not the subject of the original application for compensation, and the subject of the reviewable decision.

[12] To support that contention, the Regulator relies on the decision of McKenzie J in Workers' Compensation Board of Queensland v Barclay.[4] In that case the applicant for compensation gave a false account of the way in which she was injured. At the hearing before the Industrial Magistrate, Ms Barclay initially maintained that she had been injured in an incident on 30 July 1992. However, she retreated from that position maintaining that her sore back related to her work but did not attempt to define it with any degree of precision. The application that was before the Industrial Magistrate was one which was proved to be false. In those circumstances, McKenzie J found that the Industrial Magistrate lacked jurisdiction to find that there was a work-related injury which occurred in another way and on another day.

[13] Counsel for the Respondent also referred the Commission to the decision of de Jersey J in Mayer v Workers' Compensation Board of Queensland.[5] In that case, Mr Mayer had made an application for compensation via a Form 4 claiming to have suffered a compensable injury. The difficulty that confronted Mr Mayer was that in the Form 4 under the heading "details of injury" it was recorded that he suffered the injury at home and Mr Mayer did not report the incident to his employer. The injury sustained at home was not a compensable injury. de Jersey J concluded that the only claim for compensation for the purposes of the WCR Act was the claim in respect of the incident at home. As a consequence, "work" was not a contributing factor to the injury.

[14] Both Barclay and Mayer are not, in my view, of assistance in dealing with the matter currently before the Commission. The reasons are twofold: first, both cases speak to a different regulatory regime under the Workers' Compensation Act 1990; and secondly, each case turned on their own unique set of facts. The cases are clearly distinguishable.

[15] For the reasons which follow, I do not accept the Regulator's contention that the employer's conduct cannot form part of the appeal.

[16] The Appellant's solicitors wrote to WorkCover Queensland on 6 October 2016 seeking:

...our client's application to accept the following additional injuries he sustained as a result of the same event subject to claim number S13AW127637:

• Psychological injury; and
• Right elbow injury

[17] In the reply of WorkCover Queensland of 6 July 2017, it was determined that the "secondary psychological injury is not one for acceptance".

[18] The case that was before the Regulator was one which was clearly based on an assessment of a psychological injury. The Regulator's Reasons for Decision notes that:

The contribution of events to the psychiatric injury sustained by Mr Canton on all the medical evidence is multifactorial. Dr Paul Trott, Psychiatrist, has been providing treatment and reports in relation to Mr Canton from March 2013 and I consider in the circumstances he is well placed to elicit an accurate history as to the events contributory to the psychiatric state presented by Mr Canton following the electrocution event of 31 January 2014.

[19] It is asserted by the Regulator that the only reference to the employers conduct in the material before WorkCover was that contained in the report of Dr Trott of 6 December 2016. In that report, Dr Trott observes:

Mr Canton indicated much conflict concerning the circumstances of the electrocution indicating the loss of his employment and the attempted cover-up by the employer, he stating that he had been told to fake it, the explaining that he should state he had suffered an "is accidental home electrocution" and to "change his shirt" and then "go to hospital" rather than to fill out "unnecessary paperwork". Mr Canton stated that he felt uncomfortable by the employer's reaction and conferred with the Project Manager, this resulting in an investigation into the incident and the employer (company) being fined.

Thereafter, Mr Canton was briefly re-employed by the company performing light duties for three days and he added that he had been on compensation for two days. In the aftermath of the accident, Mr Canton had felt uncomfortable at matters of safety including the worry of suffering a further electrocution; though also being wary of his employer's reaction to the same. Mr Canton reported feeling "worked up" and "anxious".

Mr Canton stated that he then lost his job; though he had later questioned the future viability returning to work with the employer given their limited support concerning his electrocution including to under report the matter.

Mr Canton later decompensated in response to the stress of both the electrocution and worry at suffering a future incident, as well as limited support from his employer; though also at losing his job and not being able to gain other work. These factors resulted in much relationship stress. There was the relapse of his recurrent major depression with anxiety, non-melancholic type, as well as the alcohol abuse.

[20] It is not strictly correct to say that the first reference to the employer's conduct appeared in Dr Trott's report. In the Workover Queensland Communications Report dated 4 February 2014, only a few days after the electrocution, it was recorded:

W (worker) advised that he was sacked on the day but the principal contractor B and E do not want lost time, so W went back to them to talk to the E and asked for job back.

[21] It is submitted by the Regulator that whilst the Appellant made reference to the employer's conduct, he did not assert that the claim for compensation was being made in reliance on that conduct. WorkCover cannot be expected, it was argued, in the absence of any indication by the Appellant, to determine which if any stressors was the major significant contributing factor to the Appellant's injury. It was argued that WorkCover can only assess the application before it, namely, the electric shock.

[22] I do not accept the Regulator's submission. The argument advanced by the Regulator misconceives the nature of the appeal before the Commission. What is before the Commission is the decision of the Regulator to reject the application for workers' compensation for a psychological injury in accordance with s 32 of the WCR Act. What WorkCover did or did not do or what the reasons were for the rejection of the claim by the Regulator are irrelevant.

[23] To support the argument that the issue to be determined by the Commission is the "decision" of the Regulator, reference is made to the case of Capuano v QCOMP.[6] That case involved a statutory review of a decision of Q-Comp made under s545(1)(c) of the WCR Act. Section 545(1)(c) is in the same terms as S558(1) of the WCR Act. It was argued in Capuano that Q-COMP failed to exercise its jurisdiction after it set aside WorkCover's decision under section 545(1)(c) by then remitting it back to WorkCover without substituting its own decision. WorkCover determined that the worker did not sustain a "personal injury" and did not deal with the other elements in the definition of injury in s32. Q-COMP determined that the worker did have a "personal injury", set aside the decision and remitted it back to WorkCover for determination. Philippides J concluded:

[20] ... the respondent's powers of review under s 545(1) arise where there has been "a decision" by WorkCover falling within s 540 of the Act. In the present case, the relevant "decision" is that described in s 540(1)(a)(viii) as a decision to reject an application for compensation. It is that "decision" which is the subject of review and that "decision" which may be confirmed, varied or set aside and in respect of which another decision is to be substituted. The flaw in the respondent's argument is that while it is accepted that the "decision" to be reviewed under s 545(1) in the present case is the decision to allow or reject an application, it is argued that "the substitute decision" to be made, upon the setting aside of the WorkCover decision, is not confined to that decision. Rather it is said that the words "substitute another decision" extend to include simply a decision, as was the case here, which merely concerns the basis of the ultimate WorkCover decision under review. Such an approach results in the word "decision" having different meanings and is contrary to well established principles of statutory interpretation. It is clear that the words "substitute another decision" are to be interpreted so that the substituted decision concerns the same decision as that under review - in this case, the decision under s 540(1)(a)(viii) of the Act to reject the application for compensation.

[21] There is another difficulty with the interpretation of s 545(1)(c) urged by the respondent. It is that there is simply no basis arising from the terms of s 545 itself or any other provisions of the Act for the proposition that s 545(1)(c) is to be construed as meaning that where a WorkCover decision is set aside, the ambit of the Authority's substitute decision is limited by the extent and nature of the issues determined by WorkCover in reaching its decision. There is nothing in the Act which precludes the respondent in this case from determining issues that had not been determined by WorkCover in order to make its substitute decision to allow or reject an application. Indeed, the provisions of s 545 of the Act are against such an approach: s 545(2)(a) envisages that the respondent may make its own decision (that is, a decision on the merits) where WorkCover has failed to make a decision at all. In those circumstances, it is difficult to see why the respondent does not have a similar power to decide the matter on the merits under s 545(1)(c), where WorkCover has made a decision to accept or reject an application, but has done so on a limited basis. (Emphasis added).

[24] Swan DP accepted in Trimble v Simon Blackwood (Workers' Compensation Regulator) and State of Queensland (for Queensland Audit Office):

The reasoning, determinations, evidence and/or allegations that are contained in the reasons for decision are not of any relevance to jurisdiction or the scope of the appeal.[7]

[25] The approach adopted by Swan DP reflects the nature of the Appeal to the Commission under s558 of the WCR Act in that it is a hearing de novo.

[26] The scope of the hearing before the Commission is to be determined by the Statement of Facts and Contentions. The Statement of Facts and Contentions set the boundaries of the appeal before the Commission. As Martin J wrote in Carlton v Simon Blackwood (Workers' Compensation Regulator):

The appellant pursued a series of complaints which had not been claimed to have been stressors and, thus, attempted to engage upon a roving enquiry into conduct and events which were not germane to the decision which had to be reached. In the appellant's submissions in reply in this Court, there are nine instances referred to in which slightly different versions of the appellant's case are expounded upon. This is entirely unacceptable. An appellant's case has to be known before the hearing starts. The Commission cannot allow a case to "evolve" and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment.[8]

[27] Whilst the appeal is a hearing de novo, a party is not entitled to go beyond (without leave) the claim that has been articulated in the Statement of Facts and Contentions. As Dawson J said in Harris v Caladine: "...A hearing de novo involves the exercise of the original jurisdiction and 'the informant or complainant starts again and has to make out his case and call his witnesses'."

[28] For the reasons advanced above, I am of the view that the Appellant is entitled to lead evidence in accordance with his Statement of Facts and Contentions including evidence regarding "the employer's conduct".

[29] The Appellant submitted that the Commission should grant the costs of this application.

[30] Costs before the Commission are determined in accordance with s 558(3) of the WCR Act. Section 558(3) provides:

(1) Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation.

It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.

Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.[9]

The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory.[10]

[33] The Appellant's argument before the Commission was successful. The Regulator's argument that the Appellant be prevented from leading evidence contained within the Statement of Facts and Contentions was not accepted. Nothing has been put by way of argument which would remove this matter from the ordinary case where costs follow the event. Accordingly, the Appellant is entitled to its costs of this application.

1. The Appellant is entitled to lead evidence in accordance with his Statement of Facts and Contentions including evidence regarding "the employer's conduct".

1. The Regulator pay the Appellant's costs of this application to be agreed or failing agreement to be the subject of an application to the Commission.

[1] State of Queensland (Queensland Health) v Q-COMP and Coyne [2003] QIC 118; (2003) 172 QGIG 1447.

[2] [2015] ICQ 031.

[3] [2015] ICQ 031.

[4] (1995) 148 QGIG 37.

[5] (1996) 152 QGIG 1856.

[6] [2004] QSC 333.

[7] [2014] QIRC 172.

[8] [2015] ICQ 29 [18].

[9] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534.