Wang v Workers' Compensation Regulator

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

Fowler v Workers' Compensation Regulator [2019] QIRC 149

Wang v Workers' Compensation Regulator [2023] QIRC 071

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

[1] The Appellant, Mr Yuehai Wang, suffered certain injuries on 28 August 2019 when a vehicle struck him when he was on a footpath in Cairns. The relevant background to this matter is set out in an earlier decision I released in Wang v Workers' Compensation Regulator ('Wang No. 1').[1] These reasons should be read with paragraphs [1]-[6] of Wang No. 1.

[2] Mr Wang's appeal against the review decision of the Workers' Compensation Regulator, - which was to set aside the earlier decision of WorkCover Queensland to waive the six month time frame contained in s 131(1) of the Workers' Compensation and Rehabilitation Act 2003 ('the Act'), and to substitute a new decision, namely, that Mr Wang did not have a valid and enforceable application for workers' compensation - was heard before me in Cairns on 7 and 8 March 2023. After hearing the evidence led by the parties and their submissions, I reserved my decision in respect of Mr Wang's appeal.

[3] Subsequent to that hearing, Mr Wang has filed two Applications in existing proceedings. The practical effect of these applications is that Mr Wang seeks an order for leave to reopen his case for the purpose of tendering further documents which he claims are relevant to his appeal.

[4] The question before me is whether or not I should give Mr Wang leave to reopen his case.

[5] For the reasons that follow, I decline to grant leave to Mr Wang to reopen his case.

[6] By Application in existing proceedings filed on 13 March 2023, Mr Wang seeks orders that:

• a medical report of Dr Angus Nicoll, Orthopaedic Surgeon, dated 20 May 2020 be admitted into evidence; and

• an order that his injuries be examined by specified registered persons or a Medical Assessment Tribunal and that WorkCover Queensland pays the costs of the examination ('the 13 March application').

[7] The reasons Mr Wang gives for the orders he seeks in the 13 March application are:

• the injuries he suffered on 28 August 2019 resulted in his total or significant incapacity for work for more than two and a-half years and possibly resulted in his permanent, partial incapacity for work, which he claims is relevant to his appeal;

• the evidence of Dr Nicoll proves that his circumstances satisfied s 131(5) of the Act, such that it was 'unreasonable' for the Regulator to apply s 131(1) of the Act; and

• the evidence of Dr Nicoll is evidence that Mr Wang's previous lawyers discriminated against him in that his lawyers allegedly never advised him to make a claim for workers' compensation despite his financial and employment difficulties caused by the injuries he sustained.

[8] Mr Wang contends that '... WorkCover Queensland must waive s 131(1) of the "Act 2003", if the Appellant satisfied s 131(4) of the Act 2003.'

[9] By Application in existing proceedings filed on 27 March 2023, Mr Wang seeks orders that the following documents be admitted into evidence for the reasons stated:

• a letter of Dr Robert Pozzi, Orthopaedic Surgeon, to Mr Wang's General Practitioner dated 7 July 2022, so as to correct an alleged mistake made by Dr Pozzi, when he (Dr Pozzi) gave oral evidence on behalf of Mr Wang at the hearing in Cairns;

• a Work Capacity Certificate, issued by Dr Pozzi dated 23 September 2021, because while Dr Pozzi gave oral evidence that he completed such a Work Capacity Certificate, he did not give the date he issued the Work Capacity Certificate;

• the report of the Queensland Police Service and the '... CCTV screenshot for the 28 August 2019 accident, to correct the Respondent's allegation that the Appellant was stand [sic] on the street when the car hit him'; and

• the Respondent's '... official email "Reviewing the decision - time for applying", to correct the Respondent's statement in the hearing that the Respondent did not consider the [sic] 131(5) of the "Act 2003" for the Appellant's application' ('the 27 March application').

[10] Mr Wang also seeks an order that the identity of Mr Wang's previous lawyer, who he claims told him that '... he do [sic] not have a "Workers' Compensation and other type of claim" on 12 September 2019' be supplied by him to the Commission.

[11] On 11 April 2023, Mr Wang filed a request for an Attendance notice to produce, addressed to the Commissioner of the Queensland Police Service, for the production to the Commission of the following documents:

• the Police report concerning the accident involving Mr Wang;

• certain audio recordings between Mr Wang and particular Police officers;

• '... the CCTV footages when the car hit the Appellant.'

[12] Because I needed to determine whether or not I would give leave for Mr Wang to reopen his case, I did not approve Mr Wang's request to issue the Attendance notice to produce.

The relevant principles regarding the discretion to grant leave to a party to reopen their case

[13] In Fowler v Workers' Compensation Regulator,[2] I set out the principles to be applied in respect of the exercise of discretion by a court or tribunal to allow a party to reopen their case.

[40] The relevant authorities and principles in deciding whether to exercise discretion to grant leave to a party to reopen its case were reviewed by Applegarth J in EB v CT (No.2).

(a) first, the guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application;

(b) secondly, in Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgement have been delivered and that as to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side;

(c) thirdly, in Reid v Brett, the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded, but judgement has not been delivered, were said to be:

(i) the further evidence is so material that the interests of justice require its admission;

(ii) the further evidence, if accepted, would most probably affect the result of the case;

(iii) the further evidence could not by reasonable diligence have been discovered earlier; and

(iv) no prejudice would ensue to the other party by reason of the late admission of the further evidence;

(d) fourthly, the reference by the High Court in Smith v New South Wales Bar Association to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants; and the prejudice caused by delay in the delivery of an expected judgement at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs; and

(e) finally, the interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.[3]

[15] According to the Regulator's statement of facts and contentions filed on 29 June 2022, 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 2021.[4] Mr Wang did not dispute those facts as asserted in the Regulator's statement of facts and contentions.

[16] The review decision of the Regulator, against which Mr Wang appeals to this Commission, is the decision of the Regulator not to waive the six month time frame contained in s 131(1) of the Act. This review decision was made because the Regulator was not persuaded that Mr Wang's failure to lodge his application for workers' compensation within the six month timeframe was due to mistake or reasonable cause.

• (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.

• (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.

(3) Subsection (2) does not apply if death is, or results from, the injury.

(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,

(5) Also, an insurer may waive subsection (1) for a particular application if-

(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

(b) the claimant lodged the application within 20 business days after the first assessment under paragraph (a).

(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-

(a) mistake; or

(b) the claimant's absence from the State; or

(c) a reasonable cause.

[18] The matter for my determination in Mr Wang's appeal is whether or not I should waive the six month time frame.

[19] The evidence that Mr Wang seeks to tender, by his application to reopen his case as set out in the 13 March application, seems to go to his contention that the requirement that he lodge his application within six months of 28 August 2019 must be waived because WorkCover Queensland would be satisfied that special circumstances of a medical nature exist that would be decided by a Medical Assessment Tribunal within the meaning of s 131(4) of the Act. As best as I understand the 13 March application, Mr Wang contends that the evidence contained in the report of Dr Nicoll dated 20 May 2020 supports this claim.

[20] In the alternative, Mr Wang seems to be suggesting that the report of Dr Nicoll dated 20 May 2020 goes to a case he did advance in his substantive appeal, namely, that s 131(5) of the Act applied to his circumstances.

[21] Mr Wang submits that, in any event, he can now tender this document (despite the fact he had closed his case) pursuant to s 556 of the Act.[5] Mr Wang also seems to contend that (despite the fact he has closed his case) I can order that he, in respect of his injuries, be examined by a Medical Assessment Tribunal or other registered persons pursuant to s 556 of the Act.[6] Mr Wang also submitted that he could tender all the documents, particularised in the 13 March and 27 March applications, pursuant to s 556 and s 557 of the Act.[7]

[22] The Regulator submits that because the document now sought to be tendered is irrelevant, it is not in the interests of justice that Mr Wang be given leave to reopen his case. The Regulator also submitted that it would suffer prejudice if Mr Wang was granted leave to reopen his case and tender the document the subject of this application because it would not have any chance to cross-examine the author of the document.

[23] Mr Wang's contentions and submissions are misconceived.

• [24] Mr Wang's appeal to the Commission against the review decision of the Regulator involves a hearing de novo.[8] This means that the parties are to start the case again,[9] and the ambit of such a hearing is determined by the case which was before the Regulator.[10]

[25] As I understand the review decision, which is annexed to Mr Wang's Notice of Appeal filed on 20 December 2021, Mr Wang did not, in his application for review to the Regulator, argue that the facts were such that s 131(4) of the Act applied to his circumstances. Similarly, as I understand Mr Wang's statement of facts and contentions filed in respect of his appeal, of which there were two versions, the first being filed on 27 May 2022 and the second being filed on 28 February 2023, Mr Wang did not advance a case that s 131(4) of the Act had application in his circumstances.

[26] Further, the Regulator, in the review decision, did not make a decision about the application of s 131(4) of the Act to Mr Wang's circumstances. Indeed, having regard to s 131(4) of the Act, it seems readily apparent that there must be a relevant decision of a Medical Assessment Tribunal in existence prior to any consideration being given by the insurer to waive the six month time limit. There is no evidence of such facts in respect of Mr Wang's case.

[27] In addition, for the reasons that I give below in respect of the 27 March application, the case advanced by Mr Wang in his appeal about the application of s 131(5) of the Act concerns a Work Capacity Certificate issued by his General Practitioner, Dr Krasnova, dated 21 April 2021. As a consequence, it is difficult to see how a report by Dr Nicoll, dated 20 May 2020, can have any relevance to the case argued by Mr Wang in respect of the application of s 131(5) of the Act.

[28] The evidence sought to be admitted by Mr Wang, as particularised in the 13 March application, could not have any relevance to any issue that I have to decide in hearing and determining Mr Wang's appeal.

[29] Section 556 and s 557 of the Act have no application to Mr Wang's case. The Commission's power, pursuant to s 556(2) of the Act, to order a worker to submit to a personal examination by one or more specified registered persons, is only enlivened if the circumstances in s 556(1)(a) or (b) are met, namely:

• the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or

• the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal.

[30] The issue in Mr Wang's appeal does not go to either of these issues. The issue is whether the six month time frame in s 131(1) of the Act should have been waived. Further, s 556 of the Act does not confer discretion on the Commission to permit a party to tender documents in the circumstances where the party has closed their case.

[31] Section 557 of the Act concerns the discretion of the Commission to order anything necessary be supplied or to order that defects or errors be corrected. In my view, this power goes to resolving procedural issues to ensure an appeal is heard fairly and efficiently. On the plain words used in the section, s 557 of the Act does not confer power on the Commission to allow a party to tender evidence after it has closed its case and in the absence of leave being given to that party to reopen their case.

[32] For these reasons, I decline to exercise my discretion in favour of Mr Wang to allow him to reopen his case for the reasons advanced in the 13 March application. The interests of justice do not compel that leave be granted to Mr Wang to reopen his case for the reasons he has given in the 13 March application.

[34] Mr Wang submitted that the documents he proposes to tender, in respect of the 27 March application, despite him closing his case, are now admissible pursuant to s 557 of the Act.[11] For the same reasons I have given earlier, this section does not permit Mr Wang to now tender the documents to which he refers in the 27 March application.

[35] The Regulator submitted that it was not in the interests of justice that Mr Wang be given leave to reopen his case because none of the documents, to which he refers in the 27 March application, can have any relevance to the claims he made in his appeal. Again, the Regulator submitted that it would suffer prejudice if Mr Wang was granted leave to reopen his case and tender the documents the subject of this application because it would not have any chance to cross-examine the authors of the documents.

[36] For the reasons that follow, there is merit in the Regulator's submissions.

[37] Before turning to those reasons, one of the documents Mr Wang wants to tender is a document that clarifies that Dr Pozzi conducted the second operation on Mr Wang's left foot on 7 July 2022 and not on 7 July 2021 as Dr Pozzi stated in his evidence.[12] The Regulator conceded that the date of that second operation was 7 July 2022. Having made that concession, the Regulator submitted that, in any event, the clarification of the date of that second operation is irrelevant to the claims Mr Wang makes in his appeal.

[38] It seems to me that, in respect of the 27 March application, the documents Mr Wang proposes to tender, by seeking leave to reopen his case, are for the purposes of him establishing that his circumstances were such that the six month time limit should have been waived by virtue of the application of s 131(5) of the Act.

[39] Mr Wang, in his second statement of facts and contentions filed on 28 February 2023, in setting out the decision he seeks, claims that pursuant to s 131(5) of the Act, the six month time limit contained in s 131(1) of the Act should be waived. Having said that, Mr Wang does not, in the body of his second statement of facts and contentions, clearly articulate the facts upon which he contends s 131(5) of the Act has application.

[40] In his submissions at the hearing in Cairns, Mr Wang submitted that the Work Capacity Certificate issued by Dr Krasnova dated 21 April 2021 was to the effect that his work‑related injury was assessed by Dr Krasnova as resulting in his total or partial incapacity for work; and because he lodged his application on 23 April 2021, which was within 20 business days of that assessment, the six month time limit should have been waived pursuant to s 131(5) of the Act.[13] The Work Capacity Certificate issued by Dr Krasnova dated 21 April 2021 was not tendered into evidence. This is because I upheld an objection made by the Regulator to that document being tendered into evidence when Mr Wang attempted to tender the document in his final submissions in the absence of Mr Wang calling the author to give evidence.[14]

[41] Whether I should, in all the circumstances of Mr Wang's case, waive the six month time frame by virtue of the application of s 131(5) of the Act, is a matter for me to decide in Mr Wang's substantive appeal.

[42] In any event, in respect of the 27 March application, none of the documents that Mr Wang wants to tender, by reopening his case, go to the proposition that the six month time limit should have been waived pursuant to s 131(5) of the Act as a result of the provision by him of the Work Capacity Certificate issued by Dr Krasnova dated 21 April 2021.

[43] Furthermore, none of the documents that Mr Wang wants to tender can have any relevance to his alternative argument, namely, that his failure to lodge his application for workers' compensation within the six-month time limit was due to his mistake or reasonable cause within the meaning of s 131(6) of the Act.

[44] The documents concerning Dr Pozzi do not go to Mr Wang's claim about the application of s 131(6) of the Act.

[45] The documents concerning the police investigation do not go to Mr Wang's claim about the application of s 131(6) of the Act. Mr Wang informed me that he had those documents in his possession at the hearing in Cairns. With reasonable diligence, if Mr Wang wanted to attempt to tender those documents at the hearing in Cairns, he could have done so. Mr Wang also seemed to submit that what was recorded in some of the police documents was a record of him informing the police that he had been misled by his lawyers about his ability to claim workers' compensation following the vehicle striking him on 28 August 2019. Mr Wang did not state the date he allegedly made those statements. This proposed evidence is vague. Further, it is difficult to see how such a self-serving statement could have any probative value in respect of the question of whether or not Mr Wang failed to lodge his application for compensation within the six month time limit, due to a reasonable cause, by virtue of alleged poor advice by his lawyers.

[46] The Regulator's official email, referred to by Mr Wang in the 27 March application, as best as I can make out, seems to be material on the website of the Regulator concerning s 131(5) of the Act. That material could not have any probative value to any case advanced by Mr Wang about the application of s 131(5) of the Act.

[47] Furthermore, if Mr Wang wanted to lead evidence about the name of his former lawyer who allegedly gave him advice that he did not have a right to pursue a workers' compensation claim, then, with reasonable diligence, Mr Wang could have attempted to give evidence about that at the hearing.

[48] For these reasons, I decline to exercise discretion in favour of Mr Wang to allow him to reopen his case for the reasons given in the 27 March application. The interests of justice do not compel that leave be granted to Mr Wang to reopen his case for the reasons given in the 27 March application.

[50] For the reasons I have given, Mr Wang's Applications in existing proceedings filed on 13 March 2023 and 27 March 2023 will be dismissed.

[51] I reserve any question of costs in relation to these two Applications.

The Appellant's applications in existing proceedings filed on 13 March 2023 and 27 March 2023 are dismissed.

[2] [2019] QIRC 149.

[4] The statement of facts and contentions of the Workers' Compensation Regulator filed on 29 June 2022, fourth page, para. 8.

[5] T 1-3, ll 17-18 and T 1-5, ll 30-34.

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

[12] T 2-27, ll 38-40 (Transcript, 8 March 2023).

[13] T 2-44, ll 5-30 (Transcript, 8 March 2023).

[14] T 2-44, ll 5-30 and T 2-48, l 27 to T 2-49, l 11 (Transcript, 8 March 2023).