Wang v Workers' Compensation Regulator [2025] ICQ 20

Industrial Relations (Tribunals) Rules 2011 (Qld), r 61

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 7, s 32, s 35, s 36A, s 131, s 544, s 548, s 549, s 561

Carlton v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 029, cited

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

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22, cited

Kim v Workers' Compensation Regulator [2019] ICQ 14, cited

Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, followed

Local Government Association of Queensland Ltd v Queensland Services Industrial Union of Employees and Ors [2017] ICQ 002, cited

R v Katsidis; ex parte Attorney-General (Qld) [2005] QCA 229, followed

R v Young (No 2) [1969] Qd R 566, followed

Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, followed

Regan v WorkCover Queensland (2003) 174 QGIG 1009; [2003] ICQ 55, followed

Shrimpton v The Commonwealth (1945) 69 CLR 613; [1945] HCA 4, followed

Turay v Workers' Compensation Regulator [2023] ICQ 13, cited

Wang v Workers' Compensation Regulator [2023] QIRC 071, related

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

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

Wang v Workers' Compensation Regulator (No 4) [2023] QIRC 187, related

Workers' Compensation Regulator v Glass (2020) 4 QR 693; [2020] QCA 133, cited

Worker's Compensation Regulator briefed Mr Sapsford directly

• [1] The appellant, Yuehai Wang, seeks to adduce evidence in his appeals which was not before the Queensland Industrial Relations Commission at first instance. He also submits that further steps should be taken before the appeals are ready for hearing.

• [2] Mr Wang was employed as a mechanic in Cairns.
• [3] He claims that on 28 August 2019 he was walking home from his place of employment when he was struck by a car. An injury sustained by a worker when travelling to or from work and their home is, relevantly, an injury which is compensable under the Workers' Compensation and Rehabilitation Act 2003 (WCR Act).[1]
• [4] Mr Wang suffered a foot injury and other injuries, and was taken by ambulance to the Cairns Hospital where he was treated.
• [5] Any entitlement of Mr Wang to compensation arose on 28 August 2019.
• [6] On or about 23 April 2021, Mr Wang lodged an application for worker's compensation with the insurer, WorkCover Queensland, pursuant to the provisions of the WCR Act. That application was out of time.[2]
• [7] Section 131 of the WCR Act limits the time for applications but enables the insurer to extend time. It provides:

(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, exist.

(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." (emphasis added)

• [8] If the time for lodgment of Mr Wang's application was extended, then, by s 131(2), Mr Wang's entitlement to compensation was, subject to s 131(6), limited to the period commencing 20 business days before 23 April 2021.[3]
• [9] Therefore, the fact that Mr Wang's application was filed out of time raised two matters which required the exercise of discretion by WorkCover, namely:

(a) whether WorkCover should waive non-compliance with the six months' time limit for lodgement of the claim;[4] and

(b) whether WorkCover should waive the effect of s 131(2) and assess the entitlement to compensation for a period starting earlier than 20 business days prior to 23 April 2021.

• [10] WorkCover exercised both discretions. It:

(a) waived non-compliance with the time limit prescribed by s 131(1); but

(b) did not extend the period of cover beyond the period commencing 20 business days before 23 April 2021.

• [11] Mr Wang sought review of WorkCover's decision not to extend the period of cover.[5] That review was conducted by the respondent, the Workers' Compensation Regulator.
• [12] The Regulator considered Mr Wang's application for review, set aside WorkCover's decision to waive the time limit prescribed by s 131(1) and, therefore, concluded that Mr Wang did not have a valid and enforceable claim for compensation. Given the Regulator's reversal of WorkCover's decision to accept the claim, Mr Wang's complaints about the exercise of discretion under s 131(2) became irrelevant.
• [13] From the Regulator's decision, Mr Wang appealed to the Commission.[6] In due course, the hearing was listed to commence before Deputy President Merrell in Cairns over two days, being 7 and 8 March 2023.
• [14] Before the hearing, Mr Wang issued an attendance notice[7] directed to solicitors who Mr Wang had consulted about his accident. Upon the return of the attendance notice, it became clear that the solicitors did not have the documents which Mr Wang was seeking, and the Deputy President set the attendance notice aside.[8] I shall call that decision "Wang No 1".
• [15] Mr Wang's appeal against the Regulator's decision was heard on 7 and 8 March 2023 in Cairns. Mr Wang gave evidence himself and he called a doctor, Robert Pozzi, an orthopaedic surgeon who gave evidence and was cross examined. As later discussed, Mr Wang seeks to adduce further evidence from Dr Pozzi on the appeals to this Court.
• [16] The Deputy President reserved judgment but before his decision could be delivered Mr Wang filed two applications, one on 13 March 2023 and one on 27 March 2023. On 11 April 2023 Mr Wang also filed a request for an attendance notice to be issued to the Commissioner of the Queensland Police Service for the production of documents said to be relevant to the police investigation of Mr Wang's accident.
• [17] In the Deputy President's reasons for dismissing the applications,[9] which I will call "Wang No 2", the Deputy President described the orders sought in the application filed on 13 March 2023 and the reasons for seeking them as:

"[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 Nicholl 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."[10]

• [18] As to the application filed on 27 March 2023 the Deputy President described the orders sought as:

"[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]

• [19] As already observed, by the time the applications were filed, the Deputy President had heard Mr Wang's appeal from the Regulator's decision. The Deputy President, rightly in my view, concluded that in order to proceed with the applications Mr Wang must obtain leave to re-open his case. He treated the applications as applications to re-open the appeal.[12] If Mr Wang was successful, the documents the subject of the applications would then be tendered in the appeal.
• [20] As also already observed, Mr Wang's applications were dismissed.[13]
• [21] On 5 June 2023, the Deputy President dismissed Mr Wang's appeal from the Regulator's decision.[14] I will call that decision "Wang No 3".
• [22] When dismissing the appeal the Deputy President made directions for the exchange of written submissions on costs. In due course, submissions were exchanged and on 20 June 2023 the Deputy President ordered that Mr Wang pay the Regulator's costs of the appeal fixed in the sum of $3,968.30.[15] I will call that decision "Wang No 4".

• [23] On 22 June 2023, Mr Wang filed an appeal from Wang No 3. That appeal's file number is C/2023/25.
• [24] The orders sought on the Wang No 3 appeal are described in the application to appeal as:

"1. Leave to appeal on grounds other than those in s 557(1) and pursuant to s 557(2) of the Industrial Relations Act 2016 (Qld).

1. The appellant have leave to adduce fresh evidence in support of the appeal.
2. The Industrial Court allow the appeal from the decision of the learned Commissioner who confirmed the Respondent decision dated 2 December 2021; Overturn that decision and vacate orders made by the Queensland Industrial Relations Commission dated 5 June 2023.
3. The Industrial Court order the Respondent to pay the Appellant costs for this application and the application made to the Queensland Industrial Relations Commission."

"1. The Commissioner erred in failing to appropriately consider the interests of persons immediately concerned with the appeal, pursuant to s 531(3) of the Industrial Relations Act 2016(Act 2016) in relation to equity, good conscience and the substantial merits of the case required. Because on the Commissioner decision dated 5 June 2023, the Commissioner failed to appropriately consider the following are facts:

a). On 28 August 2019, the Appellant sustained a significant work-related injury; the majority injuries are left foot, left ribs and Trapezius injury.

b). On 20 May 2020, Dr. Angus Nicoll, the Independent Medico-legal Expert assessed that the Appellant's injuries sustained on 28 August 2019 resulted 8% of Whole Person permanent impairment.

c). On 30 June 2020, Evelyn Ross, the Occupational Therapist assessed that the Appellant is precluded for pursuing further work as Motor Mechanic and Service Engineer which the Appellant experienced or trained because of the injuries sustained on 28 August 2019.

d) On 18 March 2021, the Appellant's work-related injuries were deteriorated and Dr. Robert Pozzi performed a surgery for the Appellant's left foot, which resulted the Appellant in total or significant incapacity for work for more than 12 months.

e). On 21 April 2021, the Appellant obtained the 1st "Work Capacity Certificate" which issued by Dr. Yelena Krasnova, and the certificate lodged to Workcover Queensland on 23 April 2021.

f). On 12 August 2021, WorkCover Queensland has accepted the Appellant's application for compensation for Lisfranc injury to left foot, left rib injury, Trapezius injury they sustained on 28 August 2019. In addition, Workcover Queensland accepted liability from 26 March 2021.

g). On 21 August 2021, the appellant lodged "Application for claim review" to the Respondent to review to waive the limited of period for starting pay compensation, which relevant the s 131(2) and the s 141(5) of the Workers' Compensation and Rehabilitation Act 2003(Act 2003).

h). On 2 December 2021, when the Respondent made a decision and added s 131(1) of the Act 2003 to reject the Appellant's Workcover compensation, the Appellant was still in total incapacity for work.

1. On 7 July 2022. The work-related injuries resulted the Appellant did the left foot surgery again and it resulted the Appellant in total or significant incapacity for work for some months again.

j). Until to the date of the hearing on 8 March 2023, the Appellant's work-related injuries:

1. There still are some percentage of permanent impairment after the surgery.

1. The Commissioner erred in failing to appropriately consider the Appellant's Affidavits as evidence, pursuant to s 531 (2) of the Act 2016.
2. The Commissioner erred in failing to determine that the Appellant satisfied the s 131(5) of the Act 2003.
3. The Commissioner erred in failing to appropriately consider the evidence which provided by Dr. Robert Pozzi and make a decision in favour to the Appellant.
4. The Commissioner erred in failing to determine that the Respondent provided untrue statements in the Respondent's submission.
5. The Commissioner erred in failing to consider the evidence, which provided by Queensland Police Service according to the Attendance Notice which the Commission approved on 20 Feb 2023.
6. The Commissioner erred in failing to determine that Maurice Blackburn Lawyers did not comply the Attendance Notice which Commission approved on 10 Feb 2023.
7. The Commissioner erred in failing to consider that the Respondent failed to provide the evidence to prove the Appellant's previous lawyers provided correct Workcover compensation legal advices to the Appellant.
8. The Commissioner erred in failing to allow the Appellant to provide some evidence in the hearing.
9. The Commissioner erred in failing to allow the Appellant to submit additional medical evidence at any time before or after the start of the hearing.
10. The Commissioner erred in failing to allow the Appellant to correcting defects in proceedings at any time before or after the start of the hearing.
11. The Commissioner erred in failing to determine that the Respondent's decision was invalid and erred in the law.
12. The Commissioner erred in failing to appropriately consider to waive the s 131(1) and (2) of the Act 2003 due to mistake and a reasonable cause."

• [26] On 27 June 2023, Mr Wang filed an appeal from Wang No 4. That is appeal C/2023/26.
• [27] The orders sought in the Wang No 4 appeal are expressed in the application to appeal as:

"1. Leave to appeal on grounds other than those in s 557(1) and pursuant to s 557(2) of the Industrial Relations Act 2016 (Qld).

1. The appellant have leave to adduce fresh evidence in support of the appeal.
2. The Industrial Court order to overturn the cost order made by the Queensland Industrial Relations Commission dated 20 June 2023 and order the Respondent to pay the Appellant costs for this application and the application made to the Queensland Industrial Relations Commission."

"1. The Commissioner erred in failing to appropriately consider that the Respondent admitted that the Appellant sustained work-related injuries on 28 August 2019 and entitled to compensation from and on 28 August 2019 pursuant to the Act 2003.

1. The Commissioner erred in failing to appropriately consider the Appellant's 28 August 2019 injuries are compensable within the meaning of the Act 2003 and the Appellant received compensations for $4619 from Workcover Queensland in 2021 - 2022 tax year.
2. The Commissioner erred in failing to determine that the Appellant have lodged a valid and enforceable application for workers' compensation to Workcover Queensland on 23 April 2023.
3. The Commissioner erred in failing to appropriately consider that work-related injuries permanent reduced the Appellant's work and earning capacity, it caused the Appellant's life difficult for many years.
4. The Commissioner erred in failing to appropriately consider that since the Appellant's started a casual work on end of November 2022 until 12 June 2023, the Appellant's income and expenses just balance.
5. The Commissioner erred in failing to appropriately consider there are obvious living risk for the Appellant, because currently the Appellant is still in partial incapacity for work and the work-related injuries may deteriorate again and the Appellant's work is casual.
6. The Commissioner erred in failing to appropriately consider the Appellant's sufferings, the Work capacity, medical condition and permanent impairment/disabilities to exercise its discretion in favour to the Appellant for no cost order."

• [29] In both appeals, Mr Wang seeks to adduce evidence that was not before the Commission. Applications were filed by Mr Wang on the appeals on 27 July and 4 August 2023. Those applications sought information and documents, and other orders. Those applications came before Vice President O'Connor on 9 August 2023 and Mr Wang withdrew both.
• [30] Despite Mr Wang's withdrawal of the applications which came before the Vice President, it became apparent that Mr Wang sought to adduce further evidence on the appeals and also wished to take further steps before the hearing of the appeals.
• [31] On 7 February 2024, I made orders that Mr Wang identify the further evidence sought to be adduced and explain how the evidence was relevant to issues on the appeal. Mr Wang was also directed to identify any further steps that ought to be taken before the hearing of the appeals. Those directions were complied with.
• [32] The matter came before me on 30 July 2024 to determine the application to adduce further evidence and to determine what further steps (if any) needed to be taken. On that day, the Regulator's counsel called Kim Louise Cavanagh, who is a solicitor and director of Hede Byrne and Hall, Lawyers of Toowoomba. They acted for WorkCover. She identified affidavits that she had sworn and she was made available for cross-examination by Mr Wang. He cross-examined her. I shall refer to her evidence later.[16]
• [33] Before turning to consider the admission of the further evidence, it is necessary firstly to consider what was decided in Wang No 3 and then identify the new evidence sought to be led. I do not intend to analyse Wang No 4. The cost orders made in Wang No 4 follow the event of Wang No 3. The further evidence, if admitted, would need to be relevant to the matters decided in Wang No 3, and if so, would then be admitted on Wang No 4, the appeal from which will no doubt primarily be determined by the outcome of the appeal from Wang No 3.

• [34] Deputy President Merrell directed himself as to the nature and extent of the review to be undertaken by the Commission on an appeal from a review decision made by the Regulator. He followed Church v Simon Blackwood (Workers' Compensation Regulator)[17] which he took as authority for the following propositions:

(a) the review by the Commission was one that is conducted de novo; and

(b) what is heard "de novo" are the issues which were before the Regulator.

(a) Mr Wang relied on ss 131(5), 131(6) and 36A of the WCR Act to ground his appeal seeking a waiver of the time limit prescribed by s 131(1);

(b) as Mr Wang did not rely on either ss 131(5) or 36A of the WCR Act in his review to the Regulator, the only issue before the Regulator was whether the time for lodgement of the claim for compensation should be waived by force of s 131(6);

(c) as Mr Wang did not seek to rely upon s 131(5) in the review by the Regulator, s 131(5) was not in issue before the Commission; and

(d) Mr Wang sought to rely upon s 36A but as that was not raised in the review by the Regulator, consideration of it was also not in issue before the Commission.

• [36] Section 131(5) was referred to by the Regulator in the review reasons. However, the Regulator mentioned a CTP insurance medical certificate issued by Dr Mulcahy on 29 August 2019 as excluding any reliance upon s 131(5).
• [37] Section 36A of the WCR Act provides:

(a) is diagnosed by a doctor after the commencement of this section as having a latent onset injury; and

(b) applies for compensation for the latent onset injury.

(2) The following questions are to be decided under the relevant compensation Act as in force when the injury was sustained -

(a) whether the person was a worker under the Act when the injury was sustained;

(b) whether the injury was an injury under the Act when it was sustained.

(3) Section 131 applies to the application for compensation as if the entitlement to compensation arose on the day of the doctor's diagnosis.

(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. ..." (emphasis added)" (emphasis added)

• [38] Section 36A raises the notion of "latent onset injury". In such a case, the date of injury, and, therefore, the date from which time begins to run under s 131(1) is the date of diagnosis of the injury.
• [39] The term "latent onset injury" is defined in the WCR Act as "means an insidious disease".[18]
• [40] The Deputy President held that, in any event, s 131(5) did not avail Mr Wang. Mr Wang's case under s 131(5) was that he was assessed as totally or partially unfit for work by General Practitioner Dr Krasnova on 21 April 2021. The application was lodged two days later, well within the 20 day time limited by s 131(5)(a).
• [41] Section 131(5) raises discretionary considerations. The subsection provides that an insurer "may waive subsection (1)" where the claimant has lodged the application for compensation within 20 business days "after the first assessment" that the injury has resulted in total or partial incapacity for work. The Deputy President observed that by the time of Dr Krasnova's certificate, Mr Wang had Dr Moore's for about 18 months. The reference to Dr Moore's certificate is probably a mistaken reference to Dr Mulcahy's[19] which was witnessed by Dr Moore. The certificate opined him to be unfit for work until 2 September 2019. Dr Pozzi had operated on Dr Wang's foot in March 2021.[20]
• [42] Mr Wang's case before the Regulator under s 131(6) was that he had failed to lodge the claim within time due to "mistake"[21] or "a reasonable cause".[22]
• [43] Mr Wang's submissions to the Regulator in reliance upon s 131(6) and the Regulator's reasons for rejection of these submissions were stated by the Regulator as:

"I acknowledge your submission that your solicitor failed to act on your behalf, nor advise you of your potential workers' compensation rights. However, I am unable to substantiate on the evidence available to me that this in fact occurred. There is no evidence available to suggest you were provided with incorrect legal advice and relied on that incorrect advice, nor that any steps were taken to lodge an application by either yourself or a legal representative, that may amount to a mistake. Further, I am unable to substantiate that any omission of your previous legal representative to advise you of your workers' compensation rights was in fact the reason for you not lodging the application within time. I consider there are multiple reasons you have submitted as causing the delay in lodging your application and accordingly, given the definitions set out in the case law above, I am unable to substantiate that the delay in lodging your application was due to a mistake."

"I acknowledge your submission that you were unaware of the six month time period in which to lodge an application under section 131(1) of the Act. The decision in Mayne Group Limited v Q-COMP is authority for the proposition that a workers' unawareness as to their rights or obligations under the Act does not amount to a reasonable cause for a failure to lodge an application within the required time period.

I also acknowledge your submission that you reported your injury to your employer and that your employer failed to report an injury to WorkCover, in accordance with section 133 of the Act. I have had regard to the decision in Alan Russell Wiley v Q-COMP where it was considered that an omission of the employer to inform WorkCover of an injury does not take away the worker's responsibility to act in a reasonable time, unless there are circumstances beyond the worker's control which make the worker incapable of lodging a claim for compensation. I do not consider the available evidence proposes a circumstance beyond your control which made you incapable of lodging an application within the relevant time period.

Further, I consider the case law suggests it is the worker's responsibility to take action to apply for workers' compensation in accordance with the six month time period under section 131(1) of the Act. I am satisfied a decision was made to manage your injury outside of the workers' compensation scheme. Accordingly, I do not consider the available evidence suggests a circumstance existed that amounts to a reasonable cause for the six month time limit to be waived under section 131 (6) of the Act.

Upon consideration of the evidence in its entirety, I am not satisfied a reasonable cause has been established to waive the time period for applying for compensation. Therefore, I have determined the failure to lodge your application within the six month time period was not due to a reason set out in section 131(6) of the Act."

• [44] The Regulator rejected Mr Wang's submission that there was a relevant "mistake"[23] or that "reasonable cause"[24] was made out either by Mr Wang's ignorance of the six month time period or that Mr Wang's employer had failed to report the injury.
• [45] The Deputy President summarised Mr Wang's case on review to the Commission on s 131(6)(a) and (c) as follows:

"• 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;

• 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;
• 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;
• 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;
• 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;
• 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;
• he did not realise the seriousness of his injury until he was assessed and operated upon by Dr Pozzi in March 2021;
• 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;
• 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; 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."[25]

• [46] The Deputy President rejected all those claims.[26] He found that the doctors at Cairns Hospital had no obligation to advise either Mr Wang or the authorities of the possibility of a claim.[27] Similarly, there were no obligations upon the General Practitioners or Dr Pozzi to advise Mr Wang or the authorities of the possibility of a claim.[28]
• [47] The Deputy President observed that Dr Pozzi gave no evidence that Mr Wang had told him he was injured while travelling home from work[29] and there was no evidence that any of the General Practitioners were told that the injury occurred while Mr Wang was returning home from work.[30]
• [48] The Deputy President found that there was no evidence that Mr Wang's employer was told that the accident occurred while Mr Wang was travelling from work[31] and that, in any event, the failure of the employer to discharge its obligations under s 133 did not excuse Mr Wang of his obligations to make his claim within time.[32] The Deputy President found no evidence that Maurice Blackburn were told by Mr Wang that the accident occurred while he was returning home[33] from work and Mr Wang himself accepted that he told Maurice Blackburn that he was injured standing on a street corner.[34]
• [49] A complaint made in October 2020 to the Queensland Legal Services Commissioner against Maurice Blackburn was a detailed complaint but did not allege that Maurice Blackburn had failed to advise Mr Wang of his rights to make a Workers' Compensation Claim.[35] Magoffin Law was only instructed by Mr Wang in February 2021; well after the time limit expired.[36]
• [50] The Deputy President found that even if Mr Wang did not realise the seriousness of his injury until he was operated on by Dr Pozzi, that fact had no causal connection with his failure to make his application on time because he emailed Magoffin Law on 15 April 2021 and stated that he had no idea that he could make an application for Workers' Compensation until he read the Act.[37]
• [51] As to the claims based on Mr Wang's mental state, the Deputy President observed that there was no medical evidence to support those claims[38] and Mr Wang was in a sufficient state to give instructions to Maurice Blackburn.[39] If Mr Wang did not know until April 2021 how to obtain a Work Capacity Certificate and make a WorkCover claim that was, the Deputy President held, a mistake of law on Mr Wang's behalf and ignorance of the law is not "reasonable cause".[40]

• [52] As explained in Turay v Workers' Compensation Regulator,[41] an appeal from the Commission about a decision made under the WCR Act lies pursuant to Chapter 13 of the WCR Act, not Chapter 11 of the Industrial Relations Act 2016,[42] except to the extent that provisions of the IR Act are incorporated by s 561(2) of the WCR Act.
• [53] Section 561 of the WCR Act provides:

(1) A party aggrieved by the industrial magistrate's or the industrial commission's decision may appeal to the industrial court.

(2) The Industrial Relations Act 2016 applies to the appeal.

(3) The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.

(4) The court's decision is final." (emphasis added)

• [54] It is unnecessary to consider what powers are bestowed upon the Court through s 561(2) on appeals under the WCR Act as s 561(3) clearly gives a discretion to receive additional evidence on appeal.
• [55] The common law drew a distinction between "fresh evidence" and "new evidence". Fresh evidence is that which was either not in existence at the time of the trial or, if it was in existence, was not reasonably discoverable by the party seeking to lead it on appeal.[43] A relatively broad discretion arises for the admission of fresh evidence.
• [56] "New evidence" is evidence which does not comply with the two prerequisites to qualify as "fresh evidence" but where its admission is necessary in the interests of justice, usually because the evidence is likely to change the result. In such a case, the evidence may be admitted.[44]
• [57] As already observed, the discretion here is a statutory one by force of s 561(3). The width of the discretion is determined not by common law principles but upon the proper construction of the provision and it being exercised consistently with its statutory purpose.[45]
• [58] However, the fact that there is statutory discretion to admit further evidence on appeal does not extinguish the policy considerations behind the reluctance of the common law to allow the widening of issues on appeal. That was the view of President Hall in Regan v WorkCover Queensland,[46] where his Honour observed:

"I accept that the statutory power to hear 'additional evidence' is constrained only by the proper exercise of discretion and is not to be exercised only in those cases in which 'fresh evidence' would be received in a civil matter at common law, compare Chalk v WorkCover Queensland [2002] QIC 100; (2002) 171 QGIG 327 at 328. However, I can see no reason why the accumulated wisdom of the common law should be ignored. Having regard to the desirability of finality in litigation, the upset and cost of litigation after a trial is completed and the need to encourage litigants to prepare for trial in a proper way, I can see no justification for exercising the statutory discretion to let in additional evidence which might, by the exercise of reasonable diligence, have been discovered by the appellant prior to the trial."

• [59] Section 561(3) does not admit of a set principles that evidence ought not be admitted on appeal from a decision of the Commission on a Workers' Compensation matter unless the evidence is fresh. However, I accept that the public policy considerations identified in Regan are factors which assist in informing the exercise of the discretion under s 561(3) of the WCR Act.[47]

• [60] Much of the further evidence seems to be in support of Mr Wang's claims under s 131(5) and 36A. As earlier observed, the Deputy President ruled those grounds for waiver of the time limited by s 132(1) were not for consideration by the Commission on the authority of Church v Simon Blackwood (Workers' Compensation Regulator).[48] In my view, there may be some doubt about the correctness of that ruling.
• [61] Mr Church sought to claim compensation for a back injury sustained during his work as a spray painter. WorkCover refused to waive the time limit for making a claim under s 131(1) of the WCR Act.
• [62] On review, the Regulator decided:

(a) the time limit should be waived so that the claim was valid and enforceable; but

(b) Mr Church had not sustained an "injury" within the meaning of s 32 of the WCR Act.[49]

• [63] Mr Church appealed the Regulator's decision to the Commission. On that appeal the Regulator sought to defend its decision to reject the claim on the basis that it had been made out of time. The Commission accepted that submission and rejected the appeal. Mr Church then appealed successfully to this Court.
• [64] On appeal, Martin P observed that on a hearing de novo the Commission sat in the position of the Regulator and decided the case afresh. There can be no doubt about that proposition. His Honour held "The ambit of such a hearing is determined by the case which was before the Regulator. It is also determined by any specific statutory provision which impinges upon the boundaries of the issue to be determined".[50]
• [65] The decision by the Regulator to waive the time limit, Martin P observed, became a decision of WorkCover and while, by s 549, a claimant may appeal that decision, an insurer cannot.[51] His Honour went on to find then that the "issue" taken on appeal to the Commission did not include any issue arising under s 131(1).
• [66] Church may not be authority for the proposition that a claimant who only relied upon s 131(6) before the Regulator cannot rely upon ss 131(5) and 36A on appeal to the Commission. It is unnecessary to decide that issue now. I will, when considering the admission of further evidence on appeal, assume that Mr Wang could, both before the Commission and this Court, rely upon ss 131(5) and 36A.
• [67] Mr Wang proposes to call further evidence from Dr Pozzi.
• [68] What is proposed to be lead from Dr Pozzi is that Mr Wang suffered neck injuries as well as left foot, left ribs and trapezius injuries, and that the neck injuries were accident related.
• [69] This evidence is said to have arisen after the Commission hearing in March 2023.
• [70] The evidence might be relevant to a claim for a latent offset injury pursuant to s 36A of the WCR Act. However, there is no report from Dr Pozzi. There is no particularisation of what evidence he will actually give. There is insufficient potential substance to justify admitting the evidence on appeal.
• [71] Mr Wang also intends to lead from Dr Pozzi that the incapacity which Mr Wang suffered in April 2021 "was as a result of his recovery from the left foot surgery and as a direct result of any injury he suffered on 28 August 2019". This relates to the findings at paragraphs [34] and [35] of Wang No 3:

"[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 and that on 18 March 2021, he had '... left foot Lisfranc fusion surgery'. Dr Pozzi confirmed that he conducted that surgery on Mr Wang's left foot on that date. Mr Wang then contends the '... surgery hugely changed the Appellant's working and life living circumstances.' 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.

[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), 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."

• [72] Dr Pozzi's evidence is, as can be seen from paragraph [35] of Wang No 3, made relevant by Dr Krasnova's Work Capacity Certificate, dated 21 April 2021. There is no report by Dr Krasnova. Mr Wang does not seek to call her on the appeal and so calling Dr Pozzi on this issue is pointless.
• [73] Dr Michael Breitkreutz would be called by Mr Wang to give evidence similarly to that proposed to be given by Dr Pozzi, namely that the neck injuries emerged after March 2023 and that the incapacity in April 2021 was a direct result of the injuries suffered on 28 August 2019. Again, there is no report of Dr Breitkreutz and no proper explanation of exactly what he would say in evidence about the neck injury. Any evidence he might give about the incapacity of Mr Wang in April 2021 relates to the Work Capacity Certificate issued by Dr Krasnova and there is no evidence from her.
• [74] Mr Wang complains that WorkCover failed to comply with s 544 of the WCR Act and wishes to explore that in evidence on the appeal. Section 544 provides:

"544 Decision-maker must give information to Regulator

(1) The Regulator may, by written notice, require the decision-maker to give the Regulator -

(a) within 5 business days after receiving the notice -

(i) all relevant information and documents in relation to the application that is in the decision-maker's possession; or

(ii) the information asked for by the Regulator; or

(iii) if the Regulator believes on reasonable grounds that the reasons given by the decision-maker for the decision-maker's decision have not addressed the matters prescribed under a regulation for section 540(4) - reasons for the decision that address those matters; or

(b) within the period stated in the notice, any further information the Regulator needs to decide the matter.

(2) The notice may state the way the information, documents and reasons must be given.

(3) The decision-maker must comply with the notice.

(4) The decision-maker must pay the cost of obtaining the further information."

• [75] There are no particulars provided by Mr Wang as to how Workcover has failed to comply with its obligations under s 544.
• [76] As already observed, Ms Cavanagh was called and cross-examined before me on 30 July 2024.
• [77] Mr Wang established, through Ms Cavanagh, that WorkCover accepted Mr Wang's claim and that his employer was notified accordingly.[52] That fact is not contentious. The Regulator set aside that acceptance and it is the Regulator's decision which is the subject of the present appeal.
• [78] Mr Wang then established that his employer paid the claim excess to WorkCover.[53] The payment of the excess is irrelevant to the current appeal. The payment was a step that was taken in reliance upon WorkCover's decision before that decision was reversed by the Regulator.
• [79] Mr Wang established that a WorkCover officer, Sophia Dunnell, telephoned him on 5 May 2021.[54] Ms Cavanagh was aware of a note of that conversation. The note records Mr Wang's assertions that the injury occurred while he was travelling from work and explained that the delay in lodging the claim was as a result of bad advice from lawyers. Ms Cavanagh said that she had a full recording of the telephone conversation and that the note did not reflect all of it. She said that the recording was disclosed to Mr Wang on 23 March 2022 and also disclosed to the Regulator. At best, the conversation evidences a statement by Mr Wang which is broadly consistent with his case. The recording was available to him before the hearing before the Deputy President.
• [80] Mr Wang then established in cross-examination of Ms Cavanagh that WorkCover received a request for attendance notice, issued on 19 January 2024.[55] Ms Cavanagh said that to the best of her knowledge WorkCover had complied with the attendance notice.
• [81] There were then assertions made by Mr Wang that he had attempted to tender documents to the Deputy President, who had refused. Whether it was appropriate or otherwise to refuse to receive the documents is a question as to their admissibility, not whether the evidence is fresh or otherwise.
• [82] There are no documents or categories of documents that have been identified as having not been disclosed by WorkCover to the Regulator.
• [83] Mr Wang submits that an investigating police officer, Lincoln Pullar, should be called to give evidence. It is anticipated that he would produce documents relevant to his investigation of the accident on 28 August 2019. It has not been made clear by Mr Wang what evidence the police officer would give, except that he had conversations with Mr Wang where Mr Wang said things consistently with the injury being suffered in the course of his employment.
• [84] Mr Wang seeks to tender a report prepared by members of the ambulance service. He says that he attempted to tender the report to the Deputy President. If that is so and the failure to receive the evidence is a ground of appeal then the documents can be produced at the appeal and argument had as to whether the Deputy President ought to have accepted them into evidence.
• [85] There is, in my view, no utility in the receipt as further evidence of anything that Mr Wang has identified.

• [86] Mr Wang says that various further steps should be taken before the appeal can be heard. He submitted that documents which were produced by the Queensland Police Service should be added to the "exhibit list". This is in effect an application to adduce further evidence. It is said by Mr Wang that the Deputy President refused to admit the documents.
• [87] As already observed, if the Deputy President refused to admit admissible evidence then that may be a ground argued at the appeal.
• [88] Secondly, Mr Wang says that documents produced by Maurice Blackburn Lawyers pursuant to a notice to produce should be added to the exhibit list. This complaint is of the same nature as the first and the answer is the same.
• [89] Thirdly, Mr Wang wants the "initiating documents" added to the exhibit list of the appeal. The application to appeal and the written submissions will be before the Court on the hearing.
• [90] Mr Wang's submission that the Regulator has had sufficient time to answer the grounds of appeal is misplaced. The Regulator has filed written submissions answering the appeal.
• [91] Mr Wang considers that various documents which were before the Commission namely lists of documents and statements of facts and contentions should be before the Court on appeal. They will be.
• [92] Mr Wang says that all documents tendered to the Commission ought to be before the Court on appeal. That is correct, but Mr Wang considers that exhibit 3 is incomplete. Mr Wang can take up with the Registrar any problems concerning the management of the exhibits.
• [93] Lastly, Mr Wang says that exhibits 4, 5 and 6 ought not to have been admitted. Provided that alleged error is reflected in a ground of appeal, argument about that can be had at the hearing of the appeals.

• [94] The application to adduce further evidence ought be dismissed. As no further steps need to be taken, the parties should liaise with the Registrar to obtain a date for the hearing of the appeal.
• [95] I will reserve the costs.
• [96] It is ordered that:
  1. The application to adduce evidence on appeal which was not before the Commission is dismissed.
  2. The Registrar shall allocate a date for the hearing of the appeals.
  3. Costs reserved.

[1] Workers' Compensation and Rehabilitation Act 2003; s 35(1).

[2] Workers' Compensation and Rehabilitation Act 2003; s 131(1).

[3] Section 131(3) does not apply.

[4] Section 131(1), (4), (5) and (6).

[5] W_o_rkers' Compensation and Rehabilitation Act 2003, Chapter 13, Part 2.

[6] W_o_rkers' Compensation and Rehabilitation Act 2003, Chapter 13, Part 3, Division 1.

[7] Industrial Relations (Tribunals) Rules 2011, Part 2, Division 1, Subdivision 7, r 61.

[8] Wang v Workers' Compensation Regulator [2023] QIRC 071.

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

[12] Wang v Workers' Compensation Regulator (No 2) [2023] QIRC 163 at [3] and [4].

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

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

[15] Wang v Workers' Compensation Regulator (No 4) [2023] QIRC 187.

[16] See paragraphs [76] to [80] of these reasons.

[17] [2015] ICQ 031.

[18] Workers' Compensation and Rehabilitation Act 2003, s 7 and Schedule 6.

[19] See paragraph [36] of these reasons.

[20] Wang v Workers' Compensation Regulator (No 3) [2023] QIRC 164 at [34] and [35].

[21] Section 131(6)(a).

[22] Section 131(6)(c).

[23] Section 131(6)(a).

[24] Section 131(6)(c).

[26] Wang v Workers' Compensation Regulator (No 3) [2023] QIRC 164, shown by the various headings appearing between paragraphs [47]-[97].

[27] Wang v Workers' Compensation Regulator (No 3) [2023] QIRC 164 at [48].

[41] [2023] ICQ 13.

[42] Workers' Compensation Regulator v Glass [2020] QCA 133; (2020) 4 QR 693.

[43] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 674-676; and Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 516-517.

[44] R v Young (No 2) [1969] Qd R 566; and see generally, the judgment of Jerrard JA in R v Katsidis; ex parte Attorney-General (Qld) [2005] QCA 229 at [10]- [19].

[45] Shrimpton v The Commonwealth [1945] HCA 4; (1945) 69 CLR 613 at 629-630; and Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [69]-[70] per Kirby and Callinan JJ in dissent on other points.

[46] (2003) 174 QGIG 1009.

[47] Regan was followed in Kim v Workers' Compensation Regulator [2019] ICQ 14 at [18]; in turn following Carlton v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 029 at [4]; and Local Government Association of Queensland Ltd v Queensland Services Industrial Union of Employees and Ors [2017] ICQ 002 at [13].

[48] [2015] ICQ 031.

[49] The decision that Mr Church had not sustained an "injury" was made after the decision to waive the time limit. The claim had been remitted to WorkCover to determine whether an "injury" had been suffered, WorkCover decided it had not, and the Regulator affirmed that decision on review.

[52] Transcript, 30 July 2024, T1-14; and Exhibit 12.

[54] The file note made by Ms Dunnell is Exhibit 16.