Workers' Compensation Regulator v Scofield [2018] ICQ 3

Mr. R. F. Boal of counsel, instructed by HD Lawyers for the Respondent

[1] In this appeal, the Regulator seeks to have the order made by the Deputy President on 18 October 2017 set aside. Although the Deputy President's order is, strictly speaking, in the Regulator's favour, the circumstances of the case are such that it would be appropriate for a different approach to be taken. There are a number of difficulties that have arisen in the manner in which Ms Scofield's application has been considered.

[2] The difficulties commence with the decision of WorkCover to dismiss the application on the basis that there was no compensable injury. Before WorkCover, the employer had made it clear that it contested whether the employee had filed her application within the time limited by section 131 of the Workers' Compensation and Rehabilitation Act 2003.

[3] WorkCover recognised this in its reasons by making reference to the issue but then made no decision on that point. If an application is not filed within the time limit in section 131 or if filed outside the time and there is no waiver of the time limit under section 131(4) or (5) and there is no application for WorkCover to consider.

[4] It follows then that where an application is challenged on the basis that it was filed out of time, WorkCover must decide that point before proceeding to any other decision. The Regulator on the appeal from WorkCover decided the time limit point against the employee and did not proceed to consider whether or not there was a compensable injury.

[5] This raised, in the Deputy President's approach to the matter, a question of whether it could be inferred that WorkCover had decided the time limit issue. That was, with respect, an incorrect approach. The appeal to the Commission was from the Regulator's decision, not from the Regulator's reasons. The order made by the Deputy President impermissibly confines the employer on her appeal to the Commission. The order should not have been made. I set it aside.

[6] I direct that the Appellant in the Matter WC/2016/110 serve an amended notice of appeal within 14 days.

[7] I make the following orders:

1. The order of the Deputy President made 18 October 2017 is set aside.
2. The Appellant in the Matter WC/2016/110 (Yvonne Veronica Scofield) is to file and serve an Amended Notice of Appeal within 14 days.