Queensland Industrial Relations Commission confirms scope of jurisdiction

10 March 2021

The Queensland Industrial Relations Commission recently delivered a decision which looked at the scope of its jurisdiction in circumstances where new issues are identified and raised by parties on appeal.

In issue

  • The Queensland Industrial Relations Commission (QIRC) was concerned with the Workers’ Compensation Regulator’s decision to uphold a decision of WorkCover Queensland (WorkCover) to reject a worker’s application for compensation in respect of a psychiatric injury due to the worker lodging her application outside of the time frame prescribed by s31(1) of the Workers’ Compensation and Rehabilitation 2003 (WCRA).

The background

The worker lodged an application for statutory compensation on 24 November 2015 arising out of a psychological injury sustained in her employment, on or about 11 November 2015. WorkCover rejected the application on 9 March 2017, and the Workers’ Compensation Regulator (the Regulator) upheld WorkCover’s decision.

On 15 March 2017, the worker lodged a further claim for compensation for a psychological injury arising through her employment, stating the date of injury as 11 November 2015. The injury was described as an ‘aggravation of existing injury’ originally caused by the employer. The further application was lodged outside of the prescribed period of 6 months of the date of injury under s131(1) of the WCRA. By written decision dated 27 June 2019, WorkCover rejected the worker’s further application on the basis it arose out of the worker’s expectation or perception of reasonable management action against her. WorkCover did not refer to the s131(1) issue in its reasons for decision. WorkCover’s decision was again upheld by the Regulator.

The worker lodged appeals to the QIRC in respect of both of the Regulator’s decisions. The Regulator filed a cross-application in the QIRC for an order that the worker’s appeal be dismissed on the basis that the worker’s application for further compensation was not valid due to the s131(1) period. The Regulator’s appeal was considered in this decision.

The decision at trial

The QIRC was primarily concerned with whether the worker’s application for compensation being lodged outside the prescribed period was a matter capable of being the subject of further evidence and argument, given this issue had not been considered by the Regulator in its review decision. The key case in considering issue was Church v (Simon Blackwood) Workers’ Compensation Regulator [2015] ICQ 031, which concerned the decision of WorkCover to reject an application on the basis of it being lodged outside time.

The Regulator submitted that the decision in Church contemplated that the question of whether or not an application for compensation was brought within the time limit was a matter which could be the subject of further evidence and argument, despite it not being originally raised by WorkCover or dealt with in its reasons for decision.

Having regard to the decision of Martin J, President, in Church, it was determined that the ambit of the QIRC hearing is determined by the case that was before the Regulator. In other words, given the time limitation issue was not argued to the Regulator by WorkCover, it was not an issue that could be determined by the QIRC on appeal. To quote Martin J in Church, the lodging of an appeal to the QIRC does not ‘open the gates’ for both parties to appeal to request the QIRC to determine ‘any number of preliminary issues’. The QIRC’s jurisdiction, as contemplated by Martin J in Church, was in relation to making decisions on questions of fact that are the subject of evidence.

The worker sought a review of WorkCover’s decision to the Regulator that she did not have a compensable injury. Given this was the only issue being considered by the Regulator, the only issue that could then be reviewed by the QIRC was whether the worker had suffered a compensable injury within the meaning of the WCRA.

The QIRC also considered that because WorkCover and the Regulator had failed to consider the time limitation issue, it could be determined that it made an implied decision that the worker’s application for compensation was valid, and that the 6 month period was waived.

Implications for you

The decision indicates the importance of WorkCover and self-insurers under the WCRA to correctly identify all relevant issues when considering an injured worker’s application for compensation and delivering reasons for decision, given the limited jurisdiction of the QIRC.

Wicks v Workers’ Compensation Regulator [2021] QIRC 001

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