WCRA: NOA’s and failure to assess all injuries

Costello v Queensland Rail [2014] QSC 83

The failure to refer both psychiatric injuries to be assessed by the MAT resulted in McMeekin J finding because of the nature of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) it could be set aside:

[26] I say that for three reasons. First, the legislation mandates a referral – there is no decision to make. The referral is required to be made if an insurer so decides or a worker asks the insurer to refer: s 179(1)). Second, the time limits contemplated in the appellate process suggest a more formal notification than a mere omission from a Notice. Those time limits are described as: “within 20 business days after the appellant receives the notice of the decision stating the reasons for the decision.” (s 550(1)(b)). Third, there is no express obligation under the legislation that I can find to give the worker the notice of the referral. There is an obligation to exchange “relevant documents” under s 510C. That term is defined in s 499, albeit in inclusionary terms, but it does not include the notice of referral itself.

[27] There is no suggestion here that QR reached a view that it should not refer the depressive condition or communicated any such decision to Mr Costello. It appears to have been an omission. So neither party – QR nor the worker – thought that QR was making any decision under Chapter 3 or 4. Rather each thought that QR was following the guidelines laid down in those chapters. Hence Mr Costello was not put on the alert by the formal notification of a decision. At best his ability to protect his rights turned on him being astute enough to realise that the notice of referral – a notice that QR seems not obliged to provide – omitted one of his two conditions, and then lodge a timely appeal.

[28] The absence of any avenue for relief is against the submission that the court’s jurisdiction to grant declaratory relief was intended to be ousted. Further, as mentioned, once the decision of the MAT is made there is no appeal from that. A review is not available under s 186 – see s 186(1)(a). And s 515 applies and provides:

“Finality of tribunal’s decision

(1) Either of the following decisions of the tribunal is final and can not be questioned in a proceeding before a tribunal or a court, except under section 512—

(a) a decision on a medical matter referred to the tribunal under section 500;

(b) a decision under section 514(1).

(2) Subsection (1) has no effect on the Judicial Review Act 1991.”

[29] The decision here falls within s 515(1)(a). It is not an attractive proposition to assert that a conclusive decision adversely affecting a worker’s rights to compensation arrived at in defiance of the legislation, and without any certainty of a right of appeal at any interlocutory stage, is not amenable to the court’s jurisdiction.

[30] The point that has troubled me is that there is a procedure in place to correct the error that seems to have occurred here – an application to the court for a statutory order of review of the decision of the MAT under the Judicial Review Act 1991 (Qld).

[31] As it happens grounds do appear on which Mr Costello could engage the Judicial Review Act. Section 20(2)(d) of that Act provides that an application for a statutory order of review to set aside a decision may be made where “the decision was not authorised by the enactment under which it was purported to be made.” It seems to me, given the finality of the MAT decision and the importance of the election contemplated upon the issuing of the Notice of Assessment which depended upon that decision, that a decision purporting to assess permanent impairment is not authorised which does not bring into account all known injuries. I observe that this Court has accepted that a failure to exchange relevant documents before a tribunal hearing in accordance with the legislation – a matter much less fundamental than ignoring a known injury – has resulted in a declaration that the decision of the tribunal is invalid on this ground: De Ross v General Medical Assessment Tribunal & Anor.[9]

[32] The application here did not seek to set aside the decision of the MAT but rather the Notice of Assessment that was consequent upon it. I was not told why. Perhaps the time limit in s 26(2) of the Judicial Review Act was seen as a difficulty. But it was not suggested that prejudice, either through elapsing of time or otherwise, was a relevant consideration here.

[33] I have concluded that the fact that there might be alternative remedies – and one possible remedy under an application for a statutory order of review may have been a declaration concerning the Notice of Assessment – should not result in the court declining the relief sought. Effectively that would be to insist on form over substance.

[34] No discretionary consideration was identified, apart from the comprehensiveness of the appellate and review procedures contained in the Act, that would justify declining relief. While that can be a relevant consideration, the scheme is not as comprehensive as QR contends and it does not overcome the significant unfairness, or potential unfairness, to Mr Costello. No issue of cost, convenience or delay impinges on the decision in favour of QR.

[35] In my view the Notice of Assessment of Post Traumatic Stress Disorder given by the respondent to the applicant and dated 11 September 2013 is invalid and Mr Costello is entitled to the declaration that he seeks. That has the result that he has received a lump sum compensation to which he is not now entitled. Presumably that can be dealt with as an advance under s 178A of the Act but I will hear the parties on that.

However, McMeekin J did not come to the same conclusion in respect of physical injuries, which were referred, but the doctor did not assess all the injuries, because alternative avenues of recourse were available to the worker:

[45] The considerations relevant to the jurisdictional issue here differ from those relevant to the psychiatric injuries in that Mr Costello had a right to review the assessment if he disagreed with it: s 186(2). He had 20 business days to do so and did not. To the contrary he accepted it.

[46] QR argues that as well Mr Costello had a right of appeal to an industrial magistrate under s 548. The accuracy of that submission turns on whether the timing of the issuing of a Notice of Assessment is a “decision under Chapter 3 or 4”: s 548(b). While the distinction might be a fine one I perceive a difference between a decision on the timing of a notice and a decision on inclusion of an injury in a referral notice which I discussed above. I think that a decision on timing is appellable. One can well imagine disputes about whether there was more than one injury arising from the one event and decisions having to be made. Hence there was a right of appeal but no appeal was brought within the 20 business days allowed.

[47] So the considerations supporting QR’s argument here are stronger. But I am not persuaded that they are sufficiently strong to justify an implication that the court’s jurisdiction is ousted. One consideration is that it would be artificial to hold that the court’s jurisdiction to grant declaratory relief is unaffected in relation to one question arising under Chapter 3 or 4 of the legislation (as I have just found) but impliedly removed in respect of another. While the intersecting web of reviews and appeals provides a stronger argument here it is not sufficient in my view to displace the usual position that the Court can declare the rights of citizens.

[48] However the availability of reviews and appeals is relevant to the exercise of the discretion. The observations of Walsh J in Forster v Jododex Australia Pty Ltd[10] are often cited in situations akin to this one:

“In my opinion, when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute.”

[49] Mr Costello did not identify “some special reason for intervention”.

[50] The cogent point made by QR is that the Act provides for strict time limits in the exercise of those rights of review and appeals. To make a declaration now adverse to QR would have the effect of avoiding those time limits completely, time limits intended to have substantive effect on the rights of workers and insurers.[11] There is no provision for any extension of those time limits. As well the reviews and appeals are directed to be carried out by designated persons (eg an industrial magistrate) who would be expected to have some familiarity with the issues that typically arise. There is no particular complexity in these issues requiring the attention of this Court.

[51] Further s 237 demonstrates that the legislature expected there to be cases where injuries were overlooked in the assessment process. Presumably the legislature had in mind injuries that subsequently came to light rather than injuries that were known and ignored. The legal effect is the same. Specific provision was made to permit damages claims to proceed but nothing was said about compensation – save for the review and appellate procedures discussed.

[52] These considerations, it seems to me, provide a much stronger ground for an exercise of a discretion in favour of QR than in respect of the psychiatric injuries. There seems to me to be no significant countervailing circumstance.

Brisbane Barrister – David Cormack

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