Failure to appeal could be fatal for a worker’s claim, but has the door been left open

02 September 2020

The Workers’ Compensation and Rehabilitation Act 2003 (Act) provides an ‘intersecting web of reviews and appeals‘. Can a worker go behind that ‘intersecting web’ to seek a declaration that he/she sustained an ‘injury’ within the meaning of s32 of the Act? That was the issue for determination by Crow J in Van Der Berg vs Key Solutions Group & Anor [2020] QSC 262.

On 22 July 2013, Mr Van Der Berg lodged an application for compensation with WorkCover Queensland (WorkCover) for an injury he allegedly sustained in the course of his employment with Key Solutions Group (KSG). WorkCover accepted Mr Van Der Berg’s application for compensation. KSG applied to the Workers’ Compensation Regulator (Regulator) for a review of WorkCover’s decision to accept Mr Van Der Berg’s application for compensation. The Regulator set aside WorkCover’s acceptance of Mr Van Der Berg’s application for compensation. It returned the matter to WorkCover with directions.

After complying with those directions, on 23 January 2014, WorkCover ultimately rejected Mr Van Der Berg’s application for compensation. Mr Van Der Berg lodged his own review application with the Regulator against WorkCover’s rejection of his application for compensation. On 10 March 2014, the Regulator confirmed WorkCover’s decision to reject Mr Van Der Berg’s application for compensation.

On 24 January 2015, Mr Van Der Berg filed an appeal in the Industrial Relations Commission (IRC) against the Regulator’s decision of 10 March 2014. His appeal to the IRC was filed outside the time limit for the filing of an appeal. On 2 September 2015, the IRC refused the application to extend time. Mr Van Der Berg did not file an appeal to the Industrial Court (IC).

Almost three years later (on 28 July 2020), Mr Van Der Berg filed an application in the Supreme Court (Court) seeking various orders. One such order was a declaration that he sustained an ‘injury’ within the meaning of s32 of the Act.

In handing down his decision, Crow J agreed with the comments of McMeekin J in Costello v Queensland Rail [2015] 2 Qd R 296 that s134 of the Act, either by itself or in conjunction with the Act as a whole, was ‘insufficiently clear to lead to a conclusion that the jurisdiction of this court is ousted with respect to the decision as to whether or not an applicant has suffered an injury pursuant to Chapter 3 of the Act’. Crow J determined the Court had the jurisdiction to grant the declaratory relief sought by Mr Van Der Berg provided he was able to identify ‘some special reason for intervention‘, as referred to by Walsh J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421.

Crow J ultimately found Mr Van Der Berg could not identify ‘some special reason for intervention‘ by the Court (Mr Van Der Berg said special reasons for intervention were demonstrated by a combination of three factors, none of which Crow J found were sufficient to avail him of the declaratory relief sought).

Crow J said:

…the WCRA is comprehensive in its provisions to deal with the rights of an injured worker to compensation and statute has as (sic) “intersecting web of reviews and appeals” concerning the granting of rights or privileges which are dependent entirely upon statute…It is important that the special procedures laid down by the WCRA should be allowed to take their course and ought not to be displaced by the making of declaratory orders concerning the respective rights of parties under the statute, unless…there is a “special reason for intervention”.

This case is not one in which there is some special reason for intervention. Parliament has set out a detailed path in a comprehensive manner to determine the rights of injured workers under the WCRA. Its path is, as I have outlined above, the decision of the insurer, an internal review, a review by the authority, then an appeal to the Industrial Relations Commission, and further appeal to the Industrial Court.

Mr Van Der Berg was ultimately unsuccessful in his application. However, that was because the Court found there were no special reasons for intervention, not because the Court was unable to grant the declaratory relief sought. That is notwithstanding the detailed path that parliament has set out in a comprehensive manner to determine the rights of injured workers under the Act and/or the ‘intersecting web of reviews and appeals‘, which provides an appeal to the IC is final. Such appeal is not final if a worker is able to identify special reasons for intervention. In other words, the Court has confirmed a worker can go behind ‘the intersecting web‘ if there are special reasons.

This article was written by Tony Scott, Partner, Graeme Traves, Partner and Kyle Norton, Special Counsel

Tony Scott

Special Counsel | Brisbane


Subscribe to HWL Ebsworth Publications and Events

HWL Ebsworth regularly publishes articles and newsletters to keep our clients up to date on the latest legal developments and what this means for your business.

To receive these updates via email, please complete the subscription form and indicate which areas of law you would like to receive information on.

Contact us