In the Supreme Court decision of Allwood v Sundin, Chung, Greaves & Anor  QCA 196 (10 September 2021), the appellant appealed against an order dismissing his application to review a decision under s505 of the Workers Compensation and Rehabilitation Act 2003 (WCRA).
The decision made by the Medical Assessment Tribunal (tribunal) was that the degree of the appellant’s permanent impairment – resulting from the first of two psychological injuries sustained in the course of employment – was 4%.
A document recording the decision was given to the appellant on 20 December 2018. Pursuant to section 26 of the Judicial Review Act 1991 (Qld) (the Act), any application for a statutory order for review was required to be made within 28 days after 20 December 2018, or within such further time as the court allowed. The appellant did not apply to the court until 14 October 2019 and therefore required an extension of time of nearly nine months. Ryan J, in the lower court, refused to extend that time and dismissed the application.
The appellant had lodged his first application for a workplace injury in July 2014, for stress/anxiety. He claimed the first injury arose out of conduct of his employer, between August 2008 and July 2014. He lodged a second application, dated 12 January 2015, for injuries described as an aggravation of acute depression and anxiety, intimidation and harassment. The appellant attributed the second injury to conduct of the employer, between July 2014 and January 2015.
Both claims went through a process of determination by both WorkCover and the regulator, but ultimately, WorkCover accepted both applications and referred each of them to the tribunal for a determination of the degree of permanent impairment. On the first injury, the tribunal provided a 4% impairment, and for the second, they provided a 20% impairment. Under section 20 of the Act, only a person who is aggrieved by a decision to which the Act applies, is entitled to apply for a statutory order of review. An aggrieved person is a person whose interests are adversely affected by a decision.
The appellant argued that, until he received the reports of two psychiatrists (Dr Chalk and Dr Dwyer) in August and September 2019 respectively, he was not aggrieved by the tribunal’s decision that he had only sustained a 4% whole person impairment (WPI) for the first injury. It was this argument that was rejected by the judge in the court below.
Appeal dismissed with costs.
The Court of Appeal said it cannot be accepted that the appellant was not “aggrieved” by the tribunal’s decision, with respect to the first injury, from the moment that decision was made. At the time of the appellant’s first injury, the WCRA (as it was at that time) only permitted a common law claim to be pursued if the worker’s level of impairment was more than 5% (commonly referred to as the Newman amendments). The appellant’s argument was that because the tribunal assessed the degree of permanent impairment for his first injury at only 4%, section 237 effectively extinguished his common law right to claim damages.
The Court of Appeal referred to the relevant medical reports, especially that of Dr Dwyer and Dr Chalk. Dr Dwyer was of the opinion that the appellant’s impairment was primarily caused by the first claim, and that the events subject of the second claim were merely exacerbating factors. Dr Dwyer thought that 80% of the impairment related to the first claim and only 20% to the second.
However, Dr Chalk, who had been engaged to provide a report with respect to the appellant’s second injury, was of the view that the tribunal had erred. Dr Chalk did not agree with the tribunal’s assessment relating to the first injury and expressed the view that the appellant suffered a major depressive illness, and he described a WPI of 17%.
The appellant argued that he was not aggrieved by the tribunal’s decision with respect to the first injury, because until he received Dr Chalk’s and Dr Dwyer’s reports in 2019, the only evidence he had about apportionment of the impairment between the two injuries was in the tribunal’s decision.
The Court of Appeal concluded that the appellant’s argument was misconceived. This was for the more fundamental reason that a person, such as the appellant, who was adversely affected beyond any effect on the public at large (by the legal or practical effect of an administrative decision under an enactment) is aggrieved by that decision for the purposes of section 20 of the Act.
The appellant was aggrieved in the relevant sense because he was deprived by the tribunal’s decision about the first injury of his legal right to claim common law damages for that injury. While the trial judge had found that some aspects of the appellant’s argument had merit (with respect to some aspects of the psychiatric impairment rating scale regarding the appellant’s employability), there was an absence of any explanation for the delay in applying, and that appeared to be a persuasive factor for the trial judge refusing an extension.
While the appellant pointed to the absence of prejudice if an extension of time was granted, the Court of Appeal held that the absence of any prejudice to the other party is not on its own sufficient to justify a grant or an extension of time.
The only evidence adduced by the appellant in support of his application for an extension of time, was an affidavit by his solicitor which merely exhibited documents relating to the appellant’s workers’ compensation applications, the various decisions relating to those applications and the reports and other documents referred to in the decision. No affidavit by the appellant was filed and the affidavit by the appellant’s solicitor did not provide any explanation for the delay.
The trial judge rejected the argument that the evidence which revealed the effect of the tribunal’s decision (on the appellant’s entitlement to bring a common law claim) was not available until the appellant received Dr Chalk’s report. There was nothing stopping the appellant’s lawyers from interrogating, or at least raising, the tribunal’s decision with Dr Dwyer within time.
Public interest fell in the favour of not encouraging delay in responding to administrative decisions, by allowing those acting for an appellant to be passive in response to a decision which plainly has an adverse effect upon the applicant. To extend the time in this case would be to ‘work around’ the time limit in the absence of any reasonable explanation for the applicant’s failure to comply with it.
The appellant’s lawyers did not have to wait for Dr Chalk’s report to discuss the tribunal’s assessment and apportionment with Dr Dwyer, and the appellant did not adduce any evidence as to why his lawyers did not discuss the tribunal’s assessment with Dr Dwyer soon after the tribunal delivered its decision.
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