Anderson, Susan --- "The Queensland Industrial Relations Commission: Should we go there?" [2019] PrecedentAULA 10; (2019) 150 Precedent 39

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THE QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

SHOULD WE GO THERE?

By Susan Anderson

This article has two purposes. One is to discuss the jurisdiction of the Queensland Industrial Relations Commission (QIRC, or the Commission) and its work generally. The other is to provide a statistical consideration of the cases heard in the QIRC between 1 July 2017 and 30 June 2018 in its workers’ compensation jurisdiction. The objective is to encourage lawyers to approach the QIRC with more confidence.

THE COMMISSION

The QIRC is headed by its president, Justice Glenn Martin of the Supreme Court.^[1] The QIRC derives its powers and functions from Chapter 11, Part 2 of the Industrial Relations Act 2016 (Qld).^[2] There are eight other members of the Commission in addition to Justice Martin: the vice-president,^[3] three deputy presidents and four industrial commissioners. The responsibility for the administration of the Commission has been delegated by the president to deputy-president O’Connor since 13 October 2015.^[4] The members of the Commission exercise jurisdiction, powers and functions under the Industrial Relations Act 2016, the Workers’ Compensation and Rehabilitation Act 2003 (WCRA), the Anti-Discrimination Act 1999, the Public Service Act 2008, and other statutes.

ANTI-DISCRIMINATION JURISDICTION

During 2017/18 there were 104 complaints referred to the Commission by the Anti-Discrimination Commission Queensland (ADCQ) and four applications for exemptions from the Anti-Discrimination Act 1991 (Qld) for work-related matters. This represented a significant increase in the number of referrals compared with the previous year because the Commission’s jurisdiction with respect to work-related anti-discrimination claims only began in March 2017.

INDUSTRIAL AWARDS JURISDICTION

The Commission is also responsible for finalising the award modernisation process for workplace agreements. A large number of agreements were certified by the Commission in 2017/18.^[5]

PUBLIC SERVICE JURISDICTION

The Commission receives public service appeals under Chapter 7 of the Public Service Act 2008 (Qld). There has been a 300 per cent increase in the number of appeals filed this year over last year. The figure has risen from 73 to 284 appeals. The explanation for this is the temporary to permanent conversion scheme introduced by directive 08/17 temporary employment.

WORKERS’ COMPENSATION JURISDICTION

According to the annual report of the Industrial Court, the most significant area of the Commission’s workload continues to be appeals and review decisions of the Workers’ Compensation Regulator (the Regulator) under the WCRA. It is reported that ‘while those types of matters may only represent approximately 11 per cent of the total matters filed each year, they require a large amount of administrative attention and result in a hearing more often than any other individual type of matter.’

Workers’ compensation appeals

The Regulator is the body that reviews decisions taken by WorkCover Queensland and insurers with respect to compensation. Review decisions can be appealed to the QIRC by workers or employers who feel aggrieved by a decision. Section 550 of the WCRA gives the Commission jurisdiction to hear appeals from review decisions of the Regulator.^[6] The Commission reports that 243 workers’ compensation appeals were filed in the 2017/18 reporting year (255 appeals were filed in 2016/17 and 232 the year before).

Workers’ compensation claims

By the end of 2017, 98,581 claims for workers’ compensation had been lodged. The industry with the largest number of claims is manufacturing, followed by healthcare and social assistance and construction. Of the 98,581 claims, 4,344 were psychological and psychiatric injury claims. The largest type of claim was for strain and sprain, followed by diseases of the musculoskeletal system. 65.6 per cent of all claims were made by men.

Psychological and psychiatric claims were the only type of injury where females outnumbered males, with females accounting for 59.5 per cent of claims. The total number of decisions accepted under the scheme was 92.1 per cent. The lowest rate of acceptance is for psychological and psychiatric injuries at 37.1 per cent. A reason for the rejection rate of psychological and psychiatric injury claims is that workers cannot receive compensation for psychiatric injuries that arise out of or in the course of reasonable management action, because they are excluded from the definition of injury under the Act.^[7] In 2016-17, 92.6 per cent of the rejected psychological and psychiatric injury claims were rejected on this basis.

Section 32 of the WCRA provides:

‘(1) An injury is personal injury arising out of, or in the course of, employment if –

(a) for an injury other than a psychiatric or psychological disorder – the employment is a significant contributing factor to the injury; or

(b) for a psychiatric or psychological disorder – the employment is the major significant contributing factor to the injury.

(2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.

(3) Injury includes the following –

(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;

(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation –

(i) a personal injury other than a psychiatric or psychological disorder;

(ii) a disease;

(iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;

(ba) an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation;

(c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;

(d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;

(e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;

(f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.

(4) For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.’

Thus, the test for whether a psychiatric disorder meets the definition of injury in s32 of the WCRA is different than for physical injuries. For a psychiatric disorder, the employment must be the major significant contributing factor to the injury. For all other injuries, the employment need only be a significant contributing factor to the injury. Further, by s32(5) of the Act, an injury of a psychiatric nature may be excluded from the definition if it arose out of, or in the course of:

(a) ‘reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;

(b) the worker’s expectation or perception of reasonable management action being taken against the worker;

(c) action by the Regulator or an insurer in connection with the worker’s application for compensation.’

These are all difficult factual questions which do not arise in most physical injury cases. Naturally, these factual questions add to the complexity and cost of running one of these claims.

A worker and an employer are both able to dispute an insurer’s claim determination decision. Over a quarter (25.8 per cent) of rejected claims are disputed by either the employer or the injured worker. Scheme payments made between 2012 and 2017 are reported as stable, being in the vicinity of 1,329.3 million. Common law payments made up 30.9 per cent of those payments and statutory payment claims made up 69.1 per cent.

Average cost by injury type

Although psychological and psychiatric injury claims account for 2.7 per cent of all ‘time lost’ claims finalised, they are the most expensive, with an average finalised time lost claim of $50,556 in 2016/17. The average duration of a psychological or psychiatric injury claim was 153.3 days compared with the overall scheme average of 50.9 days. Psychological and psychiatric injury claims represent 7 per cent of common law lodgements. They represent only 4.4 per cent of statutory claim lodgements. That statistic must reflect the fact that offers at the end of the statutory claim process satisfy fewer claimants who have suffered psychiatric injuries.

Reviews of WorkCover decisions

In 2016/17, 2,820 review applications were received by the Regulator. Workers lodged 2,391 of those; 389 were lodged by employers. Of the 2,391 claims lodged by workers, over half of the applications received related to the insurer’s decision to reject the claim. Just over 14 per cent were lodged after the claim had been accepted and 16.4 per cent followed the cessation of the statutory claim.^[8] Of the applications finalised in the 2016/17 reporting period,^[9] 2,725 applications were decided, 96 were withdrawn and 200 cancelled.^[10] Of the decisions reviewed, 63.7 per cent of the decisions confirmed the original decision (1,736).

Appeals to the QIRC

For a number of years there has been a perception among lawyers that it is difficult to achieve success for workers appealing in the QIRC. That is largely based on the number of successful outcomes as compared with the number of trials run in the jurisdiction. When the success rate is weighed against the cost of running a QIRC trial and the recoverable costs, one might be forgiven for shying away. But a deeper analysis is needed before taking a step back.

In 2016/17, 255 appeals were lodged from these review decisions with the QIRC. Of these:

• 41 were decided at court;

• 126 were withdrawn or lapsed;

• 26 were conceded by the Regulator; and

• 1 was otherwise settled.

Of the 41 matters that were judicially determined in 2016/17, 31 cases were dismissed or struck out and ten cases were upheld in favour of the appellant.^[11] Thus, only 24 per cent of cases were successful for the appellant. That figure does not disclose whether the appellant was the employer or the worker.

The statistics for the 2017/18 reporting year have not yet been released, but we can see from the QIRC Annual Report that 243 workers’ compensation appeals were lodged in that period. An examination of the cases^[12] shows that 42 matters were judicially determined. To understand what this means for workers requires an examination of the cases.

In the 2017/18 period, over 40 per cent of workers were successful in QIRC appeals. In 25 of those appeals the worker was unsuccessful, whether they had lodged the appeal or not. In 17 of the trials the appeal was dismissed, but in four of those it meant that the worker was successful because the employer lodged the appeal.

Of the 17 trials where the worker was successful, 13 of them were worker instigated. A total of six appeals were filed by employers. Of the two appeals lodged by the employer where the employee was successful, one employee was separately represented and one was not. Legal representation in the Commission appears to make a real difference to the success of any appeal. Whether that is because of the presentation or because of the analysis in determining whether to run the matter – or both – is not clear.

The worker was represented in QIRC trials by solicitors with or without counsel in 29 cases.^[13] There were three cases where the worker was not represented, but was successful. In those cases, one was an appeal commenced by the worker and two by the employer. Thus, only one self-represented worker lodged an appeal and was successful. Being self-represented causes obvious difficulties for the worker, but a trial where the worker is self-represented also no doubt creates more work and uses more of the Commission’s time than when a lawyer appears.

Of the 25 appeals that were decided unsuccessfully for the worker, five of them were cases where the application had been filed substantially out of time without excuse. Those cases ought to be distinguished from the cases where the Commission is asked to decide whether the worker suffered an injury within the meaning of the WCRA. Twenty-one of the 42 trials included questions of psychiatric injuries – all but two were pure psychiatric injuries. Ten of the 21 appeals involving psychiatric injuries were successful. Of those successful trials, each one of the workers was represented by lawyers.

I have not compared the most recent period with earlier periods other than to say that the numbers of appeals and trials have not changed significantly. We learn from examining the cases that, as lawyers, we should not be put off by unexplained statistics. It is plain from looking at the figures from the workers’ compensation scheme that psychiatric injury cases are more expensive, take longer to decide, and are more often rejected by WorkCover and the Regulator. Therefore, it is no surprise that nearly half of all the cases decided in the QIRC workers’ compensation jurisdiction are psychiatric injury cases.

These cases are factually complex and require lawyers to have the best chance at success. On the face of these statistics, a worker represented by lawyers is at no disadvantage when lodging an appeal in the QIRC. From a lawyer’s perspective, there is no reason to avoid representing workers either in psychiatric injury cases or in the QIRC generally. So, in answer to the question of whether we, as lawyers, should go there, the answer is a resounding yes!

Susan Anderson is a barrister in private practice at the Queensland Bar. She practices in a range of areas including workplace injuries focusing in particular on psychiatric injuries, personal injuries generally, property and commercial work which includes while collar crime. Susan also practices in the anti-discrimination area. PHONE [phone].

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^[1] Justice Glenn Martin is also the president of the Industrial Court of Queensland.

^[2] A detailed outline of the roles and responsibilities as well as the activities of the QIRC can be found in the 2017/18 Annual Report of the President of the Industrial Relations Court Queensland.

^[3] Currently a vacant position as Dianne Linnane resigned in 2018.

^[4] An additional delegation was required to deputy-president O’Connor as a result of the new Industrial Relations Act which took effect on 1 March 2017.

^[5] Twenty agreements are reported in the annual report.

^[6] Appeals must be filed within 20 business days after the appellant receives the notice of the review decision.

^[7] Office of Industrial Relations, Queensland Workers’ Compensation Scheme statistics 2016-2017.

^[8] The remainder were lodged by employers and dealt with workers’ compensation policies.

^[9] These figures include applications filed in earlier reporting periods but not finalised in the 2016-17 period.

^[10] The remainder were not finalised in the reporting period 2016-17.

^[11] Ibid.

^[12] The published decisions are accessible on the Supreme Court Library website: <https://www.sclqld.org.au/caselaw/QIRC>.

^[13] In four cases a solicitor advocate appeared without counsel.