Workers’ Compensation Appeals in the QIRC: Gathering evidence and disclosing documents
This factsheet is for people who have appealed a decision of the Workers’ Compensation Regulator (the Regulator) in the Queensland Industrial Relations Commission (QIRC).
It sets out the types of evidence that may be helpful to show an entitlement to workers’ compensation. It also explains the process for exchanging copies of relevant documents with the Regulator.
This factsheet does not apply to employers who have appealed a decision of the Regulator.
In this factsheet, a reference to ‘the WCRA’ is a reference to the Workers’ Compensation and Rehabilitation Act 2003 (Qld), and a reference to ‘the Rules’ is a reference to the Industrial Relations (Tribunals) Rules 2011 (Qld).
- 1 The workers’ compensation appeal process in the QIRC
- 2 When is a person entitled to workers’ compensation?
- 3 Exchanging copies of documents with the Regulator
- 4 Getting legal help with your appeal
- 5 Contact us
The workers’ compensation appeal process in the QIRC
In your appeal, you will need to prove to the QIRC, on the balance of probabilities, that you are entitled to workers’ compensation. To do this, you will need to rely on factual and medical evidence about your injury and how it occurred.
The appeal is a fresh hearing. This means that your whole claim for workers’ compensation will be considered again by the QIRC, and the QIRC does not know, and is generally not concerned about, the previous conduct of the insurer (such as, WorkCover) or the Regulator.
When is a person entitled to workers’ compensation?
Generally, under s 108 of the WCRA, a person is entitled to workers’ compensation if they:
- are a ‘worker’; and
- have sustained an ‘injury’.
Chapter 1, Part 4, Division 3 of the WCRA provides that some people may be entitled to workers' compensation for an 'injury', even though they are not 'workers'.
Who is a ‘worker’?
Under s 11 of the WCRA, a ‘worker’ is a person who:
- works under a contract; and
- is an employee, for the purpose of assessing tax payable on an ongoing basis (‘pay as you go’ or ‘PAYG’ tax).
Proving that you are a 'worker'
It is not enough to simply believe that what you say is true, you need to be able to ‘prove your case’.
For more information about evidence and the need to ‘prove your case’ see our factsheet, Evidence and proof in civil proceedings. Please note that this factsheet refers to legislation and rules that apply in the Queensland courts, and which may not apply in the QIRC.
If needed, documents that may be helpful to prove that you are a ‘worker’ include:
- a contract of employment;
- correspondence between you and your employer about your role;
- regular payslips showing that:
- you were paid by a particular employer;
- your employer withheld PAYG tax;
- your employer made superannuation contributions on your behalf;
- you were accruing leave entitlements, such as annual leave, sick leave and long service leave;
- evidence that any tools or equipment are provided by the employer; and
- evidence that you perform work under the control or direction of your employer.
Schedule 2 Part 1 of the WCRA lists some specific additional circumstances where a person will be considered a ‘worker’ and able to claim workers’ compensation for an ‘injury’.
For example, a person is likely to be a ‘worker’ if they are employed by a labour hire company that arranges for that person to do work for another organisation, under an arrangement between the labour hire company and that other organisation.
Schedule 2 Part 2 of the WCRA also lists some specific people who are not ‘workers’, and so cannot claim workers’ compensation.
What is an ‘injury’?
Section 32(1) of the WCRA defines an ‘injury’ as:
- For an injury other than a psychiatric/psychological injury:
- a personal injury;
- arising out of or in the course of employment;
- where the employment was a significant contributing factor to the personal injury.
- For a psychiatric/psychological injury:
- a personal injury;
- arising out of or in the course of employment;
- where the employment was the major significant contributing factor to the personal injury.
However, under s 32(5) of the WCRA, a psychiatric/psychological injury will be excluded from the definition of ‘injury’ if it arose out of or in the course of:
- ‘reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
- the worker's expectation or perception of reasonable management action being taken against the worker;
- action by the Regulator or an insurer in connection with the worker's application for compensation.’
Certain conditions are included within the definition of an ‘injury’ under s 32(3) of the WCRA, for example an aggravation of a pre-existing physical injury if the aggravation arises out of or in the course of employment and the employment is a significant contributing factor to the aggravation.
Proving that you have suffered an 'injury'
To prove that you have suffered an ‘injury’ within the meaning of s 32 of the WCRA, you will need to provide factual evidence to show that what you say happened at work did in fact happen.
Documents that may be helpful to prove your case include:
- an incident report about what happened at work;
- statements from people who directly witnessed what happened at work; and
- notes made at the time of the incident/s at work, either by you to by someone that you reported the incident to, such as a colleague or doctor.
You will also need to provide medical evidence to show the causal link between what happened at work and your claimed injury. Documents that may be helpful here include notes made by, or a letter or report from, a doctor about your injury and how it was caused.
Some other considerations apply in relation to a claim for particular types of injuries, such as journey claims, under Chapter 1, Part 4, Division 6 of the WCRA, and industrial deafness, under Chapter 3, Part 3, Division 3 of the WCRA.
Exchanging copies of documents with the Regulator
It is important in the appeal that the parties know each other’s position and can identify the issues in dispute. For these reasons, the parties will need to exchange copies of any documents that are relevant to a matter in issue in the appeal. Shortly after you have lodged a workers’ compensation appeal with the QIRC, you will receive a document called a ‘Directions Order’ which requires you to, among other things:
- supply to the Regulator a list of documents in your possession or control that are relevant to a matter in issue in the appeal; and
- supply to the Regulator copies of those documents in your possession or control, and for which you have no legal claim to privilege. Usually, you will not need to supply the Regulator with copies of documents that it already has as part of the workers’ compensation claim or review process.
It is important to comply with these directions, and any others, within the time required.
This process of exchanging copies of documents relevant to a matter in issue in the appeal is called ‘disclosure’.
Preparing a list of documents
To prepare a list of documents, you will need to use ‘Form 23 – List of Documents’, available here on the QIRC website.
You will need to list all documents that you have, or that you could access, that are relevant to a matter in dispute in the appeal. This includes documents that may not be helpful to your case. For example, you may be required to disclose medical records that show that you have a pre-existing injury or other relevant health concerns.
Documents include things like audio or video recordings, and images.
Form 23 breaks the list of documents into two parts.
Part 1 is a list of the documents in your possession or control that are relevant to a matter in issue in the appeal, except those for which you have a lawful claim to privilege.
Part 2 is a list of the documents in your possession or control that are relevant to a matter in issue in the appeal, and for which you have a lawful claim to privilege.
Once you have prepared your list of documents, you will need to supply this list to the Regulator within the time required in the Directions Order. The Regulator will also supply you with its own list of documents.
Documents for which you have a lawful claim to privilege
The most common form of privilege claimed is ‘legal professional privilege’. This applies to documents that are communications with a lawyer for the purpose of obtaining legal advice, or documents prepared for use in litigation.
For example, if you have received written legal advice about your workers’ compensation claim, then this advice may be subject to legal professional privilege and could be included in Part 2 of the list of documents.
Documents that are subject to legal professional privilege are confidential, and do not need to be disclosed to the Regulator. However, if these documents have already been disclosed to a third party, then you may have waived any claim to privilege, and the documents may need to be disclosed.
Supplying copies of documents to the Regulator
Within the time required in the Directions Order, you will need to supply the Regulator with copies of all of the documents included in your list of documents, except those documents that:
- the Regulator already has as part of the review or appeal process; and
- are included in Part 2 of your list of documents because you have a lawful claim to privilege over them.
In the same way, the Regulator will need to provide you with copies of the documents in its list of documents that you don’t already have, and for which it does not have a legal claim to privilege. You can also ask the Regulator for copies of the documents in its list of documents.
Your ongoing disclosure obligations
If you obtain further documents that are relevant to a matter in issue in your appeal, then a copy of these documents will also need to be provided to the Regulator. This is because you have an ongoing duty to disclose relevant documents throughout the appeal proceedings (see s 46 of the Rules).
This duty of disclosure does not apply to documents to which you have a lawful claim to privilege.
Getting legal help with your appeal
QPILCH’s Workers’ Compensation Appeals Service in the QIRC may be able to provide free legal advice and assistance to self-represented people who cannot afford a lawyer and who have appealed a decision of the Regulator in the QIRC.
You can apply for assistance from QPILCH using the application form available at http://qpilch.org.au.
For more information about this service, click here.
The information in this resource is for general information purposes only. If you would like help with a legal problem, you may be eligible for assistance from a LawRight service or clinic.
For more information about the help available, and the process for applying for help, please contact LawRight by:
|Telephone:||07 3846 6317|
|Fax:||07 3846 6311|
|Postal address:||LawRight, PO Box 3631, South Brisbane, Qld 4101|
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