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  • Unreported Judgment

De Sousa v Workers' Compensation Regulator

 

[2019] QIRC 119

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

De Sousa v Workers' Compensation Regulator [2019] QIRC 119

PARTIES: 

De Sousa, Janete Alves

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2017/231

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

22 August 2019

HEARING DATE:

3 June 2019

25 June 2019 (written submissions of the Appellant)

9 July 2019 (written submissions of the Respondent)

16 July 2019 (written submissions of the Appellant in reply)

MEMBER:

HEARD AT:

Pidgeon IC

Brisbane

ORDERS:

  1. The appeal is dismissed.
  1. The review decision of the Respondent dated 14 November 2017 rejecting the Appellant's application for compensation is upheld.
  1. The Appellant is to pay the Respondent's costs of and incidental to this appeal.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – Where application for compensation lodged out of time – Whether reasonable cause for failure to lodge application within time limit.

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003

Augustynski v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 207

Green v Workers' Compensation Regulator [2019] ICQ 3.

Jeffrey Beattie AND Q-COMP (WC/2012/469)

Nuttall v Workers' Compensation Regulator [2017] QIRC 069

Qantas Airways Limited v QComp (2006) 181 QGIG 301.

Re van Gelder and Commonwealth of Australia (1985) 7 ALN N374

State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447.

Whitehead v Workers' Compensation Regulator [2017] QIRC 071

APPEARANCES:

Mr J Miles of Counsel, instructed by Johnathan C Whiting & Associates, for the Appellant.

Ms D Callaghan of Counsel, directly instructed by the Workers' Compensation Regulator.

Reasons for Decision

  1. [1]
    Ms De Sousa (the Appellant) was employed by Oakey Beef (the employer) as a slicer in the employer's abattoir at Oakey from in or about June 2007 to in or about September 2017.
  2. [2]
    In the premises, the Appellant was, at all material times, a "worker" as defined by s 11 of the Workers' Compensation and Rehabilitation Act 2003 ("WCRA").
  3. [3]
    The Appellant states that over a period of time during her employment with the employer, she sustained a personal injury to her right shoulder.
  4. [4]
    The parties agree that the date of entitlement arose on 4 November 2016 when the Appellant consulted Dr Lucy-Anne Tolcher GP.[1]
  5. [5]
    The Appellant lodged her application for compensation on 19 June 2017, six weeks and five days after the six-month time limit for lodging the application for compensation expired on 4 May 2017.
  6. [6]
    The Appellant seeks an order to set aside the decision of the Respondent dated 14 November to reject her application for compensation.
  7. [7]
    In that decision, the Respondent set aside a decision of WorkCover Queensland rejecting the application for compensation on the grounds that the injury was not an "injury" as per s 32 of the WCRA.
  8. [8]
    Instead, the Respondent substituted a decision rejecting the application for compensation and decided not to waive the time limit in s 131(1) of the WCRA as it was not certain that the Appellant's failure to lodge her application within the six-month time limit was due to a mistake, absence from the state, or a reasonable cause.[2]
  9. [9]
    Unless the time limit is waived, s 131(1) provides that an application for compensation is valid and enforceable only if the application is lodged by the claimant within six months after the entitlement to compensation arises.
  10. [10]
    In these circumstances, the decision the Commission is being asked to make is:

a)  whether the Appellant has reasonable cause for the failure to lodge her application within the time limit; and

b)  whether the discretion should be exercised in the Appellant's favour.[3]

 The Act and Legal Considerations

  1. [11]
    The relevant section of the WCRA provides:

131  Time for applying

  1. (1)
    An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.

  1. (3)
    And insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to –
  1. (a)
    mistake; or
  1. (b)
    the claimant's absence from the State; or
  1. (c)
    a reasonable cause.
  1. [12]
    The appeal is a hearing de novo.  The Commission is required to determine whether the Appellant's failure to lodge the application in time was due to one of the reasons listed in s 131(5).
  2. [13]
    The Appellant bears the onus of proof, on the balance of probabilities, to prove that her application was valid and enforceable.[4] That is, she needs to satisfy the Commission that the factors which she says caused the delay in making her claim for compensation are reasonable and that the Commission should decide that the time limit be waived.

Background and Chronology of Events

  1. [14]
    Whether there was an injury is not in issue in this appeal.  However, a chronology of events helps to understand the arguments put forward by both the Appellant and the Respondent regarding whether there was reasonable cause for the application to be lodged outside of the time limits.
  2. [15]
    The following background is taken from the Respondent's Notice to Admit Facts and the Appellant's Response,[5] as well as the parties' Statements of Facts and Contentions.
  3. [16]
    On 23 June 2014 (listed elsewhere as 5 June), the Appellant consulted general practitioner, Dr Maphosa, advising that she was a slicer in the meatworks and had pain in the right shoulder.
  4. [17]
    Dr Maphosa recorded a differential diagnosis of repetitive strain injury or rotator cuff injury and referred the Appellant for an ultrasound.
  5. [18]
    The ultrasound of the right shoulder was reported on 18 June 2014 as showing bulging of the subacromial bursa consistent with impingement syndrome.
  6. [19]
    The Appellant also attended upon Mr Matthew Marten, chiropractor, at Work Healthy Australian on 11 June 2014 with shoulder pain caused by "repetitive movement with low muscle loading" which first occurred about three years before, and which the Appellant said was aggravated by her work practices of slicing.
  7. [20]
    The Appellant continued to work as a slicer for the employer.
  8. [21]
    On 12 October, the Appellant consulted a doctor complaining of pain in the right arm radiating up to the neck.  She was prescribed Celebrex (a non-steroidal anti-inflammatory drug).
  9. [22]
    The Appellant was seen by Dr Lucy Tolcher on 4 November 2016, who assessed the Appellant as having right shoulder pain with tenderness over the supraspinatus and teres minor insertion sites, decreased range of movement in all directions limited by pain and pain on apprehension test, associated with her work at the abattoir as a right hand slicer.
  10. [23]
    The Appellant told Dr Tolcher that her shoulder pain had been present for one year, got worse in the last two months and then worse again in the last two weeks.  The Appellant states that she told Dr Tolcher that the pain was caused by daily repetitive movements as a slicer in an abattoir, while the Respondent states that she told Dr Tolcher that the pain was aggravated by these daily repetitive movements.
  11. [24]
    On 4 November (and according the Appellant, on 8 November) Dr Tolcher referred the Appellant to Body Fit physiotherapy for management of right shoulder pain due to repetitive movements performed as a right hand slicer at the abattoir.
  12. [25]
    The Appellant states that the records of Body Fit Physiotherapy do not record any attendances by the Appellant in the period 4 November 2016 and 19 June 2017. 
  13. [26]
    An ultrasound scan was performed on the Appellant's right shoulder on 7 November 2016. The scan showed subacromial/subdeltoid bursitis.
  14. [27]
    The Appellant returned to see Dr Nathalie Worth on 21 November 2016 and was advised about the condition shown on the ultrasound. She was counselled to rest, apply ice, take simple analgesia such as paracetamol and Celebrex, undertake gentle mobilisations and attend a physiotherapist.
  15. [28]
    Dr Worth also discussed the possibility of steroid injections, either with ultrasound guidance or without.
  16. [29]
    On 30 December 2016, the Appellant underwent an ultrasound guided cortisone injection at Darling Downs Radiology.
  17. [30]
    Between 3 November 2016 and 5 May 2017, the Appellant was seen by the employer's in-house allied health professionals on nine occasions, namely, 3, 17 and 24 November; 16 and 23 March 2017; 3, 20 and 24 April 2017; and 5 May 2017.[6]  She described her symptoms to those professionals as, inter alia, sharp pain in the right shoulder and upper arm as a result of repetitive slicing at work. The Respondent states that the Appellant described the pain as being aggravated by the repetitive slicing duties at work.
  18. [31]
    The Appellant was diagnosed on 3 November 2016 by Mr Matthew Pope, chiropractor as having 'hypertonicity related to repetition'.
  19. [32]
    After each of the nine aforementioned consultations by the employer's in-house allied health professionals, each of those professionals recommended that the Appellant "remain on full duties."
  20. [33]
    There is some dispute regarding what was said to health professionals at Work Healthy Australia.[7]
  21. [34]
    The Appellant continued to work as a slicer for the employer up to and including 19 May 2017.
  22. [35]
    The Appellant consulted general practitioner Dr Jameel Asraf on 23 May 2017 complaining of right shoulder pain which had been present for some time due to repetitive cutting and slicing at work.
  23. [36]
    The Appellant consulted general practitioner, Dr Wolfgang Seckler, on 23 May 2017 regarding her right shoulder pain and reported that although she thought it was caused by her work as a slicer, she did not want to claim for WorkCover until she had some results.
  24. [37]
    The Appellant consulted Dr Seckler again on 29 May 2017 and was referred for a further ultrasound.  The Appellant also states that on that day she asked Dr Seckler for a Certificate in relation to her absence from work as she did not attend that day and that she informed Dr Seckler on that date that she was anxious to notify the employer about starting a WorkCover claim although she is convinced that the condition is caused and aggravated by work.
  25. [38]
    Dr Seckler first wrote a WorkCover certificate on 6 June 2017, stating that he had first seen the Appellant for right shoulder supraspinatus tendinitis and bursitis on 23 May 2017, with the stated date of injury as 23 May 2017, but that the Appellant had pre-existing right shoulder bursitis which was probably work related in November 2016.  The Appellant says that the WorkCover certificate states 'previous' right shoulder bursitis, not 'pre-existing'.[8]
  26. [39]
    The Appellant advised in her handwritten Application for Compensation dated 16 June 2017 that she had advised her employer about the injury in March 2016 and the injury was reported to the 'company physio'.
  27. [40]
    There is disagreement between the parties as to what costs were incurred by the Appellant with regard to her injury during the period 4 November 2016 to 6 June 2017.
  28. [41]
    The Appellant had previously made five failed claims under WorkCover between 2007 and 2015.

 Matters in Contention: Reasonable Cause

  1. [42]
    The Appellant contends that the reasonable cause for the non-lodgement of her application for compensation until 19 June 2017 was:
  1. (a)
    she did not cease working for the employer until on or about 19 May 2017;
  2. (b)
    she was not losing any income which could have been compensated by weekly compensation benefits until she ceased work;
  3. (c)
    she was not incurring any expenses for allied medical treatment because such treatment was being provided by the employer's own in-house allied health professionals at its expense at the workplace;
  4. (d)
    the employer's own in-house allied health professionals repeatedly recommended (on no less than 9 occasions) that the Appellant 'remain full duties'; and
  5. (e)
    she did not wish to jeopardise her employment by making an application for workers' compensation benefits while she was still actively working for the employer or while there was a prospect of returning to work.[9]
  1. [43]
    In response, the Respondent says:

… compensation is not confined to weekly payments or to treatment by a chiropractor but extends to the costs of medication, the costs of physiotherapy, radiology, travelling expenses, and as the Appellant was taking Celebrex, referred to a physiotherapist, underwent ultrasounds and ultrasound guided steroid injections and incurred travelling costs, the Respondent contends that the Appellant's contention that she did not incur expenses is not correct or valid.

Furthermore, the Regulator contends…that not losing income and not incurring the costs of the chiropractic treatment was not a reasonable cause for not lodging the application for compensation within the six months.

The Respondent says that the Appellant had made some seven previous WorkCover claims whilst working for the employer so contends that the Appellant's contention that she did not make a claim because she did not wish to jeopardise her employment is not correct and as such is not a reasonable cause not to have lodged an application for compensation within six months.[10] 

 Evidence

 The Appellant did not cease work until 19 May

  1. [44]
    As stated above, it is not in dispute that the Appellant continued to work in her role undertaking her full duties until 19 May.
  2. [45]
    In her evidence-in-chief, the Appellant stated that the reason she stopped work on Friday 19 May was "because I had a lot of pain. There was a lot of pain in my shoulder".[11]

 The Appellant was not losing income which could have been compensated with weekly payments

  1. [46]
    The Appellant said that in late May 2017, the employer sent her to see Dr Vern Madden in Toowoomba.[12] According to a letter dated 29 May, the employer was unsure of the Appellant's capacity to perform her usual task of slicing without risk of injury.  Dr Madden would make an assessment of her capacity to return to her usual duties slicing, or if necessary any other position.[13]
  2. [47]
    Following the assessment the Appellant attended with Dr Madden, the Appellant received a further letter from the employer dated 2 June.[14] This letter stated the following:

…It is apparent in the report that you are not able to currently perform your usual duties or any other duties.

You are asked to seek further medical examination to determine the underlying cause of your ongoing limited work capacity.

You are also asked to provide a medical certificate to support your absence while undergoing this process.

You will be stood down without pay from Monday the 5th June 2017 until you are able to produce medical evidence that satisfies Oakey Beef Exports of your ability to return to work….

  1. [48]
    Pay slips tendered as evidence show that the Appellant received sick leave for a period after ceasing work on 19 May and that by the period ending 25 June, she received nil pay as she had run out of sick leave.[15]
  2. [49]
    The Appellant said that she made a claim "because I can make a claim"[16] and that Dr Seckler gave her advice about making a WorkCover claim.  She also spoke to her union representative who referred her to Maurice Blackburn Lawyers to help her fill in her application for workers' compensation benefits.[17]

 Expenses for medical treatment

  1. [50]
    The Appellant gave evidence that she was being treated at the workplace by chiropractors from Work Healthy Australia during work hours and that if you wanted to make an appointment, you would talk to your supervisor and he would make an appointment for her.[18]
  2. [51]
    She said that it was mandatory to tell the supervisor how you were feeling and what was causing the pain. She told her supervisor that she thought the movement she did at work cutting top side in a horizontal movement slicing with her right arm across in front of her had caused her pain.[19]
  3. [52]
    The Appellant also said that the nurse that works for the company is always present in all consultations.[20]
  4. [53]
    Under cross-examination, the Appellant agreed that she underwent three ultrasound scans that required her to travel to Toowoomba.
  5. [54]
    When asked if she recalled taking any medicine for her shoulder in late 2016 or early 2017, the Appellant recalled a cortisone injection for her shoulder which was recommended by the doctor but could not remember taking any medicine.[21]
  6. [55]
    Dr Seckler was asked questions regarding whether consultations the Appellant attended with him in May and June 2017 were bulk billed or billed to WorkCover. The evidence appears to demonstrate that some of the appointments were bulk billed and two were given an item number which indicates that they were billed to WorkCover.[22] With regard to appointments which were charged at the standard Medicare rate, Dr Seckler indicated that it is possible that the Appellant negotiated to waive the fee, but he did not know.[23]
  7. [56]
    Dr Seckler was also asked if at any of the appointments in May or June 2017 he prescribed prescription medication.  He answered that if he had, it would have been recorded but "it doesn't appear to be the case".[24]
  8. [57]
    When asked under cross-examination whether he recommended that the Appellant purchase some non-steroidal medications from the chemist, Dr Seckler agreed that he had.[25]
  9. [58]
    Dr Seckler also confirmed that he had referred the Appellant to radiological studies at Darling Downs Radiology.  When asked if the Appellant would have had to pay any out-of-pocket expenses for those radiology tests, he replied that she would not have had to and made reference to bulk billing.[26]
  10. [59]
    Dr Nathalie Worth gave evidence that when she saw the Appellant on 21 November 2016 she advised her to take "simple amount of analgesia plus amount of NSAID if needed".  Further to this, Dr Worth's recollection was that she did not need to prescribe Celebrex to the Appellant that day as the Appellant had some at home having been prescribed it on 12 October by another doctor.[27]
  11. [60]
    Dr Worth described the type of advice she would give a patient presenting with the Appellant's symptoms though she had no direct recollection of the advice she gave.[28]
  12. [61]
    Dr Worth stated that she talked with the Appellant about physiotherapy and noted that she had been referred to a physiotherapist already and that she gave the Appellant a request to have a steroid injection at Darling Downs Radiology.[29]
  13. [62]
    Dr Worth gave evidence that the Appellant had the steroid needle procedure performed at Darling Downs Radiology in Toowoomba on 30 December and referred to a report that the procedure was done by Dr Nicholas Hall.[30]
  14. [63]
    Dr Worth also provided evidence that prior to her bulk billed visit to the Cherry Street Medical Centre on 12 October where Dr Hannay described 'right arm pain' in his notes and prescribed Celebrex to the Appellant, the last attendance at the centre was 24 August 2015.[31]
  15. [64]
    Dr Worth also stated that there is no record of the Appellant visiting Bodyfit Physio in Oakey, though said that this does not mean that she did not, as Mr Dolan, the physiotherapist, does not always write reports.[32]
  16. [65]
    Dr Tolcher gave evidence that on 4 November she saw the Appellant.  She said that she had no recollection of the patient except for the documentation that had been provided to her.[33]
  17. [66]
    Dr Tolcher confirmed that she referred the Appellant to BodyFit Physiotherapy by way of a Medicare Local Rural Primary Health Services Program proforma,[34] and for an ultrasound of the right shoulder at Darling Downs Radiology at Neil Street Toowoomba.[35]
  18. [67]
    Under cross-examination, Dr Tolcher was asked about the Enhanced primary care program: referral form for individual allied health services under Medicare.  She said that she has very limited knowledge of the program:

The only knowledge I have is that there are Medicare entitlements that patients can access for allied healthcare. That's all I know.[36]

  1. [68]
    A radiologist report of the ultrasound was tendered and indicated that Dr Tolcher was the referral doctor.[37]
  2. [69]
    Dr Tolcher also confirmed that in her notes regarding the Appellant she wrote: 'pain controlled with Celebrex but is needing it regularly'.[38]

 Advice to remain on full duties

  1. [70]
    Nine sessions of chiropractic treatment were provided between early November 2016 and early May 2017.
  2. [71]
    At each of the nine consultations the appellant was advised by the chiropractors at Work Healthy Australia to remain on full duties.

 Reluctance to lodge a WorkCover claim

  1. [72]
    The Appellant gave evidence that after she stopped working, she went to the Cherry Street Medical Centre where she saw Dr Seckler.  She says that she told him she had too much pain in her shoulder and was unable to do the work she was supposed to do at work.[39]
  2. [73]
    The Appellant said that when she first saw Dr Seckler, it was not her intention to make an application for compensation and that she wanted to try other treatment before lodging a claim for workers' compensation.[40]
  3. [74]
    The Appellant says that she did not want to lodge a WorkCover compensation in the beginning because:

INTERPRETER: It doesn't work like that.  You don't go to WorkCover because you want to. The company pressures you to go to WorkCover or nothing.  If – if you don't accept it – you just don't go to WorkCover with a piece of paper. They pressure you not to enter.  That's the procedure for the WorkCover.

MR MILES: "They pressure you not to enter?" What do you mean by that?

INTERPRETER: When you get hurt at work and you take the application for a – a WorkCover, they pressure you. They say, "We are not going to sign this for you to go on workers' compensation." They say that: it's not only to me, it's to a lot of people at the meatwork.[41]

  1. [75]
    The Appellant has made previous applications for workers' compensation while she was working at Oakey Beef and knew that she was entitled to make an application for workers' compensation.  She also said that on her visit to Dr Seckler on 23 May 2016, the Appellant knew that she could make a claim for workers' compensation.[42]
  2. [76]
    Dr Seckler gave evidence that on 23 May he had a discussion with the Appellant about a workers' compensation claim and that the Appellant was very reluctant to start a workers' compensation claim, because she was fearing for her job.  He recorded in his notes:

Seems that she is anxious to notify the employer to start a WorkCover claim, although she is convinced that the condition is caused and aggravated by work.

  1. [77]
    My own review of the records of Dr Seckler shows that the above notes at [67] were in fact in relation to 29 May.  The entry for 23 May states:

Although she thinks all this is caused by her work as a slicer, she does not want to claim for WorkCover straight away, wait for results first.[43]

  1. [78]
    Dr Seckler gave evidence that he had no independent recollection of the consultation, however, he stated that the Appellant was afraid of losing employment as she was only trained to be a slicer.[44]
  2. [79]
    Under cross-examination, the Appellant agreed that she had visited WorkHealthy Australia for treatment on other occasions since commencing employment with the employer:

MS CALLAGHAN: …Now, Mrs De Sousa, you attended Work Healthy Australia over 30 times since you commenced employment with the employer.  Isn't that the case?

INTERPRETER: Yes, I'll respond to that.  I don't remember if there were 30 times, but it wasn't for the same problem.  It could be the wrist, the hand, the shoulder. Thirty times, for sure, it wasn't for the same problem.

  1. [80]
    The Appellant agreed under cross-examination that in relation to some of the other conditions she had sought treatment for at WorkHealthy Australia, she had lodged WorkCover claims. This is supported by her Worker Claim History.[45]
  2. [81]
    At a further visit with Dr Seckler on 6 June 2017, the Appellant spoke to Dr Seckler about lodging a claim for workers' compensation.  She received a workers' compensation medical certificate[46] from him and provided it to WorkCover and to her employer.[47]
  3. [82]
    On 12 June, the Appellant saw Dr Seckler and he recorded that she told him her employer had not processed her workers' compensation claim because they did not consider the injury to be work-related.[48]
  4. [83]
    On 19 June 2017, a handwritten application for compensation was lodged.[49]

Submissions

 Medical Expenses

 Appellant

  1. [84]
    The Appellant states that in relation to expenses, the Appellant was using medication acquired prior to her entitlement to compensation arising, there is no evidence that she incurred any physiotherapy expenses (Dr Worth), her radiology scans and injections were, on the balance of probabilities, bulk billed by Darling Downs Radiology (Dr Secker),[50] and there is no evidence of travelling expenses (save that Dr Seckler was cross-examined about how far Toowoomba was from Oakey).[51]
  2. [85]
    The Appellant submits that the Appellant was not cross-examined about physiotherapy or radiology expenses and could not recall what medication she took in late 2016 and early 2017.[52] Further, the Appellant submits that there was only one question regarding travel to Toowoomba for radiology and it did not probe into the detail such as means of transport, cost and the like.[53]
  3. [86]
    The appellant was not cross-examined about medical expenses.[54]
  4. [87]
    The Appellant's expenses were too modest to justify, on their own, the lodgement of an application for compensation.[55]

 Respondent

  1. [88]
    The Respondent states that during the period between 4 November 2016 and 6 June 2017, the Appellant was shown to have possibly, if not likely, incurred the costs of at least two medical consultations, anti-inflammatory treatment and travel to Toowoomba for at least three ultrasounds.[56]
  2. [89]
    The Respondent submits that the appellant never gave evidence that she had not incurred any expense in obtaining the treatment, let alone evidence that this was a factor in her decision not to make an application for compensation and the onus of proof lies with her to prove her contentions on the balance of probabilities.[57]

 Loss of income

 Appellant

  1. [90]
    The Appellant submits that 'it was not until the employer informed her that she would be stood down without pay that she consulted her union and requested that Dr Seckler provide a formal workers' compensation medical certificate.[58]
  2. [91]
    After each of nine consultations with the chiropractors between 3 November and 5 May 2017 provided at the employer's expense, the treating chiropractor recommended that the Appellant 'remain on full duties'. These recommendations resulted in the Appellant remaining at work and earning her full income, giving her no reason to make an application for compensation.[59]
  3. [92]
    The Appellant remained in full-time employment and on full wages until 15 days after the time limit expired.[60] 

 Respondent

  1. [93]
    The Respondent submits that the Appellant was aware from at least 4 November and it was repeatedly reinforced by her medical providers, that she had "a sound basis for lodging a compensation claim rather than a reasonable cause for not doing so".[61]
  2. [94]
    The Appellant ceased work over three weeks before making a claim and required at least 12 days off work on medical certificates subsequent to 4 November 2016.[62]
  3. [95]
    The Respondent says that although the Appellant may have accessed sick leave rather than losing income, accrued sick leave has 'a value in its own right'.[63]
  4. [96]
    While the Appellant's legal representatives contend and submit that the appellant did not make an application for compensation because she had continued working and had not been losing income until 19 May 2017, the Respondent submits that the Appellant gave no evidence that this played any role in her decision not to claim compensation on or before 4 May.[64]

 Reluctance to lodge a claim

 Appellant

  1. [97]
    The Appellant submits that when she determined that she would lodge an application for workers' compensation, the employer refused to cooperate claiming that her injury was not caused by work. It is submitted that this justifies her reluctance to bring an application prior to 4 May 2017 and her anxiety about notifying her employer of a claim on 23 and 29 May when she first saw Dr Seckler.[65]

 Respondent

  1. [98]
    The Respondent says that the Appellant never gave evidence to the effect that that she did not want to jeopardise her employment by making an application for compensation. 
  2. [99]
    The Respondent further submits that even if she had given evidence that she feared her employment would be jeopardised, it would not have been supported in any event by other evidence that: she had made five WorkCover claims previously with that employer, she had advised her employer on many occasions of work related injuries or symptoms and when her employer allegedly refused to 'sign off' on her WorkCover claim, she immediately involved her union and solicitor.[66]

 Advice to remain on full duties

 Respondent

  1. [100]
    The Respondent submits that the appellant did not give any evidence that the repeated recommendation of the in-house health professionals to remain on full duties was a factor in her decision not to make a workers' compensation claim on or before 4 May 2017.[67]
  2. [101]
    The Respondent states that the Appellant gave evidence that she understood there were no doctors at Work Healthy Australia and that she had never thought of asking for a certificate for work, rather she repeatedly demonstrated that when requiring a certificate for work, she attended her general practitioner.

 Discretion

 Appellant

  1. [102]
    The application was lodged promptly and no prejudice was caused to the employer or WorkCover by the late lodgement.[68]
  2. [103]
    The Appellant thought she was acting reasonably and:

the inevitable conclusion from a proper analysis of the largely uncontested facts in this appeal, considered through the knowledge of the Appellant at the relevant time, is that her failure to lodge her application for compensation within 6 months of her entitlement to do so was due to a 'reasonable cause'.[69]

 Respondent

  1. [104]
    The Respondent says that no submissions have been made about why the Commission should exercise the discretion to waive the requirement to lodge an application in six months apart from a submission that there is no prejudice to either the employer or WorkCover by the delay.[70]

 Reasonable Cause – Submissions of the Parties

  1. [105]
    Both parties have drawn attention to recent consideration given by O'Connor VP and Martin P to the term 'reasonable cause'
  2. [106]
    The Respondent draws attention to some decisions of O'Connor DP (as he then was) which deal with the matter of 'reasonable cause' being:

a cause which a reasonable person would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man.[71]

  1. [107]
    Further, the Respondent says that it is an objective test with consideration of the circumstances in which the worker was at the time which prevented her giving notice at that time and references the following as cited in Nuttall v Workers' Compensation Regulator:

In Miller v Nominal Defendant, Davies JA maintained on the question of reasonableness it was to be considered objectively but having regard to the claimant’s personal characteristics such as age, intelligence and education.[72]

  1. [108]
    The Respondent refers to Green v Workers' Compensation Regulator where at [33] Martin P stated:

Whether a 'reasonable cause' exists for the purposes of s 131(5) will always depend on the facts of the particular case and will require consideration of the knowledge of the applicant at the relevant time and the actions taken or not taken within the six month time limit.[73]

  1. [109]
    The Appellant states that in Green, Martin P took an approach consistent with the judgement in Re van Gelder and Commonwealth of Australia,[74] referred to later in Green at [31] where it was said:

I consider that in the present context the preferable approach is that of Rainbow J in Garrett v Tooheys Limited [1949] WCR 80.  He examined the meaning of 'reasonable cause' and concluded that 'cause' meant grounds which lead to the worker to omit to give the notice or to claim compensation. The mixture of fact, circumstances and motive which constitutes an explanation of the omission, he considered must be reasonable considered from the viewpoint of the worker, not in the sense that he considered his omission reasonable, but rather in the sense that the cause of the omission is reasonable in the light of all the circumstances in which the worker found himself.

In other words the test to be applied is subjective and not objective. One should look through the eyes of the applicant and decide whether, in the circumstances, viewed from his perspective, he was acting reasonably or otherwise.

  1. [110]
    That quote, provided by the Appellant in their submissions goes on to conclude with:

One of the circumstances which his Honour found to constitute reasonable cause was where the worker had failed to associate the incapacity with the injury until a later date.

  1. [111]
    The Respondent submits that it is the Appellant's knowledge, mind set and circumstances at the time at which she was entitled to make a claim for compensation which is the relevant consideration for the Commission when determining whether the Appellant had a reasonable cause for the delay in doing so.[75]
  2. [112]
    The Respondent refers to Mayne Group Limited v QComp Review Unit,[76] it was found that the worker did not have a reasonable cause for late lodgement of his claim in circumstances where he had made previous WorkCover claims, he had deliberately decided to refrain from brining a claim and he thought the injury would diminish over time.
  3. [113]
    The Respondent submits that the Appellant gave no evidence at all about the circumstances that were factors in her decision not to make a claim for compensation.[77]
  4. [114]
    In response, the Appellant states that that submission is:

…manifestly incorrect. There was ample evidence of the circumstances operating between 4 November 2014 and 4 May 2017 which were factors directly relevant in the Appellant's failure to lodge an application in time…

 Consideration

  1. [115]
    As explored above, the question of reasonableness is one that depends on the specific facts of each case.
  2. [116]
    The Appellant's application was lodged six weeks and five days out of time.
  3. [117]
    It is clear from her repeated visits upon the in-house chiropractor and from her visits to doctors that the Appellant had formed a view that her injury was related to her work as a slicer at the abattoir. I also accept the submission of the Respondent that the Appellant's evidence demonstrates that she knew the in-house chiropractors were not doctors and that she relied on doctors to certify whether she was fit for work. However, I note that the Appellant did not visit a GP between 23 November 2016 and 23 May 2017.
  4. [118]
    It is also clear, despite evidence from the Appellant that she was reluctant to lodge a claim due to concern about her employment, that the Appellant had previously lodged several WorkCover claims for different injuries and her employment had continued throughout this time.
  5. [119]
    Further to that, the Appellant indicated that she consulted her union who referred her to a legal representative who helped her to lodge her claim.  The inference I draw from this is that the Appellant would have had an avenue to seek advice in the event that she felt her employment was at risk.
  6. [120]
    I am not persuaded that the Appellant feared her employment would be jeopardised and, beyond the mention of this in Dr Seckler's evidence, the Appellant did not provide further evidence of this.  The evidence indicates that the employer may not have been supportive of the claim, but this is different to her employment being jeopardised.
  7. [121]
    It is the Appellant's evidence that she did not require advice to lodge a claim, she could decide to do so herself.  This is demonstrated by her decision at two appointments with Dr Seckler to not lodge a claim.
  8. [122]
    Given that the Appellant is no stranger to the Worker's Compensation application process, the inference I draw from her reluctance to lodge a claim is that she thought that she was acting reasonably in the circumstances.
  9. [123]
    I accept the evidence that the Appellant had incurred only modest cost for treatment and I note that the treatment she accessed on the most occasions was the in-house chiropractic treatment available at work. However, there is evidence that a range of other treatments were recommended by her doctors and the Appellant gave no evidence as to the reason she did not seek such treatments. 
  10. [124]
    The Appellant's claim was rejected on the basis that it was lodged out of time and so it is clear that her opportunity to have her application for compensation considered relies on the Commission exercising discretion in the Appellant's favour.
  1. [125]
    The Appellant submits that there would be no prejudice to either the employer or WorkCover should the appeal be allowed and discretion exercised in favour of the Appellant.
  1. [126]
    I do not accept the Respondent's submission[78] that the Appellant gave no evidence that not losing income had played any role in her decision not to claim compensation on or before 4 May.  It is my view that the letters from her employer and associated doctor's assessment are evidence of her becoming aware that her pay would stop and the application was lodged not long after these letters were received however, the extent to which this played a role in the decision is not apparent upon review of the Appellant's evidence.[79]
  1. [127]
    Having considered all of the evidence before the Commission including the timeline of events in this matter and giving specific attention to the ongoing treatment from 'in-house' chiropractors who repeatedly recommended she continue on 'full duties' and finally the receipt of advice from the employer following the medical examination she was required to attend, I have determined that one of the overwhelming reasons for her making her application was the cessation of pay and being stood down without pay with an inability to return to work without clearance.
  1. [128]
    Regardless of this, the problem I have with determining that the Appellant had a reasonable cause for lodging her application out of time can be summarised as follows in relation to each of her grounds:

She did not cease work for her employer until around 19 May 2017 and she was not losing income which could have been compensated by weekly compensation payment until around 19 May 2017.

  • The parties agree that the date of entitlement arose on 4 November 2016 when the pain in her shoulder which she associated with work led to her seeing Dr Lucy Tolcher.
  • The Appellant gave evidence that she took sick leave from work after seeing Dr Tolcher on 4 November.[80]
  • While the Appellant did not cease work for her employer until around 19 May 2017, she had, over a period of time, had to take time off because of her shoulder and had repeatedly sought treatment for her shoulder where she described to those treating her that she believed the injury was as a result of her repetitive work as a slicer.
  • The Appellant was not losing income which could have been compensated by regular payments, however she did take periods of sick leave and the evidence indicates a number of conversations with doctors and medical professionals regarding rest and the possibility of 'lighter duties'.

She was not incurring any medical expenses until May 2017 as she was being treated by the employer's in-house allied health professionals and the allied health professionals recommended on no less than 9 occasions that she remain on full duties

  • The Appellant, on her own evidence, said that she knew that the in-house chiropractors were not doctors and the medical history shows that she attended upon doctors on various occasions. 
  • The attendance upon the chiropractor and the description of the injury each time to her supervisor reinforces that she understood her injury was work related.
  • While the expense on medical treatment may be modest, her doctors repeatedly recommended further treatment for the injury and the Appellant could have been compensated for such treatments, had an application for compensation been successful.

She did not wish to jeopardise her employment by making an application for worker's compensation benefits whilst still actively working for the employer or where there was a prospect of returning to work.

  • On two occasions soon after she ceased working for her employer, the Appellant made an active choice not to apply for compensation as is evidenced by the evidence of Dr Seckler.
  • The Appellant demonstrated an understanding of workers' compensation applications, or certainly the process to go through to get support to lodge a claim.
  • The Appellant had continued to work for the employer following her previous workers' compensation claims.
  • I do not accept that the Appellant was fearful that her job would be jeopardised if she were to make a claim, and her evidence demonstrates that she had the means to seek union and legal advice in relation to this.
  1. [129]
    In the circumstances outlined above, including the Appellant's circumstances in seeking treatment for an injury no fewer than nine times between 4 November and 4 May as well as undergoing an ultrasound guided cortisone injection, and her knowledge and understanding of workers' compensation claims, it is my view that rather than having a reasonable cause for not lodging an application for compensation, the Appellant had a sound reason for doing so.[81]
  2. [130]
    For the forgoing reasons, I am not satisfied that the Appellant has demonstrated that her failure to lodge her application for compensation in time was for a reasonable cause.
  3. [131]
    Having found that there is no reasonable cause for the Appellant's failure to lodge the application in time, there is no capacity for the Commission to exercise its discretion to waive the time period under s 131(5) of the Act.
  4. [132]
    I order accordingly.

Orders

  1. The appeal is dismissed.
  2. The review decision of the Respondent dated 14 November 2017, rejecting the Appellant's application for compensation is upheld.
  3. The Appellant is to pay the Respondent's costs of and incidental to this appeal.

Footnotes

[1] Written Submissions of the Appellant, [6]; Written Submissions of the Respondent, [8]; T1-6, ll 28-43.

[2] Statement of Facts and Contentions filed by Appellant, [1]-[4].

[3] Green v Workers' Compensation Regulator [2019] ICQ 3, [8].

[4] State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447; Qantas Airways Limited v QComp (2006) 181 QGIG 301.

[5] Notice to Admit Facts filed by Respondent; Reply filed by Appellant.

[6] T1-6, ll 8-10.

[7] Notice to Admit Facts filed by Respondent, [17]-[18]; Reply filed by Appellant, [6]-[7].

[8] Exhibit 2.

[9] Statement of Facts and Contentions filed by Appellant, [38].

[10] Amended Statement of Facts and Contentions filed by Respondent, [25]-[27].

[11] T1-31, l 46.

[12] T1-35, ll 45-46; T1-36, ll 1-29.

[13] Exhibit 7.

[14] Exhibit 8.

[15] T1-40 ll 23-26; Exhibit 9.

[16] T1-53, ll 39-40.

[17] T1-53, ll 35-40; T1-54, ll 1-8; T1-54, ll 27-30; T1-55, ll 16-23.

[18] T1-75, l 40 – T1-76, l 7; T1-79, ll 26-28.

[19] T1-76, ll 14-44; T1-77, l 1.

[20] T1-77, ll 5-13.

[21] T1-86, ll 1-24.

[22] T1-48, l 35 – T1-49, l 38.

[23] T1-50, ll 30-32.

[24] T1-49, ll 42-47.

[25] T1-50, ll 34-36.

[26] T1-50, l 38 – T1-51, l 3.

[27] T1-62, ll 18-47; T1-63, ll 1-2.

[28] T1-63, ll 14-26.

[29] T1-64, ll 18-40; Exhibit 12.

[30] Exhibit 13.

[31] T1-66, l 19 – T1-67, l 46.

[32] T1-68, ll 5-12.

[33] T1-70, ll 28-29.

[34] Exhibit 14.

[35] Exhibit 15.

[36] T1-74, ll 25-41.

[37] Exhibit 16.

[38] T1-74, ll 5-10.

[39] T1-31, ll 36-37.

[40] T1-33, ll 9-19.

[41] T1-58, ll 37-47.

[42] T1-59, ll 1-13.

[43] Exhibit 10.

[44] T1-45.

[45] Exhibit 17.

[46] Exhibit 2.

[47] T1-33, ll 31-47; T1-34, ll 1-37.

[48] T1-46, ll 25-40; Exhibit 10.

[49] Exhibit 1.

[50] T1-50, l 38 – T1-51 l 3.

[51] Written submissions of Appellant, [47].

[52] T1-85, ll 43 – T1-86, l 25.

[53] Written submission of Appellant, [48].

[54] Ibid [49].

[55] Ibid [51].

[56] Written Submissions of Respondent, [99].

[57] Ibid [100]-[101].

[58] Written Submissions of Appellant, [52].

[59] Ibid [53].

[60] Ibid [55].

[61] Augustynski v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 207, [54]; Written Submissions of Respondent, [89].

[62] Written Submissions of Respondent, [94].

[63] Ibid [95].

[64] Ibid [97].

[65] Written Submissions of Appellant, [54].

[66] Written Submissions of Respondent, [106]-[107].

[67] Ibid [102]-[103].

[68] Written Submissions of the Appellant, [55].

[69] Ibid [57].

[70] Written Submissions of the Respondent, [114].

[71] Jeffrey Beattie AND Q-COMP (WC/2012/469), [31]; Whitehead v Workers' Compensation Regulator [2017] QIRC 071, [22]-[24]; Written Submissions of the Respondent, [72].

[72] [2017] QIRC 069, [71] (footnotes omitted).

[73] [2019] ICQ 3, [33].

[74] (1985) 7 ALN N374, N378.

[75] Written Submissions of Respondent, [77].

[76] Unreported, Industrial Magistrates Court, Brisbane, Gordon IM 13 February 2004.

[77] Written Submissions of Respondent, [84].

[78] Written Submissions of Respondent, [97].

[79] Exhibits 7 and 8.

[80] T1-86, l 37.

[81] Augustynski v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 207, [54]; Green v Workers' Compensation Regulator [2019] ICQ 3, [33].

Close

Editorial Notes

  • Published Case Name:

    De Sousa v Workers' Compensation Regulator

  • Shortened Case Name:

    De Sousa v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 119

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    22 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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