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Allwood v Sundin, Chung, Greaves

 

[2020] QSC 188

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Allwood v Sundin, Chung, Greaves & Anor [2020] QSC 188

PARTIES:

JASON SCOTT ALLWOOD

(applicant)

v
DR J SUNDIN, DR A CHUNG AND DR C GREAVES CONSTITUTING THE GENERAL MEDICAL ASSESSMENT TRIBUNAL – PSYCHIATRIC
(first respondent)

and

STATE OF QUEENSLAND

(second respondent)

FILE NO:

812 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2020

JUDGE:

Ryan J

ORDERS:

  1. The application is dismissed.
  2. Unless the parties wish to make submissions to the contrary, the applicant is to pay the second respondent’s costs of the application on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME –  where, from 2008 until 21 July 2014, the applicant suffered a work related psychiatric/psychological injury (the “first injury”) and later, from 22 July 2014 until January 2015, suffered a work related aggravation of a pre-existing psychiatric/psychological injury (the “second injury”) – where the Medical Assessment Tribunal – Psychiatric assessed the applicant’s degree of permanent impairment from the first injury at four percent, which meant that he was ineligible to seek common law damages in relation to that injury – where the applicant is out of time to bring an application for judicial review – where the applicant’s explanation for the delay is that he was not initially aggrieved by the decision, but became aggrieved upon receipt of a psychiatrist’s report which made it clear that his claim for damages as a result of the second injury could not be such that would compensate him for the psychiatric injury that he suffered during his employment – whether there has been a satisfactory explanation of the applicant’s delay – whether the grant of an extension would be fair and equitable in the circumstances – whether there are merits in the applicant’s grounds of review

Judicial Review Act 1991 (Qld) s 7, s 20, s 24

Workers Compensation and Rehabilitation Act 2003 (Qld) s 32(1), s 32(5), s 237

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (Qld) s 17

Allwood v Workers’ Compensation Regulator [2017] QIRC 088, cited

Argos Pty Ltd v Corbell Minister for the Environment and Sustainable Development (2014) 254 CLR 394, applied

Chilcott v The Medical Board of Queensland [2002] QSC 118, applied

Hoffman v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369, applied

Kim Hyun Tai v Bolkus (1996) 42 ALD 249, applied

Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663, applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, applied

Lock the Gate Alliance Ltd v Chief Executive under the Environmental Protection Act 1994 [2018] QSC 22, cited

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, cited

Shaw v Barker & Ors [2001] QCA 220, considered

Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421, cited

Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68, applied

Westwood v Human Rights & Equal Opportunity Commission [2004] FCA 153, applied 

COUNSEL:

S D Anderson for the applicant

S A McLeod QC for the second respondent

SOLICITORS:

Shine Lawyers for the applicant

Crown Law for the second respondent

Contents

Overview

Background

WorkCover claims

Claim #043

WorkCover’s rejection of claim #043

Review by Regulator of claim #043

Claim #043 returned to WorkCover for re-consideration and rejected

Claim #627

WorkCover’s rejection of claim #627

Review by Regulator of claim #043 and claim #627

Dr Dwyer’s report – dated 24 November 2015

The applicant’s submissions on the reviews

WorkCover’s rejection of claim #043 confirmed; WorkCover’s decision to reject claim #627 set aside

Appeal from Regulator to Queensland Industrial Relations Commission – re claim #043

WorkCover accepted both claims

Referral of claims to the Medical Assessment Tribunal – Psychiatric

The decisions of the MAT

The applicant’s common law claim

Dr Chalk’s opinion

Dr Dwyer’s opinion

The applicant’s application for an extension of time

The law

The explanation given for the delay: Applicant’s submissions

The explanation given for the delay: Second respondent’s submissions

Meaning of “a person who is aggrieved”

Conclusion: there has been no satisfactory explanation for the applicant’s delay

The merits of the application for review

The Queensland Guide

First ground

Applicant’s submissions

Second respondent’s submissions

Conclusion: first ground

Second ground

Conclusion: second ground

Third and fourth grounds

Applicant’s submissions

The second respondent’s submissions

Conclusion: third and fourth grounds

Fifth ground

Applicant’s submissions

Sixth ground

Applicant’s submissions

Second respondent’s submissions

Conclusion: sixth ground

Other matters relied upon by the applicant

The second respondent’s response to those other matters

The application is refused

Orders

Other matters

 

  1. [1]
    In December 2018, the Medical Assessment Tribunal – Psychiatric (the “MAT”), assessed the applicant’s degree of permanent impairment from a work related injury at four percent, which meant that he was ineligible to seek common law damages in relation to that injury.  He now applies for a statutory order of review of the assessment decision.  He is many months out of time. 

Overview

  1. [2]
    Over a period of time, from 2008 until 21 July 2014, the applicant suffered a work related psychiatric/psychological injury (the “first injury”). 
  2. [3]
    Over a period of time, from 22 July 2014 until January 2015, the applicant suffered a work related aggravation of a pre-existing psychiatric/psychological injury (the “second injury”). 
  3. [4]
    He made a WorkCover claim in respect of each injury. 
  4. [5]
    He engaged his present lawyers in August 2014.[1]  They acted for him through a lengthy claim, review and appeal process.  Ultimately, WorkCover accepted both of the applicant’s claims.
  5. [6]
    The applicant’s lawyers now act for him in a claim for common law damages on the basis of his second injury.  I infer from the material before me that a claim for common law damages was in contemplation at least by November 2015.[2]
  6. [7]
    In December 2018, the MAT conducted an assessment of the applicant.  It decided that the applicant had sustained a degree of permanent impairment (“DPI”) of four per cent arising out of the first injury; and an additional degree of permanent impairment of 20 percent arising out of the second injury.  In other words, the MAT assessed the applicant as suffering from a DPI of 24 percent in December 2018, apportioned 4 percent: 20 percent between his first and second injury.
  7. [8]
    Because of the dates of his injuries, the applicant’s entitlement to seek common law damages was governed by amendments to the Workers’ Compensation and Rehabilitation Act 2003 (the “WCRA”), which were made on 29 October 2013 by the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (the “WCR Amendment Act”). 
  8. [9]
    Section 17 of the WCR Amendment Act amended section 237 of the WCRA by omitting section 237(1) and inserting instead the following provision –

The following are the only persons entitled to seek damages for an injury sustained by a worker –

  1. (a)
    the worker, if the worker –
  1. (i)
    has received a notice of assessment from the insurer for the injury and the DPI for the assessed injury is more than five per cent; or
  1. (ii)
    has a terminal condition;
  1. (b)
    a dependent of the deceased worker, if the injury results in the worker’s death.[3]
  1. [10]
    I assume – although there was no evidence about it before me – that the applicant received notices of assessment from WorkCover for each injury. 
  2. [11]
    As the applicant’s DPI for the first injury was assessed at four percent, he did not meet the section 237(1)(a)(i) threshold and was not entitled to seek damages for his first injury.  As the DPI for his second injury was assessed at 20 percent, he was entitled to, and has, sought damages for his second injury (the “second injury common law claim”).
  3. [12]
    In the course of defending the second injury common law claim, WorkCover required the applicant to submit to an examination by Dr John Chalk on 13 August 2019. 
  4. [13]
    Dr Chalk disagreed with the MAT’s DPI apportionment.  In his view, the applicant suffered a DPI of 17 percent as a result of the first injury and any contribution to his permanent impairment by the second injury was minor. 
  5. [14]
    On 17 September 2019, the applicant’s lawyers consulted Dr Dwyer about Dr Chalk’s opinion.  They had engaged Dr Dwyer previously (in November 2015) to provide an opinion in relation to Mr Allwood’s claim for damages. 
  6. [15]
    Dr Dwyer essentially agreed with Dr Chalk – the applicant’s impairment as at December 2018 was primarily caused by the first injury, although Dr Dwyer considered the second injury to have made a 20 percent contribution to it.
  7. [16]
    Thus, the applicant anticipates that, even if he were to succeed in his second injury common law claim, any damages award would be modest.
  8. [17]
    On 14 October 2019, he applied, under the Judicial Review Act 1991 (“JRA”), for a statutory order of review of the December 2018 decision of the MAT about his first injury. 
  9. [18]
    Under section 20(1) of the JRA, a person who is aggrieved by a decision to which the JRA applies may apply to the court for a statutory order of review in relation to the decision.  By section 7(1)(a) of the JRA, a reference to “a person aggrieved” by a decision includes a reference to “a person whose interests are adversely affected by the decision”.  The effect of section 26 of the JRA in this case is that the applicant was required to bring his application within 28 days of his receipt of the MAT’s decision and its reasons.
  10. [19]
    The applicant is out of time.  He seeks an extension.
  11. [20]
    His explanation for the delay is that he was not “aggrieved” by the decision of the MAT until September 2019 when it became clear to him that his expert, and WorkCover’s expert, would give evidence in his second injury common law claim to the effect that it was his first injury, not his second, which caused him significant loss. 
  12. [21]
    He further submitted that, upon a review, I would conclude that the MAT made relevant errors in reaching its decision about his first injury, warranting the setting aside of the decision about the first injury and an order that he be assessed by a differently constituted MAT.
  13. [22]
    The first respondent did not appear at this hearing, having been excused from doing so by Crow J on 28 October 2019.[4]
  14. [23]
    The second respondent submitted that the applicant was always aggrieved by the decision of the MAT about his first injury, but made a forensic decision to take no action in response to it at that time.  His explanation for the delay was not sufficient to warrant an extension of time.  And regardless, the MAT made no jurisdictional error.
  15. [24]
    For the reasons which follow, I dismiss the applicant’s application.

Background

  1. [25]
    Jason Allwood was employed by an IT company (BES Information Technology Systems) from 2005 until 2014.  Over time, between 2008 and 2014, he became distressed about certain experiences and events in the workplace, including (but not only) –
  • finding, on a client’s computer, a file bearing a name suggesting that it contained child pornography;
  • his employer failing to take any action in response to his finding the file (which did in fact contain child pornography); and
  • being directed to engage in fraudulent activity.
  1. [26]
    On 18 July 2014, the CEO of the company had a conversation with him about his taking two days of bereavement leave after the death of his grandmother.  The conversation left him feeling angry and upset.  Later that day, his wife found him distraught.  He had taken an overdose of medication.  He told his wife that he was feeling suicidal.  She encouraged him to seek help, which he did. 
  2. [27]
    He first engaged with the Public Mental Health Services of the Princess Alexandra Hospital on 21 July 2014.  He was admitted to that hospital for five days after a suicide attempt on 31 July 2014.  He has received psychiatric and psychological treatment ever since.
  3. [28]
    He has not worked since 18 July 2014.

WorkCover claims

  1. [29]
    As the following chronology reveals, the applicant’s case is complex and there has not been consistent identification of the time periods to which each of the applicant’s claims relate.

Claim #043

  1. [30]
    Mr Allwood made an application for compensation to WorkCover on 21 July 2014 for an injury which he described as “Psychological system in general, Depression” (“claim #043”).  He said that his injury happened at 8.15 am on 21 July 2014.[5]
  2. [31]
    On 25 July 2014, Mr Allwood submitted a “Psychological and Psychiatric Claim Information Summary” to WorkCover.  I do not appear to have this document.  In other material, it is said to have contained an outline of Mr Allwood’s symptoms (anxiety, stress and depression) and identified the issues which caused his anxiety to evolve, from 2009.[6]
  3. [32]
    The material tendered does include another claim information summary document dated 29 July 2014.[7]  In that form, Mr Allwood nominated 18 July 2014 as the date of injury.  He said he first sought treatment for his injury on 21 July 2014.  He nominated as his symptoms “anxiety, stress and depression” and said that his symptoms started “four to five years prior to the incident”.  He said that his symptoms “escalated on Friday 18 July 2014 due to the confrontation with the CEO”. 
  4. [33]
    The material tendered reveals that Shine Lawyers advised WorkCover that they were acting for Mr Allwood in August 2014.  It is said that they stated that he was “injured over a period of time from 18 July 2014” – his injuries being acute depression and bulimia nervosa.
  5. [34]
    A “List of Stressors” for “Injury date August 2008 to 8 September 2014” was sent to WorkCover by Shine Lawyers on 14 October 2014.[8]  Eight September 2014 is, of course, beyond the end date of claim #043.
  6. [35]
    The list nominated six stressors for claim #043 which are summarised briefly as follows.  Stressor 6 concerned his employer’s behaviour after 21 July 2014. –

1

Between August 2008 to January 2009

Inappropriate file content – the applicant noticed a file named “12 year old girl gets fucked” on a client’s computer during a backup and his employer failed to take any action in response to it.

 

2

Between 28 May 2013 and March 2010

Unconscionable conduct – including the logging of fake jobs; fraudulent laptop repairs and falsifying chargeable hours.

 

3

2011/2012

Workload/Targets (which Mr Allwood found unrealistic); Service Level Agreement Breaches and Unreasonable Management

 

4

September 2009 to “Present”

Comments – including comments about Mr Allwood’s weight loss (he lost a substantial amount of weight between 2008 and 2009); the sending or displaying of photographs showing him at a heavier weight, and a comment that he was “lucky” to have his job.

 

5

2010

Professional development (which concerned his treatment during pay reviews and hurdles to his promotion)

 

6

July 2014 until 8 September 2014

Inappropriate Emails from BES and Intimidation

The list of stressors under this section began with the following: ‘Below are a list of Emails received by me directly from Alexa Bowen [the CEO] after BES was advised by Dianne Allwood of the seriousness of my current condition”.

The emails were disparaging of the applicant.

 

WorkCover’s rejection of claim #043

  1. [36]
    On 25 November 2014, by letter, WorkCover rejected Mr Allwood’s claim #043, on the basis that he had not sustained an injury as per sections 32(1)(b) and 32(5) of the WCRA
  2. [37]
    A relevant “injury” was defined under section 32(1)(b) of the WCRA as “personal injury arising out of, or in the course of, employment, if – for a psychiatric or psychological disorder – the employment is the major significant contributing factor to the injury”.  Under section 32(5), an “injury” did not include “a psychiatric or psychological disorder arising out of, or in the course of … the worker’s expectation or perception of reasonable management action being taken against the worker”.[9]    
  3. [38]
    The author of WorkCover’s letter referred, in her reasons, to her discussions with Mr Allwood’s solicitors, during which she informed them that stressors which were said to have occurred after 21 July 2014 were “not being considered” because they happened after the date on which Mr Allwood “first decompensated” and “as such [were] not considered to be the major contributing factor” to his current diagnosis.

Review by Regulator of claim #043

  1. [39]
    On behalf of the applicant, Shine Lawyers applied to the Workers’ Compensation Regulator to review that decision on 27 January 2015.[10] 
  2. [40]
    In its submission to the Regulator, Shine Lawyers submitted inter alia that –[11]
  • WorkCover erred in determining that any stressors or evidence “post 21 July 2014” should not be considered as they were not a major contributing factor to the applicant’s decompensation – all stressors constituted harassment from the CEO; and
  • there was evidence that the major contributing factor to the applicant’s “aggravation of his symptoms” after his discharge from hospital was ongoing contact from BES.
  1. [41]
    On 15 April 2015, the Regulator set aside WorkCover’s decision; directed it to obtain further evidence and directed it to make a fresh decision within 10 days of receiving that evidence.[12] 
  2. [42]
    In its reasons, the Regulator noted that “despite Mr Allwood’s application having been made for an aggravation of a pre-existing injury in accordance with the medical certificate issued by Dr Thackwray [Mr Allwood’s general practitioner], the submissions in support of Mr Allwood’s application for review seek to significantly expand the claimed injury to a period to include from August 2008” (my emphasis).  
  3. [43]
    The Regulator observed that “the scope” of the application had been amended to include “acute depression and bulimia nervosa with stressors allegedly occurring between the period August 2008 to 8 September 2014”. 
  4. [44]
    The Regulator continued, “Based on the current available evidence, I am unable to determine whether there is the necessary causal connection between the events that Mr Allwood alleges to have occurred from 2008 and his claimed injuries.  Therefore … I am returning the matter to WorkCover to obtain further evidence and make a decision in relation to Mr Allwood’s entitlement to compensation”.   

Claim #043 returned to WorkCover for re-consideration and rejected

  1. [45]
    On 9 October 2015, WorkCover again rejected Mr Allwood’s application for compensation – primarily on the basis of the report of Dr Prabal Kar, an Independent Medical Examiner, dated 10 September 2015.[13]  Dr Kar was of the opinion that Mr Allwood did not have a work-related psychiatric condition or impairment, rather, he displayed borderline personality traits.  WorkCover was also of the view that the major contributing factors to Mr Allwood’s diagnosis were, in effect, reasonable management actions.

Claim #627

  1. [46]
    Mr Allwood made another claim for compensation (“claim #627”) dated 12 January 2015.  It was accompanied by a Workers’ Compensation Medical Certificate issued by Dr Thackwray stating that his symptoms of depression had been “aggravated recently by increased work place harassment by CEO”.[14]  The application form itself states the date of injury at 22 July 2014 at 12:00 am, however the claim clearly contemplates that the injury took place over a period of time.

WorkCover’s rejection of claim #627

  1. [47]
    This second claim was also rejected by WorkCover on 9 October 2015.[15]  WorkCover was of the view that Mr Allwood did not sustain a relevant “injury” under section 32(5) of the WCRA because his injury was caused by reasonable management action taken in a reasonable way.

Review by Regulator of claim #043 and claim #627

  1. [48]
    On 8 January 2016, Mr Allwood, through his lawyers, applied for a review of both WorkCover decisions of 9 October 2015.[16] 
  2. [49]
    The applicant’s lawyers had by then obtained a report from a psychiatrist, Dr Dwyer.[17]  Dr Dwyer’s report was provided to the Regulator in support of the application to review the decision about both claims.[18]  I will interrupt the claims chronology to discuss its contents now.

Dr Dwyer’s report – dated 24 November 2015

  1. [50]
    Mr Allwood’s account of events to Dr Dwyer included reference to work related events which occurred after his discharge from hospital (in August 2014), including his –
  • receiving copies of emails sent by the CEO to her husband, which he found upsetting;
  • being accused by the CEO of fraudulently gaining access to those emails in January 2015;
  • being required to attend a meeting about his access to those emails in January 2015 – which he was able to avoid on the strength of a letter from his treating doctor;
  • being required to attend a later meeting about his access to those emails, from which he was not excused; and
  • not attending that meeting and having his employment termination.
  1. [51]
    Dr Dwyer was of the opinion that there was a direct correlation between the work events described by Mr Allwood and his (as diagnosed by Dr Dwyer) major depressive disorder, adjustment disorder and eating disorder.  He said –[19]

… Mr Allwood’s disturbed eating developed as a maladaptive coping mechanism to deal with the stress he was experiencing in regards the child pornography.  His depressive disorder and adjustment disorder occurred in the context of prolonged stress regarding fraudulent activity at his workplace and the attitude of his managers to that activity.  Furthermore, unreasonable behaviour by his managers, especially [the CEO], for example, her response to him taking leave for the death of his grandmother, the derogatory emails that she sent, and the January 2015 letter [about the emails and the meeting], all clearly had very significant effects on Mr Allwood’s mood and anxiety.  It was not unreasonable that Mr Allwood developed those symptoms in response to such stressors.

  1. [52]
    Dr Dwyer noted that Mr Allwood’s eating disorder was at its greatest severity in late 2008/early 2009. 
  2. [53]
    He noted that Mr Allwood’s major depressive disorder and adjustment disorder with anxiety were at “their most severe” in mid to late 2014.[20]  He continued, “Although there had been some improvement in Mr Allwood’s mood and anxiety he described persistent symptoms at the time of interview”.  His “significant symptomatology” was notwithstanding the extensive treatment which he had received.[21]  Dr Dwyer said that Mr Allwood’s “[s]everely impaired concentration, low energy, loss of motivation, feelings of guilt and strong anxiety have all contributed to Mr Allwood being unable to return to work”.[22] 
  3. [54]
    Dr Dwyer undertook a PIRS assessment of Mr Allwood.  He determined his percentage impairment at 17 percent.  He expressed his conclusion as follows (my emphasis) –

Mr Allwood has developed major depressive disorder, adjustment disorder with anxiety and an eating disorder in relation to events that occurred at work between 2008 and 2015.  He was suffering persistent symptoms though there had been some improvement with treatment.  I recommend further psychiatric and psychological treatment in the form of psychotropic medications and cognitive behaviour therapy.  Without treatment, Mr Allwood would suffer 17% permanent impairment.

  1. [55]
    Although Dr Dwyer’s report was submitted in support of each claim, Dr Dwyer did not consider separately the injuries the subject of each claim.  In other words, Dr Dwyer did not differentiate between the injury the applicant had suffered by 21 July 2014 and the injury he suffered thereafter.  Nor did he consider the separate contribution of the injuries, the subject of each separate claim, to Mr Allwood’s percentage impairment.

The applicant’s submissions on the reviews

  1. [56]
    The applicant’s lawyers did not file separate submissions in respect of each review.  Nor did they differentiate, in their one set of submissions, between the claims.
  2. [57]
    They submitted inter alia that WorkCover erred in determining that the major contributing factors to Mr Allwood’s psychiatric injury were “the actions of reasonable management”.[23]

WorkCover’s rejection of claim #043 confirmed; WorkCover’s decision to reject claim #627 set aside

  1. [58]
    On 15 April 2016, the Regulator confirmed one decision and set aside the other.
  2. [59]
    It confirmed the decision of WorkCover to reject claim #043.  The Regulator was persuaded that the applicant had suffered a work-related injury of a psychiatric nature and that his employment was a major significant contributing factor to the injury, but found that the injury arose out of reasonable management action taken in a reasonable way. 
  3. [60]
    The applicant appealed against this decision to the Queensland Industrial Relations Commission.  The appeal and its outcome are discussed below. 
  4. [61]
    On 15 April 2016, the Regulator set aside WorkCover’s decision on claim #627.[24] 
  5. [62]
    Because the Regulator had doubts about the way in which the derogatory emails came to the attention of the applicant (as I understand it, the Regulator was not persuaded that the applicant had not, in an unauthorised way, obtained access to those emails), they were not “further considered” by the Regulator “as contributory to the aggravation” of Mr Allwood’s psychiatric condition. 
  6. [63]
    However, the Regulator was satisfied that the letters sent by BES to the applicant on 8 and 9 January 2015 “were contributory” to Mr Allwood’s psychiatric illness and that his injury arose out of this communication.  The Regulator concluded that the applicant’s employment was the “major significant contributing factor” to the aggravation of the applicant’s injury. 
  7. [64]
    The Regulator concluded that the applicant was entitled to compensation for an aggravation of his anxiety and depression. 

Appeal from Regulator to Queensland Industrial Relations Commission – re claim #043

  1. [65]
    The applicant successfully appealed against the decision of the Regulator to uphold WorkCover’s decision in respect of claim #043: see Allwood v Workers’ Compensation Regulator [2017] QIRC 088.[25]
  2. [66]
    Of relevance to this application, I note the following about that decision –
  • It recognised that the relevant stressors for claim #043 occurred between 2008 and 18 July 2014.
  • It included reference to the expert opinion of Dr Dwyer which took into account the derogatory emails sent after 18 July 2014 and one of the January 2015 letters.
  • In expressing his opinion at [12] that “the expert evidence of Dr Dwyer established that had it not been for the employment the injury would not have been sustained”, Deputy President O’Connor did not differentiate between the injuries the subject of each of the claims.
  • At [19], Deputy President O’Connor explained that he found the evidence of Dr Dwyer more persuasive than the evidence of Dr Kar.
  • At [56], Deputy President O’Connor found that there was a substantial connection between Mr Allwood’s employment and his injury and that his employment was a major significant contributing factor to his injury.
  • At [85], Deputy President O’Connor concluded that the combination of the work related incidents (nominated by Mr Allwood as the stressors) “led to a situation in which [Mr Allwood] could no longer cope.  The medical evidence of Dr Dwyer was sufficient to draw the causal relationship between the incidents and the development of the appellant’s psychiatric and psychological symptoms”.  Mr Allwood’s injury was not excluded as compensable by the operation of section 32(5) of the Act.
  • At [86], Deputy President O’Connor concluded that Mr Allwood had suffered a personal injury, namely a psychiatric or psychological disorder.

WorkCover accepted both claims

  1. [67]
    After this protracted process of reviews and appeals, WorkCover accepted both claims.
  2. [68]
    It accepted claim #043 as a claim for –
  • post traumatic stress disorder;
  • major depressive disorder;
  • panic disorder with agoraphobia;
  • generalised anxiety disorder.
  1. [69]
    The relevant dates for claim #043 seem to be from “2008” to 21 July 2014. 
  2. [70]
    It accepted claim #627 as a claim for the “exacerbation” of Mr Allwood’s eating disorder and the “aggravation” of his anxiety and depression.
  3. [71]
    The relevant dates for claim #627 seem to be from 22 July 2014 until January 2015.

Referral of claims to the Medical Assessment Tribunal – Psychiatric

  1. [72]
    Mr Allwood saw several experts over the years – for treatment and for the purposes of his claims.  The experts held different opinions about Mr Allwood’s diagnoses; the way in which his injuries had been caused; his prognosis and his capacity to work.
  2. [73]
    On 8 October 2018, WorkCover informed Mr Allwood’s then treating psychiatrist (Dr Robertson) that “[g]iven the conflicting medical opinions the next step for WorkCover Queensland is to arrange for Jason to attend the Medical Assessment Tribunal”.
  3. [74]
    WorkCover referred both claims to the MAT and they were heard on the same day.
  4. [75]
    The “terms of reference” for claim #043, which stated 21 July 2014 as the “date of injury”, were as follows –

Terms of reference

This reference is for assessment of any permanent impairment.

The matter is now referred to the Tribunal in accordance with the Workers’ Compensation and Rehabilitation Act 2003.  The terms of reference to the Tribunal are:

Section 505

  1. (2)
    The tribunal must decide –
  1. (a)
    whether the worker has sustained a degree of permanent impairment; and
  1. (b)
    if the worker has sustained a degree of permanent impairment –
  1. (i)
    the degree of permanent impairment resulting from the injury; and
  1. (ii)
    the degree of permanent impairment for the injury.
  1. [76]
    The terms of reference for claim #627, which stated 22 July 2014 as the “date of injury”, were as follows –

Terms of reference

This reference is for assessment of whether you have an ongoing incapacity related to the initial injury.

The matter is referred to the Tribunal in accordance with the Workers’ Compensation and Rehabilitation Act 2003.  The terms of reference to the Tribunal are:

Section 502

  1. (3)
    The tribunal must decide –
  1. (a)
    whether, when it makes its decision, there exists in the worker an incapacity for work resulting from the injury for which the application for compensation was made; and

 (b) whether the incapacity –

  (i) is total or partial; and

  (ii) is permanent or temporary.

This reference is for assessment of any permanent impairment.

The matter is now referred to the tribunal in accordance with the Workers Compensation and Rehabilitation Act 2003.  The terms of reference are:

Section 505

  1. (2)
    The tribunal must decide –
  1. (a)
    whether the worker has sustained a degree of permanent impairment; and
  1. (b)
    if the worker has sustained a degree of permanent impairment –
  1. (i)
    the degree of permanent impairment resulting from the injury; and

  (ii) the degree of permanent impairment for the injury.

  1. [77]
    Mr Allwood and his wife attended at the MAT on 7 December 2018. 
  2. [78]
    Mr Allwood received the MAT’s decision and its reasons on 20 December 2018.

The decisions of the MAT

  1. [79]
    The MAT delivered a separate decision for each claim in accordance with the terms of reference for each claim.[26]
  2. [80]
    In its decision on claim #043, the MAT’s summary of Mr Allwood’s “Relevant clinical history” (insofar as it is taken from documents) is perhaps a little abbreviated. 
  3. [81]
    For example, it omits detail about Mr Allwood’s clinical state during his admission to the Princess Alexandra Hospital (after his second suicide attempt in late July 2014) and whilst undertaking programs at the Toowong Private Hospital, although it refers to his suicide attempts.  It does not explicitly refer to Mr Allwood’s eating disorder. 
  4. [82]
    As part of the summary of Mr Allwood’s clinical history, the MAT said (my emphasis) –[27]

At interview, Mr Allwood reported to the tribunal that as of July 2014, when this claim was considered to have ended, he was experiencing depressed and anxious mood, neurovegetative disturbance, impaired energy, libido and concentration.  He was experiencing frequent anxiety with tremulousness and sweating.  His trichotillomania was active.  He had persistent symptoms consistent with Post-Traumatic Stress Disorder in that he was hypervigilant, easily startled, agitated, suffering impaired concentration, avoidant of triggers and experiencing a range of re-experiencing phenomena.

Mr Allwood was going to work and working full-time.  He was very anxious driving to work.  Away from work he was socialising with his wife and, to a limited extent, with his family overseas.  He was not pursuing very many recreational activities.  He was able to travel on a plane.  He was struggling with concentration at work, but was completing his duties.  He was somewhat irritable and frustrated at home, but there were no angry outbursts and no threat of separation.

  1. [83]
    Under the heading “Clinical evaluation and findings”, the MAT said (my emphasis) –[28]

There was no Mental State Examination pertaining to this Claim ([#043]) as it is a historical claim.

With respect to self-care and personal hygiene and grooming, Mr Allwood reports that his hygiene and grooming were unimpaired.  He was doing housework to an effective degree …

With respect social and recreational activities, Mr Allwood reports that he had greatly reduced the frequency of seeing his friends.  He was socialising with family but more passively.  He still enjoyed cooking.

With respect to travel, Mr Allwood reports that he was very impatient driving and experienced anxiety driving to work.  He was able to fly to the UK.

With respect to social functioning, Mr Allwood reports that his marriage was stable and supportive with no separations or conflict.  He is having irritable outbursts at work. 

With respect to concentration, persistence and pace, Mr Allwood reports that his concentration was reduced at work and he could not focus on watching a full movie.  He was paying bills and managing money effectively.

With respect to employability, Mr Allwood was working full-time, although experiencing emotional difficulties.

The tribunal accepts that as of mid-to-late July 2014, Mr Allwood had developed a range of psychiatric conditions which included Post-Traumatic Stress Disorder, Major Depressive Disorder, and Panic Disorder with Agoraphobia and Generalised Anxiety Disorder. 

His condition, at the time that he stopped work was not stable and stationary.  He continued to report a range of symptoms over the next four years.  He was continuing psychological and psychiatric treatment from that date forward.  The history of his symptomatology from that time was consistent with the bulk of the reports from independent assessing psychiatrists and his psychologist.

The tribunal determined that as of 18 July 2014, Mr Allwood was experiencing a partial impairment.  He was temporarily and totally incapacitated for work at that time.

The tribunal considers that Mr Allwood’s condition is stable and stationary in accordance with paragraph 1.15 of the Guidelines for Evaluation of Permanent Impairment, 2nd edition (the Queensland Guide).

  1. [84]
    That paragraph says: 

Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and is stable and stationary.  This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year or without medical treatment.

  1. [85]
    The MAT then completed the “PIRS rating form” (PIRS is the acronym of the Psychiatric Impairment Rating Scale).  The MAT determined the “class” from which the rating is calculated for each “PIRS category” primarily, it seems, on the basis of Mr Allwood’s self-report about each impairment at the relevant time (that is, by mid-to-late July 2014).
  2. [86]
    Applying PIRS, the MAT assessed Mr Allwood’s impairment at 4 per cent.
  3. [87]
    The MAT expressed its decision as follows –[29]

Decision

Following consideration of all medical and other evidence presented, interview and clinical examination of the worker and with reference to the Guidelines for Evaluation of Permanent Impairment, 2nd edition, the tribunal determined that:

Section 505

  1. (3)
    (a) the worker has sustained a degree of permanent impairment;
  1. (b)
    the degree of permanent impairment resulting from the injury is four (4) percent.
  1. [88]
    In its decision on claim #627, the MAT noted that WorkCover had accepted, as relevant injuries, “Exacerbation of Eating Disorder and aggravation of Anxiety and Depression”.
  2. [89]
    Under the heading “Medical details of injury”, the MAT said –[30]

Mr Allwood was an IT service manager … who suffered a number of adverse events during the course of his employment.  These adverse events are the subject of a separate claim ([#043]) which was accepted by WorkCover Queensland.

Mr Allwood lodged a further claim for compensation ([#627]) and after a process of review, WorkCover Queensland accepted that, in addition to other psychiatric diagnoses, Mr Allwood had developed an Eating Disorder and suffered an aggravation of Anxiety and Depression, over the period of time from 22 July 2014 to January 2015. 

The other matters are detailed in a separate report on claim [#043] which was also assessed by the tribunal today.

The tribunal is concerned with respect to the accepted claim [#627] pertaining to the Eating Disorder and Anxiety and Depression.

  1. [90]
    Under the heading “Relevant clinical history”, the MAT noted that, as a consequence of “the anxiety he was experiencing in the workplace”, Mr Allwood “developed a pattern of excessive exercising bingeing and purging on weekends in an effort to alleviate the anxiety he felt about any return to work” – particularly on Sunday afternoons to manage the distress he felt about returning to work on Mondays.[31] 
  2. [91]
    The MAT also noted that Mr Allwood –
  • started using exercise as a form of stress management in 2008;
  • experienced a 35 kg weight loss over several months in 2008; and
  • experienced an aggravation of his anxiety and body image disturbance by his colleagues repeatedly showing his “fat photos” in 2008/2009, despite his requests that they stop. 
  1. [92]
    The MAT continued (my emphasis) –

Mr Allwood continued to struggle with body image disturbance, panic attacks and reluctance to leave home.  His current treating Psychiatrist, Dr J Robertson, considered that the eating disorder behaviour and anxiety was at its worst in late 2014, at which time Mr Allwood’s weight had dropped to 66 kg.  With treatment, his weight rose to 75kg by September 2018, but he was continuing to experience disturbed body image, daily panic attacks, reluctance to leave home, nightmares concerning work events, intrusive recollections of work events, and a disturbed body image.

At interview with the tribunal, Mr Allwood reported that he continues to count calories and restricts himself to one meal per day … He has a disturbed body image and despite being only 75 kg, he sees himself as being grossly overweight.  He is fearful of resuming exercise, believing that should he start to exercise again he would not be able to stop.

Mr Allwood continues to experience depressed and anxious mood.  His energy, motivation and volition are all low.  His sleep is disturbed by initial insomnia and nightmares regularly.  He continues to experience an exaggerated startle reflex, is alert to dangers for himself and his wife, avoids triggers and reminders of the previous work-related events and has a general sense of detachment from others.

He is effectively housebound.  He will only leave the house to attend appointments with his psychiatrist, or if supported and accompanied by his wife.  They recently took a holiday to Cambodia for two weeks, but he felt anxious and uncomfortable throughout this time.  He has not returned to any form of employment and has not undertaken any voluntary activities.  He is undergoing in vivo desensitisation to address his agoraphobic cognitions.

Mr Allwood’s presentation was consistent with the reports provided by the vast majority of assessing psychiatrists.

  1. [93]
    As part of its “Clinical evaluation” of Mr Allwood, the MAT conducted a mental state examination for this claim.[32]  It then asked Mr Allwood to report on matters relevant to the PIRS – including his self-care and personal hygiene, his eating and sleeping; his social and recreational activities; his social functioning and his concentration.
  2. [94]
    His self-report about matters relevant to his psychiatric impairment for the purposes of claim #627 was bleaker than his self-report about matters relevant to his psychiatric impairment for the purposes of claim #043.  For example, he reported that, as at 7 December 2018 –
  • he was showering and shaving only every two days;
  • he required prompting by his wife to cook;
  • his eating was not normal – it was of poor quality and he was restricting his food intake;
  • he had reduced sleep and nightmares;
  • he avoided going out and did not socialise at all;
  • he had minimal interest in, and took minimal pleasure from, any activity;
  • his driving was limited to short distances in familiar locations;
  • his concentration was reduced to 20 minutes;
  • his reading was reduced to one page;
  • he had trouble following a sequence of tasks and could not multi-task;
  • he was unable to work in his original position;
  • he could not leave the house to volunteer without his wife.
  1. [95]
    The MAT continued –[33]

The tribunal considers that Mr Allwood is unable to engage in any suitable employment for any employer and cannot earn a wage …

The tribunal accepts that Mr Allwood was suffering from an eating disorder.

The tribunal also accepts that there was an exacerbation of Anxiety and depression.  This exacerbation pertained to diagnoses of Post-Traumatic Stress Disorder, Major Depressive Disorder, Panic Disorder with Agoraphobia, and Generalised Anxiety Disorder, arising out of an earlier over a period of time claim detailed in a separate report.  This pre-existing condition was assessed at four (4) percent permanent impairment by the tribunal today.

The tribunal considers that Mr Allwood’s condition is stable and stationary...

  1. [96]
    The MAT then completed the PIRS rating form. 
  2. [97]
    The MAT assessed his impairment at 24 percent.  Taking into account his pre-existing impairment of 4 percent – his impairment for claim #627 was assessed at 20 percent. 
  3. [98]
    The MAT expressed its decision as follows –[34]

Decision

Following consideration of all medical and other evidence presented, interview and clinical examination of the worker, the tribunal determined that:

Section 502

  1. (3)
    (a) as at 7 December 2018 there exists in the worker an  incapacity for work resulting from the injury for which the application for compensation was made; and

(b) the incapacity is –

 (i) partial; and

 (ii) permanent

 

AND

Following consideration of all medical and other evidence presented, interview and clinical examination of the worker with reference to the Guideline for Evaluation of Permanent Impairment, 2nd edition, the tribunal determined that:

Section 505

  1. (2)
    (a) the worker has sustained a degree of permanent impairment;               and
  1. (b)
    the degree of permanent impairment from the injury is twenty (20) percent.

The applicant’s common law claim

Dr Chalk’s opinion

  1. [99]
    At the request of WorkCover’s solicitors, the applicant was examined by Dr John Chalk, for the purposes of his common law action regarding claim #627, on 13 November 2019.[35]
  2. [100]
    Dr Chalk agreed that Mr Allwood suffered from a major depressive illness.  He disagreed with previous diagnoses of post-traumatic stress disorder on the basis that Mr Allwood was not exposed to a “Category A” event (that is, as I understand it, a traumatic event) – because he did not see the child pornography and because his condition emerged over a period of time.[36]
  3. [101]
    Dr Chalk was in little doubt that, at the time Mr Allwood ceased work, he was suffering from an Axis 1 psychiatric disorder – namely a major depressive illness which was of such significant severity as to cause him to cease work.  Events “post 22 July 2014” led to an aggravation of his symptoms.  However, he regarded the aggravation (after 22 July 2014) to be “minor in contrast to the events that had preceded it”.[37] 
  4. [102]
    Dr Chalk was of the opinion that Mr Allwood would not have recovered (from the injury he suffered prior to 22 July 2014) even if the events post 22 July 2014 had not occurred.  In his opinion, the post 22 July 2014 events did not “profoundly influence” the course of Mr Allwood’s condition.[38]
  5. [103]
    He did not agree with the MAT’s opinion that that 4 percent of Mr Allwood’s impairment was related to claim #043 and 20 percent was related to claim # 627.  In his view, Mr Allwood’s difficulties had emerged primarily as a result of the primary claim. 
  6. [104]
    Dr Chalk conducted a PIRS assessment of Mr Allwood, which determined Mr Allwood’s impairment at 17 percent.  He was asked to apportion Mr Allwood’s impairment between the events of 2008 to 21 July 2014 and the events post 22 July 2014.  Dr Chalk did not consider an apportionment to be appropriate.  He said –[39]

In my view, this man’s difficulties are primarily due to events prior to 22 July 2014.  In my view, whilst there may have been some aggravation of his difficulties post that date, his impairment relates to events prior to that date.  Thus, in my view, no apportionment is appropriate.

Dr Dwyer’s opinion

  1. [105]
    On 17 September 2019, Mr Allwood’s counsel and his solicitor had a telephone conference with Dr Dwyer about the difference of opinion between the MAT and Dr Chalk on the apportionment of Mr Allwood’s impairment between his claims.
  2. [106]
    Dr Dwyer agreed with Dr Chalk that Mr Allwood’s impairment was primarily caused by the events the subject of claim #043.  Dr Dwyer was of the opinion that 80 percent of Mr Allwood’s impairment was attributable to his first claim and 20 percent to his second claim.  The apportionment, based on a 22 percent whole person impairment, would be 17.6 percent for claim #043 and only 4.4 percent for the common law claim.

The applicant’s application for an extension of time

The law

  1. [107]
    I was referred to numerous authorities on the court’s approach to an application for an extension of time in this context.
  2. [108]
    In Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663, Moynihan J said (at page 665) –

It seems to me that, prima facie, proceedings commenced outside the limitation period ought not to be entertained unless the applicant shows an acceptable explanation of the delay and that it would be fair and equitable in the circumstances to extend the time.  Such considerations, in cases such as the present, extend beyond considerations applying as between the applicant and the respondent and to include a wider public interest.  The same may be said of considerations of prejudice to the respondent and others consequent on the delay in bringing the application … [Also] the merits of the substantive application are a consideration relevant to granting an extension of time …

  1. [109]
    In Hoffman v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369, Thomas J said (at page 372) –

The principles upon which time may be extended in cases of this kind have been mentioned in a number of decisions … They include the existence of a satisfactory explanation, notions of what is fair and equitable in the circumstances, whether any prejudice will be occasioned to the respondent, the public interest, and (where such a view is possible) the merits of the substantial application for review.  There is some difference of view as to whether the provision of an adequate explanation for the delay is a pre-condition to allowance of such an application … Perhaps it is not [a pre-condition] but the absence of explanation for a delay must at least be a persuasive factor against granting an extension.

  1. [110]
    Earlier in that decision, Thomas J explained that whilst the court should, if it can conveniently do so, take into account the merits of the applicant for review for which the extension was sought, it was not normally possible, or even desirable to contemplate the merits or prospects of the applicant’s success when and if the decision is referred back to the decision-maker except in a very limited way.  His Honour continued (at 370) –

The function of the court under the Judicial Review Act is not that of reviewing decisions on the merits, but rather of ensuring the procedural fairness and protecting applicants from legal errors of the kind listed in s. 20(2).  That is not to say that a court will always be blind to the ultimate picture if it is clearly enough in view …

  1. [111]
    In Westwood v Human Rights & Equal Opportunity Commission [2004] FCA 153, Conti J summarised the relevant principles by reference to Wilcox J’s decision in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344.  Conti J said, at [28] that the principles (as they applied to the Commonwealth Act) may be summarised as follows –
  1. (i)
    although the Judicial Review Act does not in terms place any onus upon an applicant for extension, and special circumstances need not be shown, the court will not grant the application unless positively satisfied that it is proper to do so, and the prescribed period is not to be ignored; indeed it is the prima facie rule that proceedings commenced outside that period of time will not be entertained;
  1. (ii)
    it is a pre-condition of the exercise of discretion in extending the time for making any such application that the applicant for extension must show an acceptable explanation of the delay, and that it is fair and equitable in the circumstances to extend the time;
  1. (iii)
    a distinction is to be drawn between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision, and a case where the decision-maker was allowed to believe that the matter was finally concluded; the reasons for that distinction are said to be not only the need for finality of disputes, but also the fading from the human memory problem that inherently arises the longer review of a decision is delayed;
  1. (iv)
    any prejudice to the respondent to the proceedings, including any prejudice in defending the proceedings occasioned by the delay is material; moreover the mere absence of prejudice is not enough to justify the grant of an extension; in that context, public considerations may often intrude; thus a delay which may result, if the application is successfully, in the unsettling of other people is likely to prove fatal to the application;
  1. (v)
    the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted; and
  1. (vi)
    considerations of fairness as between the applicant and other persons otherwise in a like position are also relevant to the manner of exercise of the Court’s discretion.
  1. [112]
    Conti J went on to explain that there had been a qualification to this longstanding dictum of Wilcox J, as per Hill J in Kim Hyun Tai v Bolkus (1996) 42 ALD 249 at 252 –

The comment of his Honour in respect of the first guideline, that it is a pre-condition to the exercise of discretion that the applicant show an acceptable explanation of a delay might, if seen as a statement of law, require some modification … Certainly it may be expected that an explanation will be given and the strength or otherwise of that explanation will be a relevant matter to be considered.  So, too, would failure to give any explanation at all.  But I would not wish to foreclose the possibility that the justice of allowing an extension of time was so great that failure to give an explanation operated to disentitle an applicant for review.

In the present case no explanation at all has been given.  The failure to give an explanation is a matter to be taken into account.  It does not, however, in my view, lead to the conclusion that the application should automatically be disallowed.

  1. [113]
    In Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68, Applegarth J succinctly expressed the relevant considerations as follows at [77] –

In determining whether to grant an extension of time pursuant to s 26 of the JRA, consideration should be given to:

  1. (a)
    the explanation given for the delay;
  1. (b)
    whether the grant of an extension would be fair and equitable in the circumstances; and
  1. (c)
    the merits of the application for review.
  1. [114]
    Of (c) his Honour also said, at [80] (footnotes omitted) –

In some cases in which an extension of time is sought within which to commence judicial review proceedings it is not possible to form a view about the applicant’s prospects of success.  Often it is not appropriate in determining an application for an extension of time to embark upon an assessment of the merits.  However, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be relevant to the application for an extension of time …

  1. [115]
    Those authorities have guided my approach in this matter.

The explanation given for the delay: Applicant’s submissions

  1. [116]
    The MAT’s decision about claim #043 meant that the applicant was not entitled to pursue a claim for common law damages based on his first injury.
  2. [117]
    Although the decision had that effect, the applicant submitted in writing that he was not aggrieved by it (when it was made) “because he was entitled to bring a claim for damages with respect to the second injury, and those damages, based on the evidence, would compensate him for the harm he suffered as a result of the first and second injuries.  This is so because the only evidence with respect to apportionment of the impairment between the first and second injuries was that of the MAT”.
  3. [118]
    He went on to submit that it was not until “receipt of the evidence from Dr Dwyer on 17 September 2019 [that] it became clear that [his] claim for damages as a result of the second injury could not be such that would compensate him for the psychiatric injury that he suffered during his employment”.
  4. [119]
    I note that there was no evidence about the reason for the delay tendered in support of the application.  For example, there was no evidence from the applicant or his lawyers about the way in which the decision of the MAT was received by them: no evidence that they reasoned at the time that while the applicant was deprived by the decision of an entitlement to bring a common law claim in relation to his first injury he was not “aggrieved” by the decision because he was left with the second injury common law claim and its promise of substantial damages on the basis of the MAT’s assessment  The applicant’s counsel submitted, essentially, that I was able to draw those inferences from the facts.  For the moment, I will assume that it is appropriate for me to do so. 
  5. [120]
    Counsel for Mr Allwood elaborated on this “not aggrieved by the decision” argument in oral submissions.  She said, in effect, that the applicant did not become aggrieved within time because it was only when Dr Chalk’s report was received that it “became clear that WorkCover was in a position to argue that the assessment of permanent impairment was incorrect and that the bulk of the damage caused to Mr Allwood was from the first of the injuries and not the second.  Then, when Dr Dwyer agreed with that assessment it became essentially impossible for Mr Allwood to argue against that”.[40]
  6. [121]
    Counsel submitted that had Mr Allwood made an application “before the reports of Dr Chalk or Dr Dwyer became available to him … it would simply have been based on his subjective belief that the Medical Assessment Tribunal was wrong … had he made an application at that time, it would have been open to the respondent to bring an application to strike out [his] application because he didn’t have standing”.[41]  She argued that “the evidence did not exist to say that he would be aggrieved by the decision” (my emphasis).[42]  She argued that there was no prejudice which flowed from the MAT’s decision “until Dr Dwyer agreed with Dr Chalk”.[43] 
  7. [122]
    I note here that whilst the timing of the receipt of Dr Chalk’s report may not have been a matter for the applicant, the notion that he had to wait until the report of Dr Dwyer became available before appreciating his position ignores the fact that Dr Dwyer’s opinion (about the MAT assessment) was available to the applicant and his lawyers whenever they chose to seek it. 
  8. [123]
    In support of the argument that the applicant was not aggrieved by the decision of the MAT until he received evidence contrary to it, counsel referred me to Shaw v Barker & Ors [2001] QCA 220 and Chilcott v The Medical Board of Queensland [2002] QSC 118 (Cullinane J). 
  9. [124]
    Shaw v Barker concerned an application for leave to appeal from a decision summarily dismissing an application for judicial review of a Minister’s decision on the basis that the applicant was not a person aggrieved by the decision.  Each member of the Court of Appeal expressed the view that the applicant’s interests were not impacted or affected by the Minister’s decision and leave was refused.
  10. [125]
    As I understand her arguments, counsel for the present applicant relied particularly upon Byrne J’s reasons in indirect support for the argument that the MAT’s decision did not prejudice the applicant (and thereby cause him to become a person aggrieved) until evidence contrary to it was received by him. 
  11. [126]
    The relevant decision in Shaw v Barker was the Minister’s decision to approve the assignment of an interest in a mining lease from “Pelsoil” to “RAG” (companies).  Byrne J’s discussion is necessarily fact specific.  My attention was drawn to the parts  of it which appear in bold below –

[18]  All these concerns are founded on the notion that the mining in which RAG has engaged, or might yet carry out, may impact adversely on the applicant’s interests; and as much may be assumed.  But that does not mean that the impugned decision – to approve the assignment of Pelsoil’s interest to RAG – involved the prospect of some adverse consequence for the applicant or his interests. 

[19]  Neither approval of the assignment, nor the assignment itself, could have prejudiced the applicant’s rights under the compensation agreement.  There is no suggestion that Portman had ceased to be bound by that agreement; and … the mining lease was subject to a condition that the holder comply with all the terms of any such agreement.  In these circumstances, as the Judge held, the assignment would permit the applicant to enforce the obligation to maintain the homestead against Portman, RAG, and, if Pelsoil had covenanted to do so, against Pelsoil.

  1. [127]
    The applicant argued –in effect – that he was in the same position.  He had, it was submitted “the ability to exercise his other rights with respect to his second injury up until Dr Dwyer’s report”.[44]
  2. [128]
    The applicant also referred me to paragraph [21] (and in particular to the phrases in bold below) in which his Honour said –

It was not suggested before the Judge, through evidence or argument, that the nature, extent or consequences of the mining and related activity might possibly have been different were it not for approval of the assignment.  And no case was advanced … to the effect that the identity of the miner might otherwise matter to the applicant or his interests: there was, for example, no suggestion that Pelsoil’s capacity or willingness to perform its obligations in connection with the lease or pursuant to the compensation agreement may have been different from RAG’s.

  1. [129]
    As I understood counsel’s argument, she was suggesting that the present applicant was not “aggrieved” as required only because the MAT’s decision might have had an adverse impact on him – as turned out to be the case.
  2. [130]
    The applicant did not attempt to draw any particular support for his argument from Chilcott beyond noting that Cullinane J said at [16] that, “The question whether a person is a person aggrieved will in each case turn upon the terms of the particular legislation, an analysis of its subject matter and the scope and purpose of the relevant statutory provisions”.

The explanation given for the delay: Second respondent’s submissions

  1. [131]
    The second respondent submitted that the applicant’s written submissions revealed that he made a conscious decision not to challenge the MAT’s decision – because he considered that the damages he would receive for his second injury would also compensate him for his first injury. 
  2. [132]
    In writing, the second respondent said –

… the explanation offered by the applicant does not warrant the granting of an extension of time in which to bring the application for judicial review.  The position of the applicant is that he clearly made a conscious decision not to challenge the Tribunal’s decision.  So much is evident from his submissions.  His sole explanation is reliant upon views expressed by medical practitioners as to the state of his psychiatric condition.  Whether their retrospective views are correct or not is beside the point and irrelevant.  The time limit imposed by the JR Act serves the purpose of bringing finality to decision-making processes.  Accordingly, the justification for an extension is opportunistic and no extension should be granted.

  1. [133]
    In oral submissions, Queen’s Counsel for the second respondent replied directly to the applicant’s submission that he was not aggrieved by the decision of the MAT until he received the opinion of Dr Chalk and the indication from Dr Dwyer that he, in effect, agreed with it.  He said –[45]

… my learned friend’s conflating issues.  I don’t take the point that he was not aggrieved, because he was always aggrieved because he got an adverse decision from the tribunal. 

  1. [134]
    He submitted that there was “nothing stopping” the applicant from seeking Dr Dwyer’s opinion about the apportionment prior to the hearing of the MAT.

Meaning of “a person who is aggrieved”

  1. [135]
    As Williams JA said in Shaw v Barker in 2001, there are numerous decisions on the proper meaning and construction of the term “person aggrieved”.  Those decisions establish that a person aggrieved is one whose rights or special interests have been adversely affected by an administrative decision.  Also –
  • The words “a person who is aggrieved” should not be given a narrow construction: Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421;
  • To be “aggrieved”, a person’s interests must be genuinely affected in a practical way by the decision: Lock the Gate Alliance Ltd v Chief Executive under the Environmental Protection Act 1994 [2018] QSC 22 citing Argos Pty Ltd v Corbell Minister for the Environment and Sustainable Development (2014) 254 CLR 394 at [48] per French CJ and Keane J, at [61] per Hayne and Bell JJ, and at [86] per Gageler J; and
  • The interests that may be adversely affected by a decision include, but are not confined to, legal rights, privileges, permissions or interests: Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394.
  1. [136]
    In Argos, Gageler J set out a three step approach at [76] (which was applied by Bowskill J in Lock the Gate) –

To draw a conclusion that a person meets the statutory description of "a person whose interests are adversely affected" by a decision requires: first, identification of a decision of the designated kind; secondly, examination of the legal or practical operation of that decision; and, thirdly, the making of a judgment that the legal or practical operation of the decision has been to result in an adverse effect on identified interests of the person. The nature of the requisite interests, and the nature and degree of the requisite adverse effect, depend on the statutory context in which the description appears.

Conclusion: there has been no satisfactory explanation for the applicant’s delay

  1. [137]
    As per Chilcott, having regard to the legislation which applies here (the WCRA), its subject matter and the scope and purpose of the statutory provisions under consideration – namely, to limit a worker’s entitlement to pursue a claim for common law damages – unquestionably, the applicant was a person “aggrieved”, in the section 7 JRA sense, by the decision of the MAT about his first injury as soon as the decision was made.  He was deprived by that decision of his entitlement, or legal right, to seek common law damages for his first injury.
  2. [138]
    There is no issue about whether or not the applicant’s interests were affected in a practical way by the MAT’s decision or whether he suffered prejudice as a consequence of it.  They unquestionably were and he unquestionably did.  The decision had an immediate practical and prejudicial effect on him: it left him unable to pursue an action for common law damages for his first injury. 
  3. [139]
    To say that the applicant was not aggrieved by the MAT’s decision when it was made, but became aggrieved months later, misconceives the meaning of a “person aggrieved” for the purposes of the JRA.  It conflates the applicant being a person aggrieved (as per section 7 of the JRA) by the decision with his reaction to it.
  4. [140]
    In the months between the MAT’s decision and the applicant’s lawyers seeking Dr Dwyer’s opinion about it – nothing had changed about the effect of the decision.  The decision had an adverse effect upon Mr Allwood’s legal rights as soon as it was made. 
  5. [141]
    If it were appropriate for me to draw inferences from the facts before me in the absence of evidence from the applicant or his lawyers about it – the inference which I would draw is that when the decision was made, the applicant believed he had, in effect, a “work around” solution. 
  6. [142]
    In my view, the correct analysis of the inferences which the applicant asks me to draw is that whilst he was aggrieved by the first decision, he was able to cope with it or deal with it because he believed that he would be successful in a substantial damages claim for his second injury which would provide him with money which he considered would sufficiently compensate him for his first and second injuries.
  7. [143]
    As it turns out – (if he indeed held that belief) that belief may not be correct but that is beside the point. 
  8. [144]
    As I have said, the applicant was always aggrieved by the decision.  He always had standing.  Dr Chalk and Dr Dwyer’s opinions about apportionment changed nothing about the decision or its effect – although upon his learning of their opinions he may well have felt aggrieved in an emotional sense, for obvious reasons. 
  9. [145]
    It follows that the applicant cannot rely upon an argument that he has only recently acquired standing (that is, only recently become aggrieved) in support of his application for an extension of time.
  10. [146]
    No other explanation for the delay has been provided.
  11. [147]
    The applicant made his second claim for an aggravation of an existing injury in January 2015.  The issue of apportionment was live from that point in time.  And a claim for common law damages had been in contemplation for years before the MAT’s decision (at least since November 2015). 
  12. [148]
    As I have noted above, in the course of her arguments about why the applicant was not “aggrieved” until recently, the applicant’s counsel submitted that the applicant was not aggrieved by the MAT’s decision because he was entitled to bring a claim in relation to his second injury, and “those damages, based on the evidence, would compensate him for the harm he suffered as a result of the first and second [injury]”.[46]  The “evidence”, to which counsel referred, was Dr Dwyer’s assessment of a 17 percent permanent impairment in 2015 arising out of the first and second injury considered overall.
  13. [149]
    The MAT’s decision was not evidence in the applicant’s common law claim.  Dr Dwyer had been engaged on the applicant’s behalf for that purpose. 
  14. [150]
    As the applicant’s counsel agreed, Dr Dwyer’s 2015 report, which was in the applicant/his lawyer’s possession at the time of the MAT’s decision, suggested “on its face” that the first injury was more significant than the second.  The applicant’s lawyers were not required to wait until Dr Chalk had prepared his report before discussing the MAT’s assessment and apportionment with Dr Dwyer.  Yet there was no evidence before me about why it was that Mr Allwood’s lawyers did not discuss the MAT assessment with Dr Dwyer (even in a preliminary way) soon after the MAT delivered its decision. 
  15. [151]
    Also, the submission that the only evidence of apportionment “available” at the relevant time for the bringing of this application was the MAT’s “evidence” implies that the applicant or his lawyers were required to be passive when it came to the acquisition of evidence.  That is not at all the case.  And there was no evidence before me to explain why Dr Dwyer had not been questioned about the MAT’s apportionment until after the applicant’s receipt of Dr Chalk’s opinion. 
  16. [152]
    In my view, the applicant has not satisfactorily explained the delay in bringing his application.  His argument that he was not aggrieved by it was misconceived and no other explanation for the delay has been provided.

The merits of the application for review

  1. [153]
    The applicant relies on the merits of his claim in his application for an extension of time.  The principles relevant to this aspect of his application include the following from the decision of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Wu’), at pages 291 – 292 (footnotes omitted).  His Honour said (my emphasis) –

What are the principles which should guide the judge conducting that review and appellate courts supervising such a decision?

  1. The reasons under challenge must be read as a whole.  They must be considered fairly.  It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.
  1. This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others.  This is not to condone double standards between the reasons and decisions of legally qualified persons and others.  It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow.  It must be taken to have been contemplated by the lawmaker.
  1. Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law.
  1. Nevertheless, the reasons of a decision-maker will usually provide the only insight into the considerations which were, or were not, taken into account in reaching the decision which is impugned.  It is therefore legitimate for the person affected, who challenges those reasons, to analyse both their language and structure to derive from them the suggestion that a legally erroneous approach has been adopted or erroneous considerations taken into account or a conclusion reached which is wholly unreasonable in the requisite sense.
  1. The weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review …
  1. [154]
    The applicant asserts that the MAT made numerous errors in its assessment of the applicant’s DPI for the first injury.  His grounds (as per the application) are a little difficult to follow.  Further and better particulars have been provided.
  2. [155]
    In support of his grounds, the applicant relies upon various paragraphs or sections of the Guidelines for the Evaluation of Permanent Impairment, second edition (Queensland Guide).
  3. [156]
    It is worth setting out the relevant provisions of the Queensland Guide now, to give context to the applicant’s arguments, with emphasis on aspects relied upon by the applicant or which I consider important.

The Queensland Guide

  1. [157]
    Paragraph 1.5 of the Queensland Guide explains that it is designed to assist a suitably qualified and experienced medical practitioner or assessor to assess a claimant’s degree of permanent impairment. 
  2. [158]
    Paragraph 1.6 states –

1.6 The following is a basic summary of some key principles of permanent impairment assessments:

 (a) Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account of the claimant’s relevant medical history and all available relevant medical information in order to determine:

  • Whether the condition is stable and stationary;
  • Whether the claimant’s compensable injury/condition has resulted in an impairment;
  • Whether the resultant impairment is permanent;
  • The degree of permanent impairment that results from the injury; and
  • The proportion of permanent impairment due to a previous impairment, if any, in accordance with diagnostic and other objective criteria as outlined in this Guide.
  1. (b)
    Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and when making deductions for pre-existing impairments.

(c) …

(d) …

  1. [159]
    Paragraph 1.15 states (although this appears above, I have repeated it for convenience) –

Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and is stable and stationary.  This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.

  1. [160]
    Paragraph 1.46 states –

A report of the evaluation of permanent impairment should be accurate, comprehensive and fair.  It should clearly address the question/s being asked of the assessor.  In general, the assessor will be requested to address issues of:

  • current clinical status, including the basis for determining whether the injury is stable and stationary;
  • the degree of permanent impairment that results from the injury/condition; and
  • the proportion of permanent impairment due to any previous impairment, if applicable.
  1. [161]
    Chapter 11 of the Queensland Guide deals with psychiatric and psychological disorders.  It “lays out” the method for assessing psychiatric impairment.  By 11.4, the impairment rating must be based on a psychiatric diagnosis.  By 11.6, it is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric systems.  The section continues –

The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used.  Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, from family members and others who may have knowledge of the person.  Medical reports, feedback from treating professionals, results of standardised tests … and work evaluations may provide useful information to assist with the assessment.  Evaluation of impairment will need to take into account variations in the level of functioning over time.  Percentage impairment refers to ‘whole person impairment’.

  1. [162]
    Paragraph 11.10 deals with pre-existing impairment, and states – 

To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition.  Pre-existing impairment is calculated using the same method for calculating current impairment levelThe assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function.  The percentage impairment is calculated using the aggregate score and median class score using the conversion table below [that is, PIRS].  The injured worker’s current level of impairment is then assessed, and the pre-existing impairment level (%) is then subtracted from their current level to obtain the percentage of permanent impairment directly attributable to the work-related injury.  If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.

  1. [163]
    The Queensland Guide goes on to explain the psychiatric impairment rating scale (that is, PIRS), the way in which it is to be applied, and the way in which psychiatric percentage impairment is calculated.

First ground

Applicant’s submissions

  1. [164]
    The first of the applicant’s grounds is that the making of the decision was an improper exercise of power by reason of its failure to take “relevant considerations” into account.
  2. [165]
    The applicant argued that the MAT failed to take into account that he was “already suffering substantially as a consequence of the injuries suffered due to the events of claim number [#043] and so much so that the applicant had ceased work and been hospitalised for his injuries at the Princess Alexandra Hospital Mental Health Unit”. 
  3. [166]
    The applicant also argued that the matters taken into account in the PIRS assessment undertaken for the decision on claim #627 should have been taken into account in the PIRS assessment of the applicant for claim #043. 
  4. [167]
    The first of those complaints amounts to an argument on the merits. 
  5. [168]
    As I understand the applicant’s second complaint, it is that the MAT ought not to have assessed the applicant’s DPI for the first injury because at the time he left work, his injury was not stable and stationary.  The applicant referred to paragraph 1.15 of the Queensland Guide and submitted that an assessment of his impairment as at the time he stopped work was not "appropriate”. 
  6. [169]
    He submitted, in effect, that the MAT erred in questioning him about his condition as of July 2014 because his condition was not then stable or stationary.  He submitted, “Facts about Mr Allwood’s mental state before the period of injury came to a close, or when his injury was not stable or stationary, cannot rightly form the basis of the permanent impairment assessment”.
  7. [170]
    The argument seemed to be that the Queensland Guide required the PIRS assessment to be completed on the basis of the applicant’s state when he presented to the MAT: thus it was impermissible for the MAT to attempt a PIRS assessment of the applicant for an earlier point in time.[47] 
  8. [171]
    Counsel for the applicant said –[48]

… my point …is that the Tribunal must, if there is a pre-existing condition, an earlier injury at work or some other pre-existing condition, they must make clear if they consider that the earlier condition continues to cause a permanent impairment and if they do consider it to cause a permanent impairment, then they must explain that and identify it in the table …”

… it was not… the job of the Tribunal to determine what the impairment was at an earlier time, because that isn’t how the Guidelines are set up.  So the cause of the impairment is a retrospective activity but the impairment itself is not. 

  1. [172]
    I note that counsel made no submissions about paragraph 11.10 of the Queensland Guide which, at least on its face, appears to suggest that the MAT was indeed required to conduct a PIRS assessment for the earlier injury.
  2. [173]
    She submitted that the MAT ought to have completed the PIRS assessment for the first injury on the basis of the same evidence used in its PIRS assessment for the second (and, as I understand the argument, arrived at the same DPI). 
  3. [174]
    As to how the MAT was to reach its conclusion about the effect of the impairment caused by the first injury in arriving at its conclusion (of 20 percent DPI) for the second, she said it should not have used a PIRS assessment to do so.[49]  She submitted that it was unnecessary for the MAT to have calculated the contribution of the first injury to the DPI as at December 2018 in that way – although she seemed to be suggesting that the MAT was entitled to reach an assessment of 4 percent DPI for the first injury – just not via the PIRS process.[50]
  4. [175]
    Also, counsel submitted that the MAT would have been in error if it “meant” its decisions to be read together, because each decision had to stand on its own.[51]
  5. [176]
    She submitted that to determine the DPI for the first injury and its contribution to the applicant’s DPI in December 2018, the MAT ought to have “look[ed] back in time at the records that were given to [it]… to identify what symptoms Mr Allwood was experiencing”.  She argued that the MAT had misdirected itself to perform a PIRS retrospectively, instead of on the day Mr Allwood appeared before it.[52]

Second respondent’s submissions

  1. [177]
    The second respondent submitted that the applicant’s first ground was without substance and was contrary to the MAT’s reasons.  The MAT found that the applicant’s condition was stable and stationary (as at December 2018). 
  2. [178]
    Paragraph 1.6 of the Queensland Guide required the MAT to assess the complainant on the day he appeared at the MAT.  The MAT was entitled to rely upon what the applicant said to it that day about how he was functioning years beforehand.  The purpose of paragraph 1.6 was to ensure that the MAT also acquired “evidence” from the claimant in the course of its assessment of DPI.[53] 
  3. [179]
    Queen’s Counsel did not refer to paragraph 11.10 of the Queensland Guide.

Conclusion: first ground

  1. [180]
    An evaluation of the “appropriateness” of the MAT’s approach to the matters referred to it must be a reasonable one which takes into account the MAT’s expertise.
  2. [181]
    The MAT had two related claims referred to it – the claim concerning the first injury and the claim concerning the aggravation of a pre-existing condition (including an eating disorder, which I note was not expressed as an injury in claim #043).
  3. [182]
    It was required to apply the Queensland Guide to determine inter alia in the case of the first injury – the degree of permanent impairment which resulted from it; and in the case of the second injury – the degree of permanent impairment which resulted from it and the proportion of that permanent impairment which was due to any previous impairment.
  4. [183]
    In assessing permanent impairment, the MAT was required, by 1.6 of the Queensland Guide, to conduct a clinical assessment of the claimant as they presented on the date of the assessment in order to determine inter alia, whether the relevant condition was stable and stationary and the degree of permanent impairment (if any) which resulted from the relevant injury. 
  5. [184]
    Reading that requirement reasonably with 1.15 – the MAT was required to conduct a clinical assessment of the applicant and if, upon that clinical assessment (taking account of the other matters referred to in 1.6), the MAT considered that the applicant’s condition (injury) was stable and stationary, then the MAT was permitted to go on to assess the degree of permanent impairment.
  6. [185]
    On the basis of the applicant’s presentation on the day of the assessment (as per 1,6), the MAT concluded that his condition/injury was stable and stationary as at December 2018.  It went on, as permitted, to assess the DPI of each injury. 
  7. [186]
    It seems to me that, in accordance with 11.10, the assessment had to be conducted in accordance with PIRS for each claim considered individually and for the purposes of claim #627.  But in the absence of reference to this paragraph by either counsel I will not treat that section as determinative of this complaint.
  8. [187]
    Even apart from paragraph 11.10, in my view, a reasonable reading of the Queensland Guide does not suggest that, in this case, the MAT was not permitted to make an assessment of pre-existing impairment on the basis of a PIRS assessment because the pre-existing impairment was not stable and stationary in July 2014. 
  9. [188]
    Reading and applying the Queensland Guide reasonably, the MAT was required to assess the DPI for the first injury in the way in which it did so – namely, by applying PIRS, based on the applicant’s self-report as per 11.6.
  10. [189]
    If claim #043 had been referred to the MAT soon after July 2014 – when the applicant’s injury was not yet stable and stationary, then the MAT would not have been permitted to assess its DPI.  But there was no such referral.  And events had well moved on, and the injury was stable and stationary, by the time of the MAT’s assessment in December 2018. 
  11. [190]
    Obviously – if the applicant’s injury was not stable and stationary in December 2018, an assessment of DPI and the proportionate contributions of each injury to it would simply not have been possible.  But the MAT was satisfied that the applicant’s condition was stable and stationary, and, as I have said, in my view, conducted its assessments of DPI for each injury in accordance with the Queensland Guide, read and applied reasonably in the circumstances.
  12. [191]
    There is no substance in the applicant’s first ground.

Second ground

  1. [192]
    The applicant’s second ground was that the MAT’s decision involved an error of law “in incorrectly applying the PIRS criteria in assessing the degree of permanent impairment sustained from the assessed psychiatric diagnosis”.
  2. [193]
    In its further and better particulars, the applicant explained, in effect, that this ground repeated the complaints made in relation to the first ground – that is, that the MAT failed to take into account that the applicant was suffering substantially from the first injury and that it was the applicant’s responses to the PIRS “areas” (for example, self-care and personal hygiene; concentration, persistence and pace) as at December 2018 which should have appeared in the PIRS rating form (which formed the basis of the assessment of DPI).[54]

Conclusion: second ground

  1. [194]
    As before, the first complaint under this ground invites a merits review.  And I have dealt with the second complaint above.  In my view, it was appropriate to apply the PIRS to the first injury.  And it was appropriate to do so on the basis of the applicant’s self-report about relevant matters as at July 2014, in the context of the other material before the MAT (as per 1.6) 
  2. [195]
    There is no substance in this ground.

Third and fourth grounds

Applicant’s submissions

  1. [196]
    The applicant’s third ground was that the MAT had erred in law because its decision failed to provide “adequate reasoning for the conclusions reached” in assessing the applicant’s impairment under “the relevant PIRS categories”.  His fourth ground was that there was no evidence or material to justify the making of the assessments made under the PIRS criteria and such assessments were contrary to the MAT’s own findings in the body of its decision.
  2. [197]
    In his further and better particulars, the applicant elaborated on this ground as follows –

The first respondent failed to provide adequate reasoning for its conclusions, in that the first respondent:

  1. (a)
    Concluded that there was not Mental State Examination pertaining to this Claim [#043] as it is a historical claim but provided no explanation as to how it came [to] this conclusion.
  1. (b)
    Concluded that the applicant was working full-time, although experiencing emotional difficulties and failed to explain this conclusion in the context that he had in fact ceased working and had been admitted to hospital prior to the events of claim number [#627] occurring.
  1. (c)
    Accepted that as of mid-to-late July 2014, the applicant had developed a range of psychiatric conditions which included Post-Traumatic Stress Disorder, Major Depressive Disorder, and Panic Disorder with Agoraphobia and Generalised Anxiety Disorder but failed to provide any reasoning supporting how these serious and substantial psychiatric disorders rendered a 4% PIRS.
  1. (d)
    Determined that the substantial and debilitating conditions that the applicant suffers from are ongoing as a consequence of the events of claim number [#627] and not claim number [#043] but failed to provide any or any adequate reasoning as to why that is the case.
  1. [198]
    The applicant submitted that there was no evidence to justify the conclusions in (a) to (d) above and that those conclusions were contrary to the evidence contained in the referral.
  2. [199]
    Also, the applicant stated in his further and better particulars in relation to the fourth ground –

In coming to the conclusions described above there was no evidence or other matters to justify the conclusions and is contrary to the evidence as described in paragraph 1(a) herein [that is, “the fact that prior to the events occurring the subject of claim [#627] the applicant was already suffering substantially as a consequence of the injuries suffered due to the events of claim [#043] and so much so that the applicant had ceased work and been hospitalised for his injuries at the Princess Alexandra Hospital Mental Health Unit].

  1. [200]
    The applicant’s written submissions elaborated on (a).  He submitted that the MAT’s “conclusion” that there was no Mental State Examination pertaining to the first injury because it was a historical claim” was “confusing”.  He submitted if the conditions were ongoing – they were not “historical”.  Also – the events the subject of a claim necessarily occur in the past and all are “historical”.  He went on to say –

… the only way that this statement can be explained is that it was impossible for the Tribunal to undertake a mental state examination in relation the first injury because, at the time of the examination in December 2018 the Applicant had already sustained an aggravation of his injury (the second injury).  It stands to reason therefore that it would have been impossible to undertake a mental state examination of the Applicant in respect of the first injury alone without a consideration of the impacts of the second injury.

  1. [201]
    As to (b), the applicant submitted that the MAT’s conclusion was factually incorrect. 
  2. [202]
    The applicant did not further elaborate on (c). 
  3. [203]
    The applicant added, with respect to (d) that the MAT’s finding was inconsistent with its finding that the conditions which were the result of the first injury were ongoing at the time of the assessment. 

The second respondent’s submissions

  1. [204]
    The second respondent submitted that the MAT’s statement about not undertaking a Mental State Examination in relation to claim #043 was “an obvious one” which was “plainly correct”.  Also, it was not the MAT”s function to determine the nature of the applicant’s first injury (and to conduct a mental state examination for that purpose).  The nature of the injury had already been determined by WorkCover. 
  2. [205]
    As to (b) – the second respondent submitted that the reasons for decision of the MAT were to be read as a whole and fairly – relying on Minister for Immigration and Ethnic Affairs v Wu – including Kirby J’s statements set out above.  The statement about the applicant’s working had to be read in context –

It is referring to the fact that the applicant was working full-time and experiencing difficulties prior to ceasing work on 18 July 2014.  So much is evident from the history provided to the Tribunal by the applicant and is consistent with the reasons that the Tribunal was aware when the applicant ceased employment.  No error has been demonstrated. 

  1. [206]
    As to (c), the second respondent submitted that the MAT’s reasoning was adequately set out in its decision. 
  2. [207]
    With respect to (d), the second respondent observed that the applicant relied on section 20(2)(h) of the JRA.  To establish this ground of review, section 24 of the JRA applied – but it was not apparent from the applicant’s submissions which subsection of section 24 the applicant wished to invoke. 
  3. [208]
    Further the assessment of the evidence and the weight to give it were matters for the MAT: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363. 
  4. [209]
    Generally, the second respondent submitted that the MAT’s decision was “not in any way contrary to the evidence that was before it”.

Conclusion: third and fourth grounds

  1. [210]
    In Wu, the High Court considered the proper role of a reviewing court in this context.  At page 272, Brennan CJ, Toohey, McHugh and Gummow JJ  referred to the following well settled propositions –
  • A court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker; and
  • The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
  1. [211]
    Their Honours continued (footnotes omitted, my emphasis) –

[These propositions] recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.  This has been made clear many times in this Court.  For example, it was said by Brennan J in Attorney-General (NSW) v Quin:

‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it: but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’

  1. [212]
    Bearing in mind my role, I have reached the following conclusions.
  2. [213]
    There is nothing confusing about the MAT’s statement that “there was no Mental State Examination pertaining to” claim #043 because it was an “historical claim”. 
  3. [214]
    A mental state examination is an examination which follows a prescribed structure and leads to a description of a person’s current state of mind or psychological functioning.  The structure requires the assessor to consider a patient’s appearance, mood, affect, speech et cetera. 
  4. [215]
    Reading and applying the Queensland Guide reasonably in this case did not require the MAT to conduct a mental state examination for claim #043.
  5. [216]
    A mental state examination was an appropriate part of the clinical assessment required by paragraph 1.6 of the Queensland Guide.
  6. [217]
    A mental state examination may, or may not, of itself, inform the MAT’s decision on DPI.  To take a hypothetical example: A person’s thought disorder or paranoid thinking might be apparent to the MAT upon a mental state examination conducted on the date of the assessment.  But, if the injury referred to the MAT for assessment did not include symptoms of thought disorder or paranoid thinking, the mental state examination would not assist the MAT in its task, but it might cause the MAT to be cautious about the person’s self-report. 
  7. [218]
    In the present case, it seems that the mental state examination did inform the MAT’s decision about claim #627.  At worst, the MAT’s statement, that there was no mental state examination for claim #043 because it was historical, was a superfluous or unnecessary statement.  There is nothing in this argument.
  8. [219]
    As to (b), reading the reasons as a whole and fairly, it is plain that the MAT understood that Mr Allwood stopped working in July 2014 – and that, until that point, although he had been working full time, he had been experiencing emotional difficulties.  Making allowances for what might be thought to have been an “unhappy” lack of chronology, in my view, the MAT appreciated that Mr Allwood had been suicidal and had been hospitalised.  And the MAT was aware that he was totally incapacitated for work in July 2014. 
  9. [220]
    I acknowledge that on one view, the PIRS rating for the applicant’s employability ought to have been higher than class 1 because by after 18 July 2014, it seems that the applicant was totally incapacitated for work (which would warrant a class 5 score). 
  10. [221]
    However, the Queensland Guide expressly states in paragraph 11.6 that the evaluation of impairment will need to take into account variations in the level of functioning over time.  Also, as Kirby J said, one of the reasons why the weight to be given to material before the decision-maker (here, the fact of hospitalisation) is reserved to the decision-maker is because the decision-maker has more experience in the consistent application of relevant administrative rules.
  11. [222]
    Nevertheless I acknowledge that it is arguable that the MAT has not adequately explained its reasons for assigning class 1 to the applicant’s employability for the purposes of its decision.  And I acknowledge that this is a factor which favours the grant of an extension of time.
  12. [223]
    Subject to my comments about the assignment of class 1 to employability, I consider that the MAT’s reasons for its 4 percent DPI assessment are adequately explained.  To a large degree they are based on the applicant’s self-report.  The weight to give the applicant’s self-report of his psychological functioning was a matter for the MAT.
  13. [224]
    Similarly, with respect to complaint (d), I consider that it is only fair to read the MAT’s reasons for both its decisions together.  When that is done, its reasons for determining that the second injury contributed more greatly to the applicant’s substantial and debilitating impairment are sufficiently exposed.  For example, as I have noted, the applicant’s self-report of his functioning was much bleaker with respect to claim #627 than with respect to claim #043. 
  14. [225]
    In reaching these conclusions, I have taken into account section 24 of the JRA.  That section states –
  1.  The ground mentioned in sections 20(2)(h) and 21(2)(h) is not to be taken to be made out –

 (a) unless –

  (i) the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established;

  (ii) there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or

 (b) unless –

  (i) the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and

  (ii) the fact did not or does not exist.

  1. [226]
    Section 20(2) of the JRA limits the grounds upon which an application may be brought.  The ground in section 20(2)(h) is “that there was no evidence or other material to justify the making of the decision”.
  2. [227]
    Notwithstanding the second respondent’s valid complaints about the applicant’s failure to expressly identify the limb of section 24 upon which he relied, I am prepared to conclude that the applicant may have a valid argument about the absence of justification for its assigning class 1 to the applicant’s employability for the purpose of the PIRS assessment in claim #043.

Fifth ground

Applicant’s submissions

  1. [228]
    The applicant submitted that the decision was “inconsistent with the decision [of] the First Respondent dated 7 December 2018 for referral number 59659”.
  2. [229]
    In his Further and Better Particulars, the applicant explained that “[t]he inconsistency … relates to the matters described above and the facts that support that this is a reviewable error include those referred to in paragraph 1(a) herein”. 
  3. [230]
    As I understand the applicant’s arguments, this ground was intended to argue something similar to that argued in ground four – that the decision was inconsistent with evidence of the applicant’s state as at 7 December 2018. 
  4. [231]
    My conclusions as to the third and fourth grounds apply to the fifth ground.  I note that the second respondent made no separate response to this ground either.

Sixth ground

Applicant’s submissions

  1. [232]
    The applicant submitted that there was a breach of natural justice in relation to the making of the decision.
  2. [233]
    In his Further and Better Particulars, the applicant submitted that there was a breach of natural justice in that the MAT –
  • failed to ask the applicant questions which would have allowed it to “properly assess which category of PIRS the applicant should be in”, and
  • failed to ask the applicant questions which would have allowed it to “properly assess whether the ongoing impairment related to” claim #043 or claim #627.
  1. [234]
    In his written submissions, the applicant said –

There was a breach of natural justice in relation to the making of the Decision in that the Tribunal failed to ask Mr Allwood about his mental state after work on 18 July 2014 and following.  Given that the Tribunal found that his injuries from the first application for Workers’ Compensation were continuing at the time he was examined by them, the Tribunal ought to have questioned Mr Allwood about their ongoing symptoms and their cause.

Second respondent’s submissions

  1. [235]
    The second respondent submitted that this ground must fail because it did not proceed on a fair reading of the MAT’s decision.  On a fair reading of the decision, the MAT obtained information from the applicant which was relevant to the PIRS categories.  The history contained in the material before the MAT and the applicant’s self-report enabled the MAT to reach the conclusions it did in relation to the PIRS’s categories.  Also, the Tribunal noted Dr Dwyer’s opinion that by November 2015, the applicant had some capacity for work and had resumed some activity, namely taking his dogs to the dog park 

Conclusion: sixth ground

  1. [236]
    There is no evidence from the applicant himself about the questions he was asked or not asked by the MAT.  However, it is plain from the MAT’s reasons that it did question Mr Allwood about his ongoing symptoms.  I doubt that he would have been in a position to answer its questions about the cause of his symptoms – that was not a matter for him.  But it is clear from the MAT’s reasons that Mr Allwood was questioned by it about his symptoms after 18 July 2014.  For example, the MAT said – [55]

His condition, at the time that he stopped work was not stable and stationary.  He continued to report a range of symptoms over the next four years.  He was continuing psychological and psychiatric treatment from that date forward.  The history of his symptomatology from that time was consistent with the bulk of reports from independent treating psychiatrists and his psychologist.

  1. [237]
    As I understand the MAT’s reasons, the contrast between the history and the reports was intended as a contrast between that which the applicant told it at the hearing (including, I presume, in response to its questions) and the written material. 
  2. [238]
    The evidence presented in this matter does not support the sixth ground.

Other matters relied upon by the applicant

  1. [239]
    The applicant submitted that there would be no prejudice to the second respondent if the extension of time was granted.  He submitted that it was in the public interest that the MAT undertake its referrals in accordance with the Queensland Guide.  He submitted that every worker in Queensland had a right to be treated fairly and “the same as every other worker”.[56]  He also submitted, in effect, that not to extend time would lead to injustice in his case because he was a man with a significant psychiatric impairment.  The power to extend time existed so as to prevent injustice.  Counsel referred to Workers’ Compensation Regulator v Pryszlak [2018] QCA 157.

The second respondent’s response to those other matters

  1. [240]
    The second respondent submitted that the public interest was not served by this court’s granting an extension of time.  Years might pass between a decision of the MAT and an applicant’s receipt of an expert’s opinion contrary to it.  It could not be in the public interest to permit a challenge to the MAT’s decision after a long period of time on the basis that it was only upon receipt of the contrary opinion that the applicant became aggrieved.  He submitted that granting an extension of time in the present case would defeat the statutory limitation period.[57]
  2. [241]
    More generally, the second respondent submitted that the complaints made about the decision were expressing nothing more than dissatisfaction with the MAT’s decision. 

The application is refused

  1. [242]
    Drawing on the principles espoused in the authorities, I recognise that delay is not a reason in itself for refusing an application for an extension of time within which to bring an application for a statutory order of review of an administrative decision (Kim Hyun Tai v Bolkus).  Indeed even an unexplained, or unsatisfactorily explained delay is not per se a reason for refusing an extension of time within which to bring an application.  But I am struck by the absence of any reasonable explanation for the delay in this case and it is a persuasive factor against granting an extension (Hoffman v The Queensland Local Government Superannuation Board; Kuku Djungan Aboriginal Corporation v Christensen).
  2. [243]
    The argument that the applicant was not aggrieved by the decision was misconceived. 
  3. [244]
    The applicant’s lawyers were not required to wait passively until WorkCover produced a report for the purposes of the second injury common law claim before considering the applicant’s position in the light of the MAT’s decision.  To suggest that relevant evidence (which revealed the effect of the MAT’s decision on the applicant’s position in the common law claim) was not available until the receipt of Dr Chalk’s report is not correct.  There was nothing stopping the applicant’s lawyers from interrogating the MAT’s decision with Dr Dwyer within time – or at the very least raising it with him (within time).
  4. [245]
    With one exception, none of the substantive grounds are arguable.  The exception is the submission that the MAT erred in its assessment of the applicant’s employability as class 1.  Bearing in mind the statements of Kirby J in Wu, I must not overlook the MAT’s experience in these matters.  And I must be careful not to fall into a merits review.  Nevertheless, I will treat this aspect of the substantive argument as a matter in favour of the granting of an extension. 
  5. [246]
    I have considered the risk of injustice to the applicant were I not to grant the extension.  However I find that risk difficult to assess on the basis of the brief submissions made to me about it in this complex case. 
  6. [247]
    I have further taken into account that the second respondent does not assert that prejudice would flow to it from my granting the extension of time.  However, the mere absence of prejudice is not enough to justify the grant of an extension (see Westwood citing Hunter Valley Developments).
  7. [248]
    I consider the public interest in this case to fall in favour of not encouraging delay in responding to administrative decisions by allowing those acting for an applicant to be passive in response to a decision which plainly has an adverse effect upon an applicant.  To grant an extension of time in the present case would be to work around the statutory time limit when there has been no reasonable explanation for the failure to comply with the time limit. 

Orders

  1. [249]
    Taking into account all relevant considerations as above, I decline to extend time in the present case and the application is dismissed.
  2. [250]
    It seems to me that costs ought to follow the event.  Unless the parties wish me to consider submissions to the contrary, the applicant is to pay the second respondent’s costs of the application on the standard basis.

Other matters

  1. [251]
    Queen’s Counsel for the second respondent initially had objections to the affidavit of the applicant’s solicitor (Mr Gibson) – court document 7.  He argued that any reference to the MAT’s decision about the second injury (which was an exhibit to Mr Gibson’s affidavit) was irrelevant.[58]  Later, he seemed to retreat from that position – but he did not explicitly withdraw his objection. 
  2. [252]
    If it were necessary for me to rule upon it, I would rule (consistently with my approach) that the MAT’s decision in relation to the applicant’s second injury was relevant and admissible in the applicant’s application.
  3. [253]
    Also, I am compelled to observe that the material (1400-odd pages) exhibited to the affidavit filed in support of this application was difficult to navigate.  It was without a helpful index, not in chronological order, disorganised and repetitive.  A more thoughtful collection and presentation of the material would have better assisted the court.  In case this matter goes elsewhere, I direct that the index of material prepared by my associate be placed on the file.

Footnotes

[1]  Court document 7, page 68.

[2] See court document 8, page 504, letter from Dr Dwyer to Shine Lawyers, “As per your request of 23 November 2015, I am providing the following psychiatric opinion in relation to Mr Allwood’s claim for damages following a series of distressing incidents that occurred at his place of work between 2008 and 2015” (my emphasis). 

[3]  The limiting effect of the WCR Amendment Act upon those entitled to seek damages for an injury sustained by a worker was alleviated by the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015, which received assent on 24 September 2015.  The section amending section 237(1) was taken to have commenced on 31 January 2015.

[4]  By consent, on 28 October 2019, Crow J’s orders included an order that the first respondent abide the order of the Court on this present application, save as to costs.

[5]  Court document 7, page 1.

[6] See court document 7, page 66.

[7]  Court document 7, page 35.

[8]  Court document 7, page 68 states the date upon which the List of Stressors was sent to WorkCover.  The list itself is at court document 7, pages 41 – 50. .

[9]  Court document 7, pages 57, 58 and 59.

[10]  Court document 7, page 62.

[11]  Court document 7, pages 60 – 61.

[12]  Court document 7, page 62.

[13]  Court document 7, page 133.

[14]  Court document 8, page 450.

[15]  Court document 8, page 459.

[16] See court document 7, page 83.

[17]  Court document 8, pages 504 – 524.  The report was requested on 23 November 2015 and provided to Shine Lawyers on 24 November 2015.

[18]  Court document 7, page 86 and court document 8, page 468. 

[19]  Court document 7, page 171.

[20]  Court document 7, page 171.

[21]  Court document 7, page 172.

[22]  Court document 7, page 173.

[23]  Court document 8, pages 463 – 465.

[24]  Court document 8, pages 466 – 477.

[25]  Court document 7, page 105.

[26]  Court document 12, pages 1396 – 1408.  I note the errors on page 4 (court document 12, page 1393) of the decision and page 7 (court document 12, page 1396) of the decision concerning claim #043.  Mr Allwood did not stop work on 18 January 2014 (he stopped on 18 July 2014).  The date of his injury was not “over a period of time from 2008 to 18 July 2017” (the relevant period ended in July 2014).  The applicant made nothing of these errors.

[27]  Court document 12, page 1394.

[28]  Court document 12, page 1395.

[29]  Court document 12, page 1398.

[30]  Court document 12, page 1402.

[31]  Court document 12, page 1402.

[32]  Court document 12, page 1404.

[33]  Court document 12, page 1404.

[34]  Court document 12, page 1408.

[35]  Court document 12, page 1409.

[36]  Court document 12, pages 1420 – 1421.

[37]  Court document 12, pages 1422 – 1423.

[38]  Court document 12, page 1424.

[39]  Court document 12, page 1433.

[40]  T3/28 – 35.

[41]  T6/38 – 41.

[42]  T13/6 – 7. 

[43]  T3/18-21.

[44]  T7/10 – 26.

[45]  T44/36 – 40.

[46]  T10/20 – 45.

[47]  T29. 

[48]  T30 - 31.

[49]  T36/1 – 6.

[50]  T37.

[51]  T41.

[52]  T42.

[53]  T53 – 55.

[54] See the forms encompassed in the decisions at court document 12, pages 1396 and 1405.

[55]  Court document 12, page 1395.

[56]  T43.

[57]  T46 – 47.

[58]  T19 – 21.

Close

Editorial Notes

  • Published Case Name:

    Allwood v Sundin, Chung, Greaves & Anor

  • Shortened Case Name:

    Allwood v Sundin, Chung, Greaves

  • MNC:

    [2020] QSC 188

  • Court:

    QSC

  • Judge(s):

    Ryan J

  • Date:

    23 Jun 2020

Litigation History

No Litigation History

Appeal Status

No Status