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The University of Queensland v Workers' Compensation Regulator[2022] ICQ 18

The University of Queensland v Workers' Compensation Regulator[2022] ICQ 18

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

The University of Queensland v Workers’ Compensation Regulator [2022] ICQ 018

PARTIES:

THE UNIVERSITY OF QUEENSLAND

(appellant)

v

WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

C/2022/9

PROCEEDING:

Appeal

DELIVERED ON:

17 June 2022

HEARING DATE:

9 June 2022

MEMBER:

Davis J, President

ORDER/S:

  1. Appeal dismissed.
  2. Any written submissions on costs by the respondent to be filed and served by 24 June 2022.
  3. Any written submissions on costs by the appellant to be filed and served by 1 July 2022.
  4. Any written reply on costs by the respondent to be filed and served by 8 July 2022.
  5. Both parties have liberty to apply by application filed on or before 22 July 2022 for leave to make oral submissions on costs.
  6. In the absence of any application for leave being filed by 22 July 2022, the question of costs will be decided on the written submissions without oral hearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the employer under the Workers’ Compensation and Rehabilitation Act 2003 (Workers’ Compensation Act) appealed a decision by the Queensland Industrial Relations Commission (QIRC) – where the QIRC upheld the decision of the Regulator – where the Regulator had allowed a claim out of time by the employee – whether the QIRC had applied the right test

WORKERS’ COMPENSATION – MISCELLANEOUS MATTERS – where the QIRC had dismissed an appeal from the decision of the Regulator to allow the employee workers’ compensation – where the application had been made out of time – where time began to run once a doctor had “assessed” the worker’s injury – where the injury was assessed – where the worker did not make application for compensation – where a specific injury was later diagnosed – where the worker then applied for workers’ compensation – whether the later diagnosis was relevant to “reasonable cause” for not applying for compensation within time – whether the QIRC applied the wrong test

Industrial Relations Act 2016, s 557, s 565, s 567

Workers’ Compensation and Rehabilitation Act 2003, s 5, s 36A, s 131, s 141, s 549, s 561

CASES:

Armstrong v Local Government Workcare [2014] ICQ 7, cited

Blackwood v Toward (2015) 248 IR 53, followed

Church v Blackwood (Workers’ Compensation Regulator) (2015) 252 IR 461, followed

DL v The Queen (2018) 266 CLR 1, followed

Green v Workers’ Compensation Regulator [2019] ICQ 3, followed

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed

The University of Queensland v Workers’ Compensation Regulator [2022] QIRC 131, related

APPEARANCES:

SA McLeod QC for the appellant instructed by HWL Ebsworth Lawyers

SP Sapsford for the respondent instructed directly by the Regulator

  1. [1]
    The appellant, The University of Queensland (the University), was the employer of a worker, Chantal Nicholson, who applied for workers’ compensation pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (the Workers’ Compensation Act).
  2. [2]
    Ms Nicholson’s application was rejected by the University but allowed by the Workers’ Compensation Regulator (the Regulator) who is the present respondent.  The University appealed that decision to the Queensland Industrial Relations Commission (QIRC).  Vice President O'Connor, sitting in the QIRC, dismissed the appeal.[1]
  3. [3]
    From the Vice President’s decision, the University appeals to this Court.[2]

Statutory scheme

  1. [4]
    The object of the Workers’ Compensation Act is to establish a workers’ compensation scheme to provide benefits to workers who are injured in their employment.[3]  This is achieved through a claim system overseen by the Regulator[4] whose decisions are subject to appeal to the QIRC.[5]  The QIRC’s decisions are then subject to appeal to this Court.[6]
  2. [5]
    Chapter 3 of the Workers’ Compensation Act concerns compensation.  Part 5 of Chapter 3 regulates applications for compensation.
  3. [6]
    Section 131 regulates the time for making an application for compensation.  That section is critical here.  It provides:

“131 Time for applying

  1. (1)
    An application for compensation for an injury is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation for the injury arises.
  1. (2)
    If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer’s liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.
  1. (3)
    Subsection (2) does not apply if death is, or results from, the injury.
  1. (4)
    An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist.
  1. (5)
    Also, an insurer may waive subsection (1) for a particular application if—
  1. (a)
    it is satisfied that a doctor, nurse practitioner or dentist has assessed the injury as resulting in total or partial incapacity for work; and
  1. (b)
    the claimant lodged the application within 20 business days after the first assessment under paragraph (a).
  1. (6)
    An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant’s failure to lodge the application was due to—
  1. (a)
    mistake; or
  1. (b)
    the claimant’s absence from the State; or
  1. (c)
    a reasonable cause.” (emphasis added)
  1. [7]
    Section 132 concerns the formal contents of an application for compensation.
  2. [8]
    Section 131 contains the term “entitlement to compensation” and the notion of that entitlement arising.  Section 141 concerns that concept.  It provides, relevantly:

“141 Time from which compensation payable

  1. (1)
    The entitlement to compensation for an injury arises on the day the worker’s injury is assessed by—
  1. (a)
    a doctor; or …”
  1. [9]
    Section 36A, which concerns latent onset injuries, has no relevance to Ms Nicholson’s claim but it arose in argument.  It provides, relevantly:

“36A Date of injury

  1. (1)
    This section applies if a person—
  1. (a)
    is diagnosed by a doctor after the commencement of this section as having a latent onset injury; and
  1. (b)
    applies for compensation for the latent onset injury. …
  1. (3)
    Section 131 applies to the application for compensation as if the entitlement to compensation arose on the day of the doctor’s diagnosis.
  1. (4)
    Subject to subsections (2) and (3), this Act applies in relation to the person’s claim as if the date on which the injury was sustained is the date of the doctor’s diagnosis. …”
  1. [10]
    The appeal from the decision of the Regulator to the QIRC is by way of rehearing de novo.[7]  The appeal from the QIRC to this Court is made pursuant to s 561 of the Workers’ Compensation Act.  It provides:

“561 Appeal to industrial court

  1. (1)
    A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.
  1. (2)
    The Industrial Relations Act 2016 applies to the appeal.
  1. (3)
    The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
  1. (4)
    The court’s decision is final.”
  1. [11]
    Section 561(2) applies the Industrial Relations Act 2016 (the IR Act) to the appeal.  Section 557 of the IR Act provides:

“557 Appeal from commission

  1. (1)
    The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (2)
    Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction. …”
  1. [12]
    It is common ground that s 561 of the Workers’ Compensation Act picks up s 557(1) of the IR Act so that the University’s appeal is limited to grounds alleging error of law or excess or want of jurisdiction.  Leave is not sought by the University to argue other grounds.[8]

Background facts

  1. [13]
    Ms Nicholson was employed by the University as an Anatomy Mortuary Technician. 
  2. [14]
    On 14 March 2019, Ms Nicholson attended upon her general practitioner, Dr Oo, at the Oxley Family Medical Centre.  Dr Oo’s clinical notes on that consultation are:

“Surgery consultation

Recorded by: Dr San San Oo Visit date: 14/03/2019

Recorded on: 14/03/2019

work stress

angry , crying , not sleeping

will talk to HR

for mc

Reason for visit:

Anxiety

Actions:

Medical Certificate given from 14/03/2019 until 15/03/2019.” (underlining added)

  1. [15]
    It is common ground that Dr Oo “assessed” Ms Nicholson’s injury on 14 March 2019 as that concept appears in s 141 of the Workers’ Compensation Act.[9]  Therefore, by force of s 131, time for making an application began to run against Ms Nicholson as and from that day.
  2. [16]
    On 9 March 2020, about a year later, Ms Nicholson attended upon Dr Oo again.  The clinical notes of that consultation are as follows:

“Surgery consultation

Recorded by: Dr San San Oo Visit date: 09/03/2020

Recorded on: 09/03/2020

work related issues

saw work safety officer

who told her to come here

raised issues 3-4 times in the last 2 years

attended EAP in person

now in a stage that does not want to go to work

angry, headache at work

sated that has issues with co-worker who doesn't do the job

no h/o mental health issues in the past

will see EAP at work due to free services

meanwhile needs stress leave

Reason for visit:

Anxiety/Depression

Actions:

Letter printed.

K10 Assessment: Score 44.

Medical Certificate given from 09/03/2020 until 13/03/2020.”[10] (underlining added)

  1. [17]
    Ms Nicholson consulted Dr Peter Lin, another doctor practising at the Oxley Family Medical Centre, on each of 15, 18 and 22 March 2020.  These consultations were, one way or another, related to Ms Nicholson’s work stress.
  2. [18]
    An application for workers’ compensation was made on 11 August 2020.
  3. [19]
    On 6 October 2020, Ms Nicholson consulted a psychiatrist, Dr Jatheesh Valappil.  He diagnosed her with “adjustment disorder with mixed anxiety and depressed mood”.  He found that Ms Nicholson’s employment was a significant contributing factor to the cause of her psychiatric injury.  He opined that the injury manifested into its fully developed state in November/December 2019.
  4. [20]
    Ms Nicholson gave evidence in the QIRC about the circumstances which led her to consult Dr Oo and she also gave evidence about the consultation and certain other things.
  5. [21]
    Ms Nicholson’s evidence was, relevantly:

“All right. Do you remember consulting your general practitioner in March of 2019?---Yes.

And why did you consult your general practitioner on that day?---I had taken a couple of days off work and that was my third day off and I went to - just in case I needed a medical certificate but I didn’t end up needing it.

Why do you say you didn’t end up needing it?---I just used my rec leave.

And why - why did you take the time off work?---On the 12th of March while at work I had an incident with - something happened at work. So another staff member came and approached me and said that she was coming in to the mortuary with me to learn how to embalm and I just told her I didn’t know anything about that and she did … my manager had given her permission to come in with me so I told her could she just email them and copy me into it just to make sure - - -

MR GRAY: Your Honour, I just rise to firstly object. This evidence hasn’t been outlined in the respondent’s outline of evidence. Ms Nicholson also seems to be giving evidence - hearsay evidence about what might have been said to a co-worker. So I object to that evidence on the basis that we haven’t been notified and there is hearsay evidence.

HIS HONOUR: Perhaps I can address it this way. Ms Nicholson, without going into any great detail, had you had an incident at work?---Yes.

How were you feeling?---Pissed off.

MR SAPSFORD: When you consulted with Dr Oo on 14 March 2019, were you prescribed any medication?---No.

And did Dr Oo inform you at any stage you had suffered an injury of a psychiatric nature?---No.

Did you discuss with Dr Oo the possibility of making a claim for workers’ compensation?---No.

Well, after 14 March 2019, what happened after that? Did you return to work?---I went back to work the next day.

I see. And did you continue working and, if so, for how long? Specifically, Ms Nicholson, it would be good if you’d address how long you continued working prior to any further medical visits you may have made?---Till the next year when I went to the doctor in March the following year.

Did you also go to Dr Oo in March of the following year?---Yes.

In the interim, how were you coping at work?---Okay.

What was the situation? Why did you go to Dr Oo in March of 2020?---I started to get - I started to get frustrated with my - I started to realise I wasn’t - something wasn’t right because I started to get frustrated with my daughter which isn’t normal.

Yes. Was there anything else?---Yeah. I was - things were happening to me like I was getting tight jaw, I was starting to not want to go to work, getting really short and impatient at home. Yeah.

Well, when you consulted Dr Oo, did he perform any tests?---In 2020 in March?

Yes, in March of 2020?---Just the questionnaire.

You remember filling out a questionnaire, do you?---Not - not specifically, like not the detail.

Right. And after the questionnaire and the consultation with Dr Oo, did he tel1 you anything or prescribe any medication? What occurred?---She - she told me to, you know, have a rest. She was - told me to speak to either the union or my employer. Just general - yeah.

In relation to what?---To what was happening in the workplace.

I see. Were you informed as to whether you had sustained an injury?---In 2020?

Yes. In March 2020?---Not that -  not an injury, just that I had anxiety.

Okay. Did you in the interim period between the first examination and the second examination - between the 2019 and the March 2020, did you realise anything about your commitment to work in or about the new year?---Yeah. I was starting to not enjoy it any more. I was finding going there and the anticipation of Monday coming was getting more of a worry.”[11] (emphasis added)

  1. [22]
    In cross-examination, Ms Nicholson gave this evidence:

“MR GRAY: Now, Ms Nicholson, with respect to the attendance you had with Dr Oo on the 14th of March 2019, when you saw Dr Oo, you told her that you were suffering from work stress?---I told her I was - had work issues going on at work.

Well, you told her that you were angry?---Yes.

Told her you were crying?---I was crying at the time of the incident, yes.

You told her that you were not sleeping?---Yes.

So you told her that you described anxiety because of your workplace?---I had anxiety because of a situation that happened at work.

Yes. Because of what was occurring at work?---The one situation that happened at work, yes.

Well, Dr Oo told you that you had anxiety related to your workplace?---Yep.

And Dr Oo gave you a medical certificate for two days off work?---For the one day, for the 14th.”[12]

  1. [23]
    After being asked about Dr Oo’s suggestion in 2019 that she take some time off from work because of the symptoms, Ms Nicholson said this:

“Yes. You took the day off?---Yes.

And you took the day off because - you needed that time off because of the impact that your work was having on you?---I had already taken two days off prior, so yep.”[13]

  1. [24]
    She was then asked about her work after her initial consultation with Dr Oo.  She said this:

“Then you continued working and then you noticed throughout 2019 that you continued to be adversely affected by things that were happening in the workplace?---No.

You- remember when you saw Dr Valappil, psychiatrist?---In 2020.

Yes?---Yes.

And you remember telling Dr Valappil that in 2019 you started to feel physically run down?---Around - yeah, around Christmas.

Yes. You were becoming frustrated?---Yes.

You started feeling wound up?---Yes.

You started to ruinate about work?---Around the new year.

Towards the end of 2019?---Around the new year.

Yes. And this was because of what was happening at work?---Yes.

And you remember telling the doctor that you started to become irritable and you’d become angry easily?

HIS HONOUR: You need to answer - - -?---Yes. Sorry.

- - - just for the record, Ms - - -?---Yes.

MR GRAY: Yes. And you were also continuing to have sleep disturbance?---Yes.

Now - and these symptoms continued to affect you up until you saw Dr Oo. You returned to see Dr Oo on the 9th of March 2020?---Yes.

And, again, at that attendance you told her that you were still having work-related issues?---Yes.

You told her that you had attended EAP in person, that’s the employee assistance?---It was actually the health and safety worker - officer.

Right. You told Dr Oo that you were angry?---Fourteenth of March - sorry, 2020 March?

Ninth of March 2020, yes?---Yes.

And that - so you were describing similar symptoms to what you’d told Dr Oo about at the attendance on the 12th of March 2019?---No.

Well, they were the fact that you were angry, so that was the same between when you saw Dr Oo on the 12th of- sorry, on the 14th of March 2019?---Considerably more, yep.

But you were still angry; that’s correct?---Yes.

You were crying?---Yes.

You were not sleeping?---Yes.

And that - so these were the same symptoms you had described to Dr Oo back on the attendance on the 14th of March 2019?---No.

Now, at this attendance, Dr Oo gave you the same advice that you had anxiety from your work?---She didn’t tell me that, no.

Well, she told you that you - you certainly understood you were seeing the doctor because you had symptoms that you were suffering from that were being caused by your workplace?---That I didn’t know were anxiety.”[14] (emphasis added)

  1. [25]
    The cross-examiner returned to the topic of the 2019 consultation with Dr Oo and this exchange occurred:

“MR GRAY: Yes. You needed time away from work because of the symptoms that you were suffering from?---I - well - yeah. Well, I was angry so I just thought, ‘I’m taking the day off. I’m taking time off’. I wasn’t sick.

Well, it was affecting your health because you couldn’t sleep?---I guess that it - well, I was sleeping but just, you know, stirring in - it wasn’t sleepless nights, so - - -

Well, the symptoms were affecting your health enough that you had to go and see your GP?---I went to see her in case I needed a medical certificate, yes.

Well, you described to her the symptoms that you were suffering from?---Yes.

And you also told her that they were related to what was happening in your workplace?---I told her that it was related to an incident that happened on the 12th of March.

You told her that you had work stress?---I told her that I had work issues.”[15] (emphasis added)

  1. [26]
    Ms Nicholson was asked in cross-examination about her consultations with Dr Lin:

“And on this occasion, on the 15th of March 2020, you saw Dr Peter Lin?---On this occasion - - -

No, sorry. On the second occasion in 2020 - - -?---Yes.

- - - that you returned was the 15th of March 2020?---Yes.

Forget about that certificate. And you saw Dr Peter Lin?---Yes.

And you told Dr Lin that you were not eating?---Yes.

That you were having symptoms caused by your workplace?---Yes.

That you couldn’t wind down till 2 am so you were still having problems with sleeping?---Yes.

You were frustrated. Now, you also, at that occasion, discussed with Dr Lin workers’ compensation?---Yes.

And Dr Lin prescribed you some medication?---Yes.

Now, even though you’ve discussed with Dr Lin workers’ compensation you didn’t decide you were going to make an application at that stage?---No.

You did, however, return to see Dr Lin on the 18th of March 2020, so three days later?---Yes.

And on that occasion you told Dr Lin that you wanted to go ahead with you workers’ compensation claim?---Yes.

That you told him that you hadn’t discussed it with your union yet?---Yes.

Told him that you were still angry?---Yes.

And Dr Lin gave you a workers’ compensation medical certificate?---Yes.”[16]

  1. [27]
    In re-examination, Ms Nicholson said:

“MR SAPSFORD: All right. Now, in relation to your certifications and the examinations by Dr Oo for the two specific events of 9 March - 14 March 2019 and 9 March 2020, you’ve been referred to certification which is similar in content apart from the dates?---Yes.

And you’ve been asked about the symptoms you were experiencing. Were they the same on both occasions?---Of 2019 and 2020?

2020?---No.

What was the difference?---2020 - 2019 was nowhere the same as 2020.”[17] (emphasis added)

  1. [28]
    Dr Oo also gave evidence before the QIRC.  In evidence-in-chief, she said this initially about the consultation in 2019:

“Well, by reason of your recollection and by reference to the clinical notes, can you speak about the presentation of Ms Nicholson on that date?---According to the notes, Ms Nicholson came in for ‑ requesting for the medical certificate because she’s under work stress, that she’s still angry, crying and not sleeping.

I see. And, Doctor, did you in the course of that consultation diagnose Ms Nicholson with a psychiatric injury?---No.

Did you tell Ms Nicholson that you had diagnosed her with a psychiatric injury?---No.

Did you discuss with Ms Nicholson any prospect of workers’ compensation?---No.”[18] (emphasis added)

And then later:

“All right. Now, the consultation on 9 March 2020, did you undertake certain testing on that date?---I did test for the K10 assessment.

Now, what’s that? What’s a K10 assessment Dr Oo?---A K10 assessment is a - is an assessment - assessment for the psychological distress.

Do you have that in front of you, that assessment?---I’m going to look for it now. Just one second, please. Yes. I have it.

And what does it reveal?---There are about 10 questionnaires and then the score was about 44 out of 50. Fifty is the maximum score.

And what does 44 out of 50 indicate to you, Doctor?---Forty-four out of fifty indicates that she has got the psychological distress in a severe degree.

And were you able then to make a diagnosis as to whether Ms Nicholson had sustained a psychiatric injury?---Well, I made - I made that as she has got anxiety, depression at that stage.”[19]

  1. [29]
    In cross-examination:

“Thank you, Doctor. Now, just with that final report that you were asked about, the letter you wrote on the 15th of July 2021, that was in response to a request you had received to clarify the diagnosis you made at the attendance on the 14th of March 2019, wasn’t it? Doctor, did you hear the question?---Yeah. I thought you were - are you waiting for me? Well, it was the - I must - I must go and get the - the - the letter from them saying that - actually, I’ve got that letter written by me on the 15th of July 2021 there. So I confirm that she - Mrs - Chantal Nicholson consulted me for anxiety affecting her sleep and angry and crying.

Yes. Because you were asked to identify the reasons or the contributing factors to Ms Nicholson’s anxiety, do you remember that request?---Yes. I do. It is - I also mention in the last paragraph of the - the - the - the - the letter written by me, I say that it contributed by work stress.

Yes. So what you had certified in that letter was that looking back at your consultation with Ms Nicholson on the 14th of March 2019 she was exhibiting symptoms of - she was angry, that’s correct?---The -the angry and crying and the - and the sleep - affecting sleep, these are the history taking, history. History from the patient.

Yes. And so she tells you that what’s occurring in the workplace is having an adverse effect on her mental health and wellbeing because it’s causing her - - -?---The - yeah. The history said the work stress and affecting her sleep and angry and crying.

Yes. And so you’ve described the reason for visit and anxiety and you said before that that’s not a diagnosis but it is still an indication that Ms Nicholson is suffering from a work-related injury that is causing her to suffer symptoms, though, isn’t it?---At that stage, there is that was the first episode that she came in to see me for that and then I - I said about anxiety. Anxiety’s a symptom at that stage.

Yes?---So I could not say that - I could not diagnose that it is, you know, a work-related psychological injury at the time.

Well, Doctor, what you did obtain from Ms Nicholson was a description of that were caused by her workplace so there’s a connection between the symptoms that are being exhibited and her workplace as she describes to you, isn’t there?---Sorry, I cannot answer that question. It is beyond my scope of expertise.

Well, Doctor, your - a patient comes to you and says that I - as you’ve recorded, she tells you she has work stress, correct?---Yes.

And she says that she’s angry, she’s crying, she’s not sleeping. Now, these are all symptoms of a psychiatric or psychological type nature, aren’t they, because that’s what typically what happens with a psychiatric or psychological injury?---Well, it is a - it is a - the mental stress symptom.

Yes?---It is a reaction - a reaction to the stress.

Yes. And - - -?---So it is - yeah.

Well, it’s a circular thing, isn’t it? Someone has symptoms and they’re being caused by things that are operating in the workplace because that’s what Ms Nicholson had described to you. That’s correct, isn’t it? Because you’ve written there ‘work stress’?---Yeah. That’s a history from Chantal Nicholson.

Yes. So Ms Nicholson describes these symptoms to you and you record those, that’s correct?---Yes.

And the symptoms that she’s describing are the type of symptoms that you normally see from someone who is suffering from a psychiatric or psychological-type condition. That’s correct, isn’t it?‑‑‑It’s correct in the way that it is a psychological distress, yes.

Well, you then issue a work- a medical certificate in which you certify that Ms Nicholson has a medical condition. So certifying a medical condition is the same sort of thing as certifying that there’s an injury that is affecting Ms Nicholson’s ability to work, would you agree with that?---Yes. I do.

And you issued the certificate because you thought that Ms Nicholson should have time away from work. That’s correct, isn’t it?---Yes.

And then when you attended - when Ms Nicholson returned to attend upon you on the 9th of March 2020, she again describes similar type symptoms of being angry. That’s correct?---Yes.

And she again told you that she was suffering - she needed stress leave because of work - her work-related issues?---Yes.

So again there’s a connection between what Ms Nicholson is describing to you as occurring in her workplace and the medical condition that you have diagnosed. That’s correct, isn’t it?---Yes.

And it’s that medical condition again that you diagnose, this time with the benefit of that K10 assessment that’s still described as a medical condition in the certificate that you issue on the 9th of March 2020. Do you have that in front of you? You might have to go and see your records. It’s an exhibit 4 before his Honour. It’s similarly worded to the one that you issued in 2019 certifying a medical condition and unfitness for work?---Yeah.

So this is the same diagnosis you’re making about a medical condition. That’s correct, isn’t it?---Yes.”[20] (emphasis added)

  1. [30]
    After referring to the relevant passages of the Workers’ Compensation Act, the Vice President recorded some uncontentious facts and the submissions of the parties and then defined the issue as:
  1. “[38]
    The question for determination is whether the application for worker’s compensation was lodged outside of the six-month time limit; and, if so, whether the Commission can be satisfied that that was because of a mistake or a reasonable cause.
  1. [39]
    The Regulator has conceded that Ms Nicholson did not make her application for workers’ compensation within six months of her entitlement to compensation arising.
  1. [40]
    In light of the concession, let me turn to addressing the question whether the failure to lodge the workers’ compensation application within the statutory time limit was caused by mistake or a reasonable cause.”
  1. [31]
    The Vice President identified the correct issue.
  2. [32]
    The Vice President analysed various authorities before concluding that the assessment of “reasonable cause” involved a consideration of all the circumstances of the case, including the knowledge of the complainant.[21]  For that proposition, the Vice President cited Green v Workers’ Compensation Regulator.[22]  That principle is non-contentious.
  3. [33]
    Importantly, the Vice President made a number of factual findings.
  4. [34]
    Firstly:
  1. “[50]
    The clinical notes of Dr Oo of 14 March 2019 record that Ms Nicholson presented with symptoms of anxiety and insomnia noting ‘work stress angry, crying, not sleeping’ with the reason for the visit being anxiety.
  1. [51]
    The consultation on 14 March 2019 was said to be brief, it is apparent from the clinical records that no diagnosis was given. The reason for the visit was recorded as ‘anxiety’. A generic medical certificate was issued for 14 March to 15 March 2019. However, Ms Nicholson elected to take recreational leave in lieu of relying on the medical certificate.”
  1. [35]
    Then the Vice President cited with apparent acceptance Ms Nicholson’s evidence about her consultations with Dr Oo in March 2019 and March 2020, which evidence is part of the evidence set out at paragraph [21] of these reasons.[23]
  2. [36]
    The Vice President then accepted:
  1. that between 14 March 2019 and 9 March 2020, Ms Nicholson worked without significant interruption;[24]
  2. Ms Nicholson continued her employment until she “felt something wasn’t right” and she then sought further medical help;[25]
  3. that it was after Dr Oo did the K10 test on 9 March 2020 that “Ms Nicholson became aware that she had suffered from a diagnosable psychiatric condition”;[26]
  4. the opinion of Dr Valappil that the injury had “manifested itself in its fully formed state in November-December 2019.”[27]
  1. [37]
    At paragraph [61] of the judgment, the Vice President referred with apparent approval to the evidence of Dr Oo that appears as part of that set out in paragraph [29] of these reasons.  In that passage, Dr Oo explained that she did not diagnose any work-related psychological injury in 2019.
  2. [38]
    The contentious paragraphs of the Vice President’s judgment are the last seven.  They are:
  1. “[62]
    No diagnosis was made on 14 March 2019. Whilst some symptomology was identified, namely, anxiety no specific diagnosis of a work-related injury was made or communicated. That is the uncontradicted evidence of both Dr Oo and Ms Nicholson.
  1. [63]
    I remain unconvinced that it has been demonstrated that a conclusion or opinion that Ms Nicholson has suffered an injury within the meaning of the WCR Act was either formed or communicated to her on 14 March 2019.
  1. [64]
    In Armstrong v Local Government Workcare,[28] Martin J addressed the meaning to be given to the word ‘diagnosed’ in s 36A(1)(a) of the Act. His Honour wrote:
  1. [26]
    The intent of s 36A is to set up a mechanism whereby someone with an insidious disease can seek compensation if other prerequisites are met. It is inconsistent with the premise of s 36A, namely, that a person is diagnosed with a latent onset injury and then applies for compensation, that the diagnosis is not conveyed to the person. It is not consistent with s 36A that the diagnosis should remain a secret from the patient. ‘Diagnosis’ has been described as a mere act of cerebration by a doctor – the formation of an opinion and nothing more. But, in circumstances where it is characterised as the trigger for the entitlement to compensation, it would be inconsistent with the intent of this archetypal piece of remedial legislation for ‘diagnosis’ to be construed in a way that would allow an uncommunicated opinion to lie quietly, ticking away, as the time limit for making an application ran out.
  1. [27]
    For a ‘diagnosis’ of a latent onset injury to activate a time period in a statute which has, as one of its objects, the establishment of a scheme to provide ‘benefits for workers who sustain injury in their employment’ it must be a diagnosis which is given to the prospective applicant.
  1. [65]
    It was submitted by the Regulator that Ms Nicholson lodged her application as soon as she became aware, she was suffering from a diagnosable psychiatric and or psychological injury. Whilst that submission is rejected by the Appellant, I accept that Ms Nicholson took reasonable steps to lodge her claim within the six months. Unremarkably she sought advice from her Union before making her application for compensation on 11 August 2020.
  1. [66]
    As was observed in Van Dongen, each case must be assessed upon its own facts and circumstances. The particular circumstances of the case as they impact upon the reasonableness or otherwise of the conduct of the worker must be considered in order to determine whether reasonable cause is established.
  1. [67]
    Applying that test as expressed in Quinlivan, it is clear on the findings made that the only reason for the failure to give the notice and to make a claim for workers’ compensation was that she was unaware from her initial consultation with Dr Oo in March 2019 that she had sustained a psychiatric or psychological injury. Nothing has been raised by the Appellant to displace that conclusion.
  1. [68]
    Ms Nicholson’s belief was reasonable having regard to the lack of communication from Dr Oo; the fact that she was not prescribed any medication; and that she continued to perform her work duties without any incapacity. In the circumstances, I am of the view that a reasonable cause has been established. The matters identified are, in my view, the kind of matters which might be expected to delay the giving of notice by a reasonable person and therefore establish that Ms Nicholson had reasonable cause not to lodge her application for workers’ compensation within the legislative timeframe. I am satisfied that there was a proper basis to waive the time limit as provided for in s 131(1) of the Act.”

The appeal

  1. [39]
    The grounds of appeal in the application to appeal are:

“1.  The Queensland Industrial Relations Commission (constituted by O'Connor VP) erred in holding that Nicholson had reasonable cause not to lodge her application for workers’ compensation within the legislative timeframe provided for under the WCR Act.

2.  In reaching the finding, referred to in ground 1 above, O'Connor VP further erred in holding that there was a proper basis to waive the time limit as provided for in s. 131(1) of the WCR Act.

3.  Further, in reaching the findings, referred to in grounds 1 and 2 above, O'Connor VP erred in not holding that:

(a)  Nicholson’s application for workers’ compensation was required to be lodged within six months following the entitlement to compensation for which the injury arose, namely 14 March 2019: s. 141(1) of the WCR Act; and

(b)  the error in ground 3(a) above, resulted in O'Connor VP to further err by failing to have regard to the totality of the evidence relevant to determining whether Nicholson had reasonable cause not to lodge her application for workers’ compensation within the six month time period under s. 131(1) of the WCR Act.”

  1. [40]
    These grounds are not potentially illuminating.  However, the submissions made by Mr McLeod QC for the University are.
  2. [41]
    Mr McLeod submitted that the Vice President has confused the notion of the injury being “assessed” with the notion of the injury being “diagnosed”.  The notion of an injury being “assessed” is explained in Toward as:

“In order for a doctor to ‘assess’ an injury as an ‘injury’ within the meaning of the Act there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment. …”[29]

  1. [42]
    The notion of an injury being “diagnosed” must be considered when s 36A(1)(a) of the Workers’ Compensation Act is in play.  The Vice President has concentrated on the wrong issue, Mr McLeod says, namely whether and when there has been a diagnosis with time then running from that point.  Mr McLeod submitted that this inquiry deflected attention from the proper assessment of the evidence which he submits shows that Ms Nicholson knew, in March 2019, that she had suffered an injury by that point, and it was therefore not reasonable for her to wait over a year before making a claim. 
  2. [43]
    President Kirby (as his Honour then was) was in dissent in the result when sitting in the New South Wales Court of Appeal in Soulemezis v Dudley (Holdings) Pty Ltd.[30]  However, in a passage cited with approval by the High Court in DL v The Queen,[31] his Honour said:

“This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed fact questions and to list the findings on the principal contested issues.”[32]

  1. [44]
    Paragraphs [63], [64] and [65] of the Vice President’s judgment are not without difficulty. The finding in paragraph [63] that “a conclusion or opinion that Ms Nicholson has suffered an injury … was [neither] formed or communicated to her on 14 March 2019”[33] is difficult to accept literally.  The formation of an opinion that the injury has been suffered is synonymous with the concept of the injury being assessed.[34]  As already observed, it is common ground that the injury was “assessed” by Dr Oo in March 2019 and time began to run against Ms Nicholson.
  2. [45]
    Paragraph [64] refers to Armstrong v Local Government Workcare[35] which concerns the term, “diagnosis”.  Consideration of that case is unnecessary in the context of the present one. 
  3. [46]
    Mr McLeod relies upon the statement in paragraph [65] where the Vice President states that once Ms Nicholson received the diagnosis,[36] “Ms Nicholson took reasonable steps to lodge her claim within the six months”.  Of course, no six-month period began to run upon receipt of the diagnosis.  The six months period had long expired; it had started to run on 14 March 2019. 
  4. [47]
    However, the reasons must be read as a whole and read consistently with the principles in Soulemezis and DL. 
  5. [48]
    The Vice President correctly recorded that the injury had been assessed on 14 March 2019 and that the time had begun to run against Ms Nicholson.[37]  The Vice President correctly identified the real issue which was whether an extension should be given because a mistake or reasonable cause had been shown.[38]
  6. [49]
    The Vice President correctly held that Ms Nicholson’s knowledge of her injury was relevant to an assessment of “reasonable cause” in not lodging the claim within time.  That led to a consideration of the information which had been given to Ms Nicholson by her doctors.[39]  This is the significance of the Vice President’s observations that the consultation on 19 March 2019 was brief and “no diagnosis was given”,[40] that is, Ms Nicholson was not told what the injury was or how severe it was.
  7. [50]
    The finding at paragraph [55] that on 9 March 2020, “Ms Nicholson became aware that she had suffered from a diagnosable psychiatric condition” was the culmination of the Vice President’s inquiry into a relevant consideration, namely the knowledge of Ms Nicholson about the condition.  That revelation did not recommence the running of time under s 131, but it was relevant to whether reasonable cause was shown.
  8. [51]
    Against those findings, the Vice President then wrote the more contentious final paragraphs of the judgment.[41]  The Vice President has held that, now armed with the knowledge of her condition, Ms Nicholson took reasonable steps to lodge the claim.[42]  It is her later realisation of her condition which established “reasonable cause”.[43]  Once the reasons are properly understood, the reference to “the six months” in paragraph [65] also becomes clear.  While there was no new six-month period which commenced upon diagnosis, it could hardly be said that Ms Nicholson acted reasonably if she delayed beyond the statutory period of six months once she learnt of her condition.
  9. [52]
    Once properly understood, the reasons of the Vice President demonstrate a conventional approach.  He appreciated that the injury had been assessed for the purposes of ss 131 and 141 of the Workers’ Compensation Act by Dr Oo on 14 March 2019.  He appreciated that the claim eventually lodged was out of time unless reasonable cause could be shown enabling the Regulator to then waive the time limit.  Relevant to that consideration of “reasonable cause” was the knowledge which Ms Nicholson had and the steps she took once she had obtained knowledge of her condition.  After careful analysis, the Vice President found that Ms Nicholson did not understand her condition until it was diagnosed in March 2020.  The Vice President then found that from that point, Ms Nicholson acted reasonably in lodging her claim and, consequently, reasonable cause was established.
  10. [53]
    This is not an appeal grounded in any alleged factual error. However, the Vice President’s findings as to Ms Nicholson’s knowledge as to her condition are well-founded in her evidence and that of Dr Oo which I have earlier set out.
  11. [54]
    No error of law has been established and the appeal must be dismissed.

Costs and final orders

  1. [55]
    The parties indicated approval to costs being determined on written submissions and it is therefore appropriate to make directions for that to be achieved.
  2. [56]
    The orders are:
  1. Appeal dismissed.
  2. Any written submissions on costs by the respondent to be filed and served by 24 June 2022.
  3. Any written submissions on costs by the appellant to be filed and served by 1 July 2022.
  4. Any written reply on costs by the respondent to be filed and served by 8 July 2022.
  5. Both parties have liberty to apply by application filed on or before 22 July 2022 for leave to make oral submissions on costs.
  6. In the absence of any application for leave being filed by 22 July 2022, the question of costs will be decided on the written submissions without oral hearing.

Footnotes

[1] The University of Queensland v Workers’ Compensation Regulator [2022] QIRC 131.

[2] Workers’ Compensation and Rehabilitation Act 2003, s 561 and Industrial Relations Act 2016, s 557.

[3] Workers’ Compensation and Rehabilitation Act 2003, s 5.

[4]  Chapter 7.

[5] Workers’ Compensation and Rehabilitation Act 2003, s 549.

[6] Workers’ Compensation and Rehabilitation Act 2003, s 561, Industrial Relations Act 2016, ss 557, 567.

[7] Church v Blackwood (Workers’ Compensation Regulator) (2015) 252 IR 461 at [27].

[8] Industrial Relations Act 2016, s 557(2) and 565.

[9] Blackwood v Toward (2015) 248 IR 53.

[10]  Obvious typographical errors in the original have been corrected.

[11]  T 1-8–1-10.

[12]  T 1-11–1-12.

[13]  T 1-12.

[14]  T 1-13–1-14.

[15]  T 1-15.

[16]  T 1-16–1-17.

[17]  T 1-19.

[18]  T 1-21.

[19]  T 1-23–1-24.

[20]  T 1-25–1-26.

[21]  At [48].

[22]  [2019] ICQ 3.

[23] The University of Queensland v Workers’ Compensation Regulator [2022] QIRC 131 at [52].

[24]  At [53].

[25]  At [54].

[26]  At [55].

[27]  At [58].

[28]  [2014] ICQ 7 (citations omitted).

[29] Blackwood v Toward (2015) 248 IR 53 at [44].

[30]  (1987) 10 NSWLR 247.

[31]  (2018) 266 CLR 1 at [33].

[32]  At 259.

[33]  Emphasis added.

[34] Workers’ Compensation and Rehabilitation Act 2003, ss 131 and 141.

[35]  [2014] ICQ 7.

[36]  Therefore, 2020.

[37]  Paragraphs [39] and [40].

[38]  Paragraphs [23] and [38].

[39]  Paragraphs [42], [48], [49], [51] and [52].

[40]  Paragraph [51].

[41]  Paragraphs [62]-[68].

[42]  Paragraph [65].

[43]  Paragraph [68].

Close

Editorial Notes

  • Published Case Name:

    The University of Queensland v Workers' Compensation Regulator

  • Shortened Case Name:

    The University of Queensland v Workers' Compensation Regulator

  • MNC:

    [2022] ICQ 18

  • Court:

    ICQ

  • Judge(s):

    Davis J, President

  • Date:

    17 Jun 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Armstrong v Local Government Workcare [2014] ICQ 7
3 citations
Jump To
Cite 1 - [2014] ICQ 7
Cite 2 - [2014] ICQ 7
Cite 3 - [2014] ICQ 7
Blackwood v Toward (2015) 248 IR 53
3 citations
Jump To
Cite 1 - (2015) 248 IR 53
Cite 2 - (2015) 248 IR 53
Cite 3 - (2015) 248 IR 53
Church v Simon Blackwood (Workers' Compensation Regulator) (2015) 252 IR 461
2 citations
Jump To
Cite 1 - (2015) 252 IR 461
Cite 2 - (2015) 252 IR 461
DL v R (2018) 266 CLR 1
2 citations
Jump To
Cite 1 - (2018) 266 CLR 1
Cite 2 - (2018) 266 CLR 1
Green v Workers' Compensation Regulator [2019] ICQ 3
2 citations
Jump To
Cite 1 - [2019] ICQ 3
Cite 2 - [2019] ICQ 3
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
3 citations
Jump To
Cite 1 - (1987) 10 NSWLR 247
Cite 2 - (1987) 10 NSWLR 247
Cite 3 - (1987) 10 NSWLR 247
The University of Queensland v Workers' Compensation Regulator [2022] QIRC 131
7 citations
Jump To
Cite 1 - [2022] QIRC 131
Cite 2 - [2022] QIRC 131
Cite 3 - [2022] QIRC 131
Cite 4 - [2022] QIRC 131
Cite 5 - [2022] QIRC 131
Cite 6 - [2022] QIRC 131
Cite 7 - [2022] QIRC 131

Cases Citing

Case NameFull CitationFrequency
The University of Queensland v Workers' Compensation Regulator (No 2) [2022] ICQ 273 citations
1

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