Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2015
  4. DeAlwis v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 158

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

DeAlwis v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 158

DeAlwis v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 158

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

DeAlwis v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 158

PARTIES: 

DeAlwis, Duwadisawage Sricassimal

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2014/345

PROCEEDING:

Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)

DELIVERED ON:

26 August 2015

HEARING DATES:

1 and 2 June 2015

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Thompson

ORDERS:

  1. Application for compensation not valid or enforceable.
  2. Appellant to pay the Regulator's costs incidental to and associated with the hearing of the jurisdictional matter.

CATCHWORDS:

WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Validity and enforceability of the application for compensation in accordance with s 131 of the Act - Time for applying - Standard of proof - Witness evidence - Application for compensation not valid or enforceable - Appellant to pay the Regulator's costs incidental to and associated with the hearing of the jurisdictional matter.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 131, s 141, s 550

Simon Blackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 8

Groos v WorkCover Queensland (2000) 165 QGIG 106

Melbourne and Metropolitan Tramways Board v Witton (1963) VR 417

APPEARANCES:

Mr D. DeAlwis, Appellant.

Mr P. Major, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.

Decision

  1. [1]
    On 30 April 2015 Duwadisawage Sricassimal (Siri) DeAlwis (DeAlwis) lodged a Notice of Appeal with the Industrial Registrar pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) released on 27 October 2014. 
  1. [2]
    The decision of the Regulator confirmed the decision of WorkCover Queensland (WorkCover) to reject an application by DeAlwis for compensation in accordance with s 32 of the Act.
  1. [3]
    The Regulator raised a preliminary issue of whether the claim for compensation lodged by DeAlwis had been lodged within the allowed time and therefore valid and enforceable.
  1. [4]
    The purpose of this hearing was to make a determination in respect of the preliminary point.

Appellant

  1. [5]
    On 10 March 2015 DeAlwis filed with the Industrial Registrar a Statement of Stressors [Exhibit 2] listing stressors said to be causative of his psychiatric/psychological injury.  The list identified that in the period from December 2008 until January 2009 the action of management had the effect of "punishing me [DeAlwis] for my criticism finally abandoned the system after five years as explained at item 15 below".  The list identified other management actions that were alleged to be unreasonable as occurring in:
  • February 2009;
  • September 2009;
  • September 2010;
  • 3 November 2011;
  • 8 December 2008 to 20 September 2009/13;
  • 17 February 2012;
  • 2010 to 2013;
  • 15 March 2013;
  • 2013;
  • 21 September 2013 to 19 February 2014;
  • 20 February 2014;
  • 20 March 2014; and
  • 20 April 2014.
  1. [6]
    A workers' compensation medical certificate was tendered in proceedings [Exhibit 1] having been issued by Dr Craig Morris on 16 April 2014 which stated the following:
  • "Worker's stated date of injury:  16 April 2009; and
  • Worker's stated cause of injury:  States that management had taken away high end work and in place replaced this with work that is below his grade.  He feels that some has a basis of race.  He feels that performance checks have been targeted at him unfairly.  They have most recently threatened to remove his flexi leave without good reason."
  1. [7]
    The application for compensation was lodged on 17 April 2014.
  1. [8]
    The Appellant called the following witnesses:
  • DeAlwis; and
  • Dr Rodney Morris.

DeAlwis

  1. [9]
    DeAlwis is currently unemployed after his services were discontinued on medical grounds relating to this issue.  The present injury was said to have occurred on 20 February 2014 at a meeting with a Mr Ballard whilst he was employed with the Department of Housing and Public Works.  The meeting had lasted about one hour during which he had been "crying and shouting and doing various things".  DeAlwis sought medical treatment from Dr Craig Morris on 27 February 2014 but remained at work despite being diagnosed as "seriously ill".  He had received counselling through an Employment Assistance Program (EAP) prior to the attendance with the doctor on 27 February 2014.  He had also been prescribed medication for depression.  There were further meetings involving DeAlwis with regards to his Achievement and Development Plan (ADP) some months later where he again broke down but could not recall if he went back to his doctor at that time.
  1. [10]
    DeAlwis attended a medical appointment with Dr Rodney Morris on 18 March 2013 where he was diagnosed with stress for domestic reasons not relevant to the current claim.  On 16 April 2014 Dr Craig Morris identified (in DeAlwis' medical records) him as suffering anxiety and depression and issued a workers' compensation medical certificate with a claim being made for workers' compensation the following day over the phone.
  1. [11]
    DeAlwis had previous issues with his employer including an event on 20 September 2013 where he was becoming "a bit frustrated working in the public service" but Dr Craig Morris had "never assessed me as being, you know, good for workers' compensation".  Previously Dr Craig Morris had specifically told him:

"…you won't have a case in Workers' Compensation.  Even - even after the 20th incident he still said it's very difficult, Siri, because there's a clause called reasonable management action.  And he had recorded elsewhere in - in - on my previous meetings he can't see any unreasonable management action.  So he never assessed me as eligible for compensation."  [Transcript p. 1-20].

  1. [12]
    DeAlwis did believe there was a connection between issues in 2010 and the event of 27 February 2014 and his psychiatric/psychological condition prior was not based on work issues but were "actually a domestic issue".  What happened on 20 February 2014 was "very different" in relation to his condition.
  1. [13]
    Under cross-examination DeAlwis confirmed he had:
  • commenced employment with the Department of Housing and Public Works in 2008;
  • lodged a workers' compensation medical certificate on 16 April 2014; and
  • made an application for workers' compensation on 17 April 2014. [Transcript p. 1-21].
  1. [14]
    DeAlwis confirmed at the consultation with Dr Craig Morris on 16 April 2014 he had "maybe" told the doctor that his stressors has been going on for five years [Transcript p. 1-23].  DeAlwis was questioned regarding his Statement of Stressors and conceded all the stressors contained within that document were work-related stressors but his real injury only took place after he was being insulted [Transcript p. 1-25].  All the stressors contributed to his psychiatric/psychological injury [Transcript p. 1-26].  DeAlwis' further evidence was to confirm the 13 stressors contained in his Statement of Stressors contributed to his psychiatric/psychological injury [Transcript p. 1-32].
  1. [15]
    DeAlwis confirmed his WorkCover claim for psychological and psychiatric injury identified the date of injury as "16/04/2014 - but the cause for it has been going on for five years".  DeAlwis confirmed also that in the WorkCover claim form with regards to treatment details he stated he first sought treatment on "16/04/2014 though there had been previous consultations" [Transcript p. 1-33].
  1. [16]
    DeAlwis confirmed his first consultation was 28 January 2010 [Transcript p. 1-33].  Under the heading "Further Information" he confirmed he had recorded the following in terms of symptoms he was experiencing:

"Feeling of self-pity.  I had a lucrative career in the private sector and was a workaholic in Perth.  I moved to Queensland and accepted this lower level public sector job in order to give more of my time to my wife who looked after me for 48 years.  She had never gone out of home for a job.  I feel sorry for my wife who saw me as a great achiever until I joined the HPW five and a half years ago.  Ever since then she has seen me a broken man and find it hard to hide the fact that I am on stress leave.  So, I am damned if I go to work and damned if I stay at home."  [Transcript p. 1-33]

  1. [17]
    DeAlwis acknowledged that his stress levels and his depression would go up and down from when he was first diagnosed on 28 January 2010 [Transcript p. 1-35].  DeAlwis had the opportunity to compare a Summary of Medical Records from the Banyo Clinic and his own records which he agreed except for an entry on 6 March 2014 they were accurate which included the entry for 28 January 2010 with respect to a psychological injury [Transcript p. 1-39].
  1. [18]
    At the consultation on 28 January 2010 DeAlwis accepted that:
  • Dr Craig Morris had diagnosed an adjustment disorder with depressed mood;
  • he had mentioned his first stressor in 2008; and
  • a mental health plan was formulated but not taken up by him [Transcript p. 1-40].
  1. [19]
    On 5 March 2010 his attendance with Dr Craig Morris was related to work problems which had led to arguments at home [Transcript p. 1-41].  On 20 November 2010 he consulted with Dr Rodney Morris due to work-related stress [Transcript p. 1-42].  A consultation with Dr Craig Morris on 21 December 2010 recorded a diagnosis of an adjustment disorder relating to work stressors [Transcript p. 1-43].  DeAlwis was questioned regarding a number of other occasions up to 2014 where he had sought medical treatment for stress-related conditions that were work-related [Transcript p. 1-44].  DeAlwis had also acknowledged a number of domestic situations raised with medical practitioners at the same time of work-related stressors [Transcript p. 1-47].
  1. [20]
    DeAlwis acknowledged agreeing that all the instances prior to September 2013 occurred but after 20 September 2013 he went home cured only to be shattered on 20 February 2014 at the meeting [Transcript p. 1-52].  The issues prior to 20 September 2013 were described as "very minor issues" [Transcript p. 1-53].
  1. [21]
    By way of re-examination (as the Appellant was self-represented) DeAlwis gave evidence that the 20 February 2014 incident was a "very different issue" as he was humiliated, insulted and degraded.  While symptoms did exist prior to September 2013 he managed them because he was "really tough".

Dr Rodney Morris

  1. [22]
    Dr Rodney Morris, a qualified General Practitioner, gave evidence that dating back to January 2010 he had occasionally treated DeAlwis for work-related stress matters acknowledging there was a treatment on 18 March 2013.  Dr Rodney Morris gave evidence that whilst most of the treatments for DeAlwis were undertaken by Dr Craig Morris he offered an opinion that DeAlwis had a "sickness that comes and goes and stressors at work are a significant part".  Dr Rodney Morris described a psychological injury as being "less clear and they happen over a period of time".  He went on to state that "a lot of people get stressed at work and manage to cope.  It all depends on the level of stress that is involved".
  1. [23]
    Under cross-examination Dr Rodney Morris acknowledged that DeAlwis' medical records show most of the stressors relied upon for a diagnosis of an adjustment disorder were work-related stressors [Transcript p. 2-13].  On 23 October 2010 DeAlwis was treated for endogenous depression which was described as ongoing depression.  On 20 November 2010 DeAlwis exacerbated his depression with work‑related stressors as the cause [Transcript p. 2-14].  It was Dr Rodney Morris' opinion that from 2010 onwards there had been continuing work-related stressors recorded on DeAlwis' medical record summary [Transcript p. 2-16].  DeAlwis according to the evidence had managed to cope with his condition from 2010 onwards and if he had been diagnosed earlier he would have had a workers' compensation medical certificate sooner [Transcript p. 2-18].  Dr Rodney Morris was unsure what had caused DeAlwis' progressive illness but it was certainly work at the end that broke him down [Transcript p. 2-19].

Regulator

  1. [24]
    The witness for the Regulator was Dr Craig Morris.

Dr Craig Morris

  1. [25]
    Dr Craig Morris, a General Practitioner, issued DeAlwis with a workers' compensation medical certificate on 16 April 2014 diagnosing a psychological injury which showed the injury starting on 16 April 2009.  Dr Craig Morris believed that it was difficult to give a definite date when the injury started but it was sometime around 2009/2010.  The stressors relied upon from 2009 were continuing including the present, were work-related stressors.
  1. [26]
    Dr Craig Morris confirmed he diagnosed DeAlwis with a psychological type injury on 28 January 2010 in the form of an adjustment disorder with depressed mood.  At the time he suggested a mental health plan and the stressors recorded were the stressors given at the time.  The major contributor was said to be work.  On 5 March 2010 he acknowledged there was probably some evidence of ongoing work stress.  The condition of endogenous depression could according to Dr Craig Morris be diagnosed as an adjustment disorder.  At a consultation with DeAlwis on 21 December 2010 he agreed he had recorded work-related issues as being the reason for his diagnosis of an adjustment disorder.
  1. [27]
    Dr Craig Morris recalled he had an interaction with DeAlwis' workplace regarding his stress and he had been asked by DeAlwis to correspond with the employer.  The predominant factor to DeAlwis' depression had been work-related conditions ongoing.
  1. [28]
    On 27 February 2014 Dr Craig Morris recorded the history provided by DeAlwis on that day but could not recall mention of a meeting on 20 February 2014 and had not entered it in his notes.  The history recorded was:
  • "most qualified accountant
  • is now in low level job
  • Downgraded so not to be a workaholic
  • Feels he can't live 'without the job' - Fears retirement
  • visited Malaysia to see a dying friend
  • Makes suggestions that are ignored
  • Feels he is given difficult work and removed from the current 'cream' work
  • Angry and can't sleep - cries heavily
  • Feels confident about work
  • poor sleep".
  1. [29]
    On 4 March 2014 DeAlwis again consulted with him and he continued to diagnose an adjustment disorder recording in the medical notes:
  • "Still issues with work
  • They seem upset with performance
  • He seems obsessed about
  • He feels harassed".

Again there was no mention of the meeting on 20 February 2014 in the notes.  Dr Craig Morris would have thought with it being work-related he would have mentioned it.  On or around 4 March 2014 Dr Craig Morris was asked to comment whether DeAlwis could work effectively within a team or whether he was impaired by his condition.

  1. [30]
    According to Dr Craig Morris there had obviously been bad interaction between management and DeAlwis causing depression and had continued persistently for years.  DeAlwis' condition first assessed on 28 January 2010 continued due to the interactions.  The work stressors were said to be the major significant contributor to his injury.
  1. [31]
    Under cross-examining Dr Craig Morris gave evidence that most of his consultations with DeAlwis had actually dealt with work-related issues and on occasion his home life [Transcript p. 2-37].  Medication was prescribed for DeAlwis to deal with his condition and it was hard for him to say what percentage was work or home [Transcript p. 2-38].  Up until 16 April 2014 Dr Craig Morris had not considered DeAlwis would be able to claim compensation [Transcript p. 2-38].  Dr Craig Morris reaffirmed that he had no recall of the meeting of 20 February 2014 being mentioned at the 27 February 2014 consultation [Transcript p. 2-40].  Dr Craig Morris offered evidence that the current injury could be a fresh injury or an aggravation of an existing injury [Transcript p. 2-42].

Submissions

Regulator

  1. [32]
    The issue to be determined by the Commission was whether the Appellant had lodged his claim for compensation within the allowed time and therefore whether his claim for compensation was valid and enforceable.
  1. [33]
    The relevant sections of the Act were identified as follows:

"131Time for applying

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

"141Time from which compensation payable

  1. (1)
    The entitlement to compensation for an injury arises on the day the worker is assessed by -
  1. (a)
    a doctor; or
  1. (b)
    if the injury is a minor injury - a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or
  1. (c)
    if the injury is an oral injury and the worker attends a dentist - the dentist.
  1. (2)
    However, any entitlement to weekly payment of compensation starts on -
  1. (a)
    if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury - the day after the worker stops work because of the injury; or
  1. (b)
    if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury - the day the doctor, nurse practitioner or dentist assesses the injury.
  1. (3)
    Subsections (1) and (2) are not intended to limit any availability for compensation for the day of injury provided for under part 8.
  1. (4)
    Subsection (2) is subject to section 131(2)."
  1. [34]
    In the matter of Simon Blackwood (Workers' Compensation Regulator) v Toward[1] President Martin determined the meaning of "assess an injury by a doctor" the term used in the Act to trigger the period allowed in which to commence a claim under the Act:

"[43] I now turn to the meaning of the word 'assess' in s 141(1).  The word is more commonly associated with matters concerning, among other things, the determination of the value of property or the fixing of an amount of taxation which is owed.  The Macquarie Dictionary (5th Edition) gives another meaning: "to measure or evaluate" and that is the meaning which should be given to "assess" in the context of the Act.

[44] 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.  It has not been established that the doctors directed themselves to that issue until the time of the making of the claim.  Each of them was concerned with the treatment of Mr Toward. They knew that he had suffered injuries at various times but they did not direct their minds to the question of which physical injury, if any, arose out of employment."

  1. [35]
    DeAlwis had lodged a claim on 17 April 2014 for workers' compensation with the first workers' compensation medical certificate (dated 16 April 2009) issued by Dr Craig Morris which stated he had a psychological injury suffered on 16 April 2009 some five years previous.
  1. [36]
    A Statement of Stressors produced by DeAlwis and lodged with the Commission on 10 March 2015 identified 13 stressors and it was conceded by DeAlwis that his psychological injury was due to work-related stressors that "waxed and waned" or "went up and down" from even before 28 January 2010.  The "Psychological and psychiatric injury" claim form signed on 30 April 2014 by DeAlwis showed that the symptoms started "Roughly five years ago" and that the "Symptoms were aggravating" when he broke down and cried on 15 April 2014.
  1. [37]
    The medical records of DeAlwis recorded the following:
  • 28 January 2010 - first reference to work issues - diagnosed Adjustment Disorder with Depressed Mood - GP suggested Mental Health Plan;
  • 5 March 2010 - reports poor sleep as he has many worries - likely DeAlwis will change job;
  • 4 September 2010 - diagnosed Endogenous Depression - not clear whether related to work or relationship with wife;
  • 2 October 2010 - angry with frustration;
  • 20 November 2010 - stressed by under-work - job not interesting - feels victimised by his bosses;
  • 21 December 2010 - bored with the public sector - somewhat stressed - diagnosed Adjustment Disorder - prescription of Axit 15 ceased;
  • 25 January 2011 - Department of Housing and Public Works request a report on his ability to work;
  • 3 February 2011 - reports victimised at work - diagnosis Adjustment Disorder with Depressed Mood - prescribed Lexam;
  • 17 March 2012 - feeling harassed at work - dispute with management;
  • 18 March 2013 - stressed at work - diagnosed stress but not prescribed anti-depressants;
  • 27 February 2014 - in low level job - downgraded - removed from "cream" work - diagnosed Adjustment, Depression - prescribed Axit 30;
  • 4 March 2014 - feeling harassed at work - diagnosed Adjustment - depressed and obsessive traits - referred to a Psychologist on a GP Mental Health Care Plan;
  • 31 March 2014 - issue with being short with a person at work - work taken away - fears aimed at having him removed from work; and
  • 16 April 2014 - excluded from flexi-time at work - cries at work - not given work - told underperforming - diagnosed Anxiety/Depression - issued a workers' compensation medical certificate.
  1. [38]
    It was submitted that the medical history, Statement of Stressors and the Psychological and psychiatric injury claim form clearly show DeAlwis first suffered a psychological injury at least five years prior to 16 April 2014 before being diagnosed as an "adjustment disorder with depressed mood" due to work-related stressors on 28 January 2010.  DeAlwis had reluctantly agreed in his evidence that his ongoing depression would go up and down even prior to 28 January 2010.
  1. [39]
    On the evidence of the medical practitioners it was submitted:
  • Dr Rodney Morris - When taken to DeAlwis' medical history gave evidence that his underlying mental illness had waxed and waned.  He agreed that work-related stressors were a major significant contributing factor to the injury.  He agreed that DeAlwis' sickness was a continuation from the first entry on 28 January 2010 although different injuries, in other words, different stressors causing the injury.
  • Dr Craig Morris - Diagnosed DeAlwis with a psychological injury on 28 January 2010 with all stressors work-related.  The doctor agreed DeAlwis continued to be injured with his depression waxing and waning from 28 January 2010 until 16 April 2014.
  1. [40]
    In the matter of Groos v WorkCover Queensland[2] President Hall made the following comment on whether an applicant for compensation had suffered an injury within the meaning of the Act:

"The question whether an applicant for compensation has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive."

  1. [41]
    In conclusion it was submitted DeAlwis was first assessed by a doctor to have a psychological injury on 28 January 2010.  DeAlwis in his Psychological and psychiatric injury claim form considered the symptoms "Roughly five years ago" and the symptoms aggravated on 15 April 2014.
  1. [42]
    In response to an explanation given by Vice President Linnane on 20 May 2015 about the preliminary point to be argued DeAlwis had revised his evidence and placed Stressor 10 as a stand-alone stressor yet there is no record of him having informed Dr Craig Morris of the meeting on 20 February 2014 to which Stressor 10 relates.
  1. [43]
    On the medical history, evidence of both medical practitioners and the evidence of DeAlwis, the Commission could not be satisfied the claim for compensation had been lodged within the six months after the entitlement arose.
  1. [44]
    DeAlwis had failed to satisfy the Commission that he complied with s 131(1) of the Act and therefore his application was out of time, invalid and unenforceable.  To wave compliance with s 131(1) of the Act DeAlwis needed to satisfy the Commission that in respect of s 131(5) of the Act that his failure to lodge an application within time was due to a mistake, or that he was outside the State or reasonable cause.  There is no evidence to support he was outside the State.
  1. [45]
    The submission cited the matter of Melbourne and Metropolitan Tramways Board v Witton[3] of Herring C in relation to the phrase "mistake or reasonable cause".
  2. [46]
    DeAlwis had failed to satisfy that the provisions of s 131(5) of the Act applied and therefore it should be found that his application for compensation was out of time and it is invalid and unenforceable.

Appellant

  1. [47]
    DeAlwis identified a lack of knowledge with regards to case law and the meaning of such law however his case was that the two doctors had finally seen there were different episodes regarding his stress-related conditions when he was cured and a month later a different stressor causes an injury.
  1. [48]
    The Statement of Stressors prepared by DeAlwis to justify his case for a psychological injury had the purpose of giving a long history on unreasonable management action but that did not mean that every episode of unreasonable management action related to the same injury.  The injury subject of the application was said to have occurred on 16 April 2014 because on 20 September 2013 all his issues were resolved and his worries were over.
  1. [49]
    On 20 February 2014 the meeting that was held led to him breaking down, crying and shouting and was a manifestation of his sickness.  What occurred that day was recorded at the medical consultation on 16 April 2014 and was a different episode.  The previous episodes identified were relevant only to highlight the environment of reasonable management action.  He had been cured of all other injuries and this was a new injury.
  1. [50]
    DeAlwis argued he was entitled to workers' compensation relating to a psychological injury but was unsure when the entitlement commenced because to date no one had accepted any liability.  On 28 September 2013 in terms of his psychological problems all was behind him and none of the past had any relevance in the current case.

Conclusion

  1. [51]
    The matter to be determined in this case was a discrete point being whether or not DeAlwis in lodging an application for workers' compensation on 17 April 2014 did so pursuant to s 131(1) of the Act:

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

  1. [52]
    If an application has been lodged outside the six month period identified in s 131(1) of the Act it is possible to waive s 131(1) or (2) pursuant to the circumstances identified in s 131(5) of the Act:

"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."
  1. [53]
    The time from which an entitlement to compensation arises for an injury is identified at s 141(1):

"The entitlement to compensation for an injury arises on the day the worker is assessed by -

  1. (a)
    a doctor; or
  1. (b)
    if the injury is a minor injury - a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or
  1. (c)
    if the injury is an oral injury and the worker attends a dentist - the dentist."

Factual Material before the Proceedings

  1. [54]
    The factual material before the proceedings is as follows:
  • On 16 April 2014 a workers' compensation medical certificate was issued by Dr Craig Morris which stated:
  • date of injury - 16 April 2009; and
  • stated cause of injury being work-related.
  • An application for workers' compensation was lodged by DeAlwis on 17 April 2014.
  • On 30 April 2014 DeAlwis lodged a "Psychological and psychiatric injury" claim form in which he:
  • identified symptoms starting "Roughly five years ago"; and
  • an "attack" at a "staff meeting" on 20 February 2014 as being one of the most significant contributing factors to his injury.
  • A Statement of Stressors was lodged with the Commission on 10 March 2015 that identified work-related stressors said to be causative of his psychological/psychiatric condition.  The stressors covered a period of time from December 2008 until 20 April 2014.
  • A Patient Summary relating to DeAlwis' attendance at the Banyo Clinic from January 2008 until 16 April 2014.
  1. [55]
    For the application for compensation to be legitimate it must have been lodged within six months of the entitlement arising, dating from the day the claimant is assessed by a person prescribed at s 141(1)(a), (b) or (c) of the Act.
  1. [56]
    The starting point for a claim of this nature is the issuing of a workers' compensation medical certificate which in this case was issued on 16 April 2014 by Dr Craig Morris.  Importantly it identified the stated date of injury as being 16 April 2009, some five years previous.
  1. [57]
    As the injury in question was of a psychological/psychiatric type the Commission had the benefit of pursuing the Statement of Stressors relied upon by DeAlwis which identified a range of work-related stressors from December 2008 until 16 April 2014 which coincided with the period of the stated date of injury in 2009.
  1. [58]
    DeAlwis had argued that of the 13 stressors contained within the Statement of Stressors the only one relevant in these proceedings was Stressor 10 which related to a meeting that had been held on 20 February 2014 and was the catalyst for his subsequent decompensation on 16 April 2014.  In the absence of any other stressor DeAlwis' claim for workers' compensation would have been valid and enforceable as the application would have been lodged within six months after he was assessed by Dr Craig Morris.
  1. [59]
    Unfortunately for DeAlwis there were a range of other stressors that offered an extensive history regarding work-related incidents relied upon by him to establish that the employer engaged in unreasonable management action that had contributed to the psychological/psychiatric injury suffered by him.  The stressors provided a history of events in significant detail which are unable to be extracted to a point where only Stressor 10 remains relevant, particularly as the stated date of injury identified as 16 April 2009 enlivens stressors identified in or around that period of time.
  1. [60]
    On examination of the Patient Summary pertinent to treatments received by DeAlwis from 2008 until 16 April 2014 it becomes evident that he was first diagnosed with a psychological/psychiatric condition in the form of an adjustment disorder on 28 January 2010 by Dr Craig Morris who recorded in the notes a range of work-related issues as the history behind the diagnosis.  The records indicate a significant pattern of diagnosing of stress-related conditions for DeAlwis which have also a work-related component as the history to the diagnosis.  These dates include:
  • 5 March 2010;
  • 20 November 2010;
  • 3 February 2011;
  • 17 March 2012;
  • 18 March 2013;
  • 27 February 2014;
  • 31 March 2014; and
  • 16 April 2014.
  1. [61]
    The information contained within the patient summary was confirmed in the course of evidence in the proceedings from Drs Rodney Morris and Craig Morris who detailed the various treatments undertaken by themselves with each acknowledging DeAlwis had received treatment for a psychological/psychiatric condition from 2010 for issues that were work-related.  Dr Craig Morris gave further evidence of the work-related issues being the pre-determinant factor of the injury suffered by DeAlwis.
  1. [62]
    The medical evidence before the proceeding is sufficient to establish that DeAlwis suffered an injury of a psychological/psychiatric type first diagnosed by a doctor on 28 January 2010 and was as a result of work-related issues.  There continued to be similar medical diagnosis' and for the same reasons in the years beyond 2010 until April 2014 during which time DeAlwis had remained in the employ of the Department of Housing and Public Works.  DeAlwis in cross-examination conceded that the stress‑related condition "waxed and waned" through the period from January 2010 until April 2014 despite giving evidence that prior to September 2013 all other stressors had been cured.

Finding

  1. [63]
    On the consideration of the evidence and material before the proceedings I make the following findings:
  • that DeAlwis having been assessed by Dr Craig Morris on 28 January 2010 as suffering from an adjustment disorder with depressed mood in respect of identified work-related stressors had failed to lodge an application for compensation pursuant to s 131(1) of the Act that being within six months of the entitlement to compensation arising;
  • that in the absence of evidence that the failure to lodge the application for compensation was due to reasons identified at s 131(5)(a), (b) or (c) of the Act there is no case to be considered for waiving s 131(1) or (2) of the Act; and
  • the application for workers' compensation lodged on 17 April 2014 was out of time and as such not valid or enforceable.
  1. [64]
    The Appellant is ordered to pay the Regulator's costs incidental to and associated with the hearing of the jurisdictional matter heard in Brisbane on 1 and 2 June 2015.
  1. [65]
    I order accordingly.

Footnotes

[1] Simon Blackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 8

[2] Groos v WorkCover Queensland (2000) 165 QGIG 106

[3] Melbourne and Metropolitan Tramways Board v Witton (1963) VR 417

Close

Editorial Notes

  • Published Case Name:

    DeAlwis v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    DeAlwis v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 158

  • Court:

    QIRC

  • Judge(s):

    Member Thompson IC

  • Date:

    26 Aug 2015

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
Groos v WorkCover Queensland (2000) 165 QGIG 106
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 106
Cite 2 - (2000) 165 QGIG 106
Melbourne & Metropolitan Tramways Board v Witton (1963) VR 417
2 citations
Jump To
Cite 1 - (1963) VR 417
Cite 2 - (1963) VR 417
Workers' Compensation Regulator v Toward [2015] ICQ 8
2 citations
Jump To
Cite 1 - [2015] ICQ 8
Cite 2 - [2015] ICQ 8

Cases Citing

Case NameFull CitationFrequency
De Alwis v Blackwood (Workers' Compensation Regulator) [2017] QIRC 834 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.