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Nuttall v Workers' Compensation Regulator[2017] QIRC 69

Nuttall v Workers' Compensation Regulator[2017] QIRC 69

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Nuttall v Workers’ Compensation Regulator [2017] QIRC 069

PARTIES: 

Nuttall, Andrew

(Appellant)

v

Workers’ Compensation Regulator

(Respondent)

CASE NO:

WC/2016/159

PROCEEDING:

Appeal against decision of the Workers’ Compensation Regulator

DELIVERED ON:

20 July 2017

HEARING DATE:

20 June 2017

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Roney

ORDERS:

  1. The Appeal is dismissed.
  2. The decision of the Regulator dated 9 August 2016 is confirmed.
  3. The Parties have liberty to apply to the Commission as to the question of costs. The Parties are invited to attempt to agree costs, but failing agreement, this question is to be subject to a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Application for compensation lodged six months and twenty-two days after date of entitlement to compensation for injury arose – whether time limit for lodgement should be waived – whether failure to lodge was due to mistake or a reasonable cause

CASES:

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 131, s 141

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

Black v City of South Melbourne [1963] VR 34

Cook v Q-Comp (2008) 187 QGIG 220

JBS Australia Pty Limited v Workers’ Compensation Regulator [2017] QIRC 26

Kier v Blackwood [2014] QIRC 123

Murray v Workers’ Compensation Regulator [2016] QIRC 81

Project Blue Sky Inc & Ors v Australian Broadcasting Authority 194 CLR 355

Quinlivan v Portland Harbour Trust [1963] VR 25

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

Tanna v Blackwood [2014] QIRC 187

Whipps v Workers’ Compensation Regulator [2017] QIRC 29

APPEARANCES:

Mr S. McGhie, Solicitor with Richardson McGhie, for the Appellant

Mr T.A. Nielsen, Counsel, directly instructed by the Workers’ Compensation Regulator, for the Respondent

Decision

Introduction

  1. [1]
    This is a case about a technical preliminary point concerning time which will determine whether the claim fails now or proceeds to the next stage for consideration by the Regulator.
  1. [2]
    The Application for Compensation the subject of this appeal is brought beyond the six month period allowed under the Workers’ Compensation and Rehabilitation Act 2003 (Qld)[1] (WCRA). It was lodged twenty-two days out of time.[2]
  1. [3]
    Relevantly, s 131 of the WCRA provides;

"131 Time for applying

  1. (1)
    An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.
  1. (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."
  1. [4]
    The WCRA allows for waiver of the strict time limits if the insurer is satisfied that a claimant’s failure to lodge the application was due to mistake and/or the claimant’s absence from the State and/or a reasonable cause.
  1. [5]
    Mr Nuttall (the Appellant) here relies on s 131(5)(a) and s 131(5)(c) of the WCRA.

The Appellant’s Entitlement to Compensation

  1. [6]
    Section 141 of the WCRA deals with the date upon which an entitlement to workers’ compensation arises. It provides;

"141 Time 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. [7]
    In Blackwood v Toward it was held that the date upon which the time runs for the purposes of s 141 is when there has been some "evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment".[3] This is now the settled position on the law with respect to when time commences to run.
  1. [8]
    It is accepted between the parties that the entitlement to compensation arose on and from 30 November 2015 and expired on 30 May 2016.

 Agreed Facts

 The following facts have been agreed between the Parties;

  1. In November 2015 the Appellant was employed as a plumber for Superior Plumbing Brisbane Pty Ltd (Superior Plumbing);
  1. The Appellant consulted Dr Michael H Golden of the Brighton Medical Centre on or about 24 November 2015 in relation to the symptoms of the hernia;
  1. Dr Golden completed and signed a Queensland Workers’ Compensation Medical Certificate on 30 November 2015;
  1. The said Certificate dated 30 November 2015 was never lodged with WorkCover Queensland (WorkCover) (Exhibit one);
  1. On and from 30 November 2015 the Appellant had an entitlement to compensation pursuant to the WCRA;
  1. The Appellant was advised by his doctor that he would require surgery and arrangements were made for the surgery to be conducted through the public system at the Royal Brisbane Hospital. The Appellant was placed on a waiting list;
  1. The Appellant received a letter from the hospital indicating that he had an appointment on 4 April 2016 but this was later postponed until 15 April 2016. The surgery was not in fact performed until 13 June 2016;
  1. Subsequent to the surgery, on 21 June 2016, the Appellant again attended at Dr Golden’s surgery and saw a Dr Coralie Bishop. She completed a fresh Queensland Workers’ Compensation Medical Certificate on that date;
  1. Dr Bishop caused documents to be sent to WorkCover. WorkCover initiated the Application and the claim process was triggered;[4]
  1. The Application for Compensation is taken to have been made on 21 June 2016;
  1. On 27 June 2016 WorkCover advised the Appellant that his Application was not lodged within the six-month period specified in section 131(1) of the Act and declined to waive the time period for applying;
  1. On 4 July 2016, the Appellant made an Application for Review to the Workers’ Compensation Regulator. The Regulator concluded that the Appellant’s Application was lodged outside the period of six months referred to in section 131(1) of the Act and that it was not satisfied that the failure to lodge the Application was due to a reason outlined in section 131(5) of the Act. The Regulator concluded that the time for applying should not be waived according to section 131(5) and therefore confirmed the decision by WorkCover;
  1. The claim made by the Appellant was twenty-two days out of time.[5]

Issues for Consideration

  1. [9]
    The following issues are relevant on this appeal;
    1.  Can Mr Nuttall prove, on the balance of probabilities, a ‘mistake’[6] or ‘reasonable cause’[7] which excused him from his failure to lodge his application for compensation within the relevant six month period?; and
  1. If so, should the Commission exercise its discretion to waive the requirement in s 131(1) of the WCRA?

 Nature of the Appeal

  1. [10]
    This Appeal is made pursuant to s 550(4) of the Act. It is conducted by way of a hearing de novo, which means that my decision is to be decided afresh based upon the findings made on the evidence placed before the Commission during the hearing.[8]

 Onus and Standard of Proof

  1. [11]
    The onus of proof lies with the Appellant on the balance of probabilities to prove a ground contained in s 131 of the WCRA and that the Commission should exercise its discretion to waive the time limit.[9]

 Evidence in Appellant’s Case

  1. [12]
    Mr Nuttall was the sole witness in the Appellant’s case.

Mr Nuttall’s Evidence

  1. [13]
    Mr Nuttall gave evidence that he sustained a hernia injury to his left groin area in the course of moving hot water systems and toilets in November 2015 whilst working for his employer, Superior Plumbing. His evidence was that he told his supervisor, Aaron Kirkby about his injury. He said he went to his local General Practitioner, Dr Golden (Brighton Medical Practice), on 24 November 2015, and the Doctor referred him for scans to be taken. He said he returned to see Dr Golden again on 30 November 2015 at which time Dr Golden provided a workers’ compensation medical certificate (exhibit one).
  1. [14]
    Mr Nuttall’s evidence was that "he assumed Dr Golden would lodge" an application for compensation. He said previously that is what has happened when he has had workers’ compensation claims. He said "I never actually filled out any forms myself, other than being at the hospital, when I broke my fingers and times before that" (T1-10).
  1. [15]
    He said after he had the scans he continued working, and there was no treatment recommended at this time. He said he was able to perform his duties, but he experienced discomfort and a "little bit" of pain at times when he felt the hernia "pop out" when he was in "certain positions, [doing] certain lifting, [and doing] certain different things that would weigh quite a bit" (T1-11). He said that when this happened he would "give [the hernia] a little rub and push it back in" (T1-11).
  1. [16]
    Ultimately, Dr Golden referred him for surgery to the Royal Brisbane Hospital. Dr Golden’s medical surgery arranged the scans and the Hospital appointments. He said he recalls being contacted by the Hospital. He said quite a number of weeks after the scan he telephoned the Brighton Medical Practice to follow up on the surgery. At that time he was advised that his case did not have a high priority as he was able to continue to work, that his case had been classified as a "category 2", and that he "just had to wait" (T1-10). There was some rescheduling of the surgery which occurred, with it ultimately occurring on 13 June 2016.
  1. [17]
    His evidence was that after he was first admitted to the hospital, when he and his partner were waiting downstairs, he "pulled [his] scans out" from amongst his medical paperwork and saw the original medical certificate that Dr Golden had previously written out (T1-12). His evidence was that he said to himself "oh bugger" (T1-12). He said that at that time his observations were "oh, something’s happened here", "this isn’t right" and "[the original medical certificate] should have been put in" (T1-12).
  1. [18]
    He said postoperatively he returned to the Brighton Medical Practice and saw Dr Bishop on 21 June 2016. He said he took the original medical certificate with him. He said the Doctor was able to perform a search on a computer screen and confirmed an Application for Workers’ Compensation had not been lodged and advised him that she would lodge one on that day. After that visit he returned to work with a different employer. He said he received a telephone call from WorkCover who notified him that his claim had been declined because it was out of time. He said he did not know about the six month limit for lodgement of claims.
  1. [19]
    In cross-examination it was put to Mr Nuttall that he had a history of making four separate workers’ compensation claims (T1-13), apart from the one subject to this appeal. He said he was aware of only three. He said he remembered filling out some forms relating to a previous ‘broken fingers’ injury at the hospital, and that "[he] guess[ed]" that he would have been there when his Doctors’ Surgery filled out the forms, or that he could have filled out the forms at the hospital, relating to another previous injury, puncture wounds to his right forearm (T1-14).
  1. [20]
    Documents relating to a 1999 workers’ compensation claim were entered into evidence as exhibit two. They related to a puncture of Mr Nuttall’s arm. On reflection he was able to recollect lodging an application for compensation in the prescribed form for that injury (T1-15).
  1. [21]
    Documents were entered into evidence as exhibit three in relation to a workers’ compensation claim in 2001 for a head injury. He said he had signed that claim but believed someone else had filled it out. He said he thought the Doctor may have lodged the claim. He acknowledged amongst the claim documents that there was a letter from WorkCover dealing with the issue of delay in lodgment of a claim which sought an explanation for the delay.
  1. [22]
    Documents were entered into evidence as exhibit four relating to a cut to his left wrist. On reflection Mr Nuttall said he now remembered that injury. He said this had occurred when he was cutting roof flashing. He conceded that part of the application appears to have been completed in his hand writing (T1-25). He also agreed that when a WorkCover claim is submitted that it covers compensation as well as medical and other expenses (T1-26, 27).
  1. [23]
    Documents were entered into evidence as exhibit five which related to a 2005 workers’ compensation claim by the Appellant for broken fingers. He accepted in cross-examination that those documents included a request from WorkCover for further information in relation to the injury.
  1. [24]
    In relation to the matter the subject of this appeal, the 2015 injury, he said he did not personally complete the application. He agreed that he had completed four applications for compensation in the past (T1-29).
  1. [25]
    He gave evidence that he had advised his employer Mr Kirkby of the fact of the injury and that it was work related. He accepted that he said to Mr Kirkby, when asked how he had sustained the hernia injury, that he was "not sure" and that "it could have been anything" (T1-29). He said that he intended that comment to be referable to not being sure what particular activity at work had caused the injury (T1-30). He said he is unable to recall the exact conversation but said there were two or more conversations. In the earlier conversation he maintains he said it was work related. He said in the latter conversation the "could have been anything" remark was intended by him to refer back to the earlier conversation referencing work duties. Mr Nuttall said as a result of his advice to Mr Kirkby of his injury, Mr Kirkby provided him with a trolley to assist him in the movement of toilets and hot water systems.
  1. [26]
    Mr Nuttall said he also reported the injury to "Rob", a site foreman for the head contractor. He said he had a conversation with Rob about it. He said he did not complete an incident report with Rob, nor did he sign a Safety Work Method Statement. It was put to him that Mr Kirkby would give evidence that he was never told by Mr Nuttall that the injury was work related. Mr Nuttall disagreed with this. It was further put to Mr Nuttall that the first time he told Mr Kirkby the injury was work-related was seven months after the injury occurred, at a time after the surgery, and that he did not tell Mr Kirkby about any WorkCover claim until after the surgery. Mr Nuttall did not accept these propositions (T1-31).
  1. [27]
    In cross-examination, Counsel for the Respondent suggested to Mr Nuttall that he didn’t mention to Dr Golden that his injury was work-related on the first consultation on 24 November 2015. He did not agree with that proposition, and maintained that he did mention this to Dr Golden at that time (T1-32). Mr Nuttall agreed that the workers’ compensation certificate was not issued on the first date of his appointment with Dr Golden, namely 24 November 2015. He said the medical certificate was issued on the second appointment date, 30 November 2015, after the Doctor had verified, from perusal of the scans, which he had had by then, that the injury was a hernia. He gave evidence that he could not recall any conversation with Dr Golden about a workers’ compensation claim. He accepted the proposition that Dr Golden did not provide him with a workers’ compensation application form. He maintained that he was "under the assumption" Dr Golden would lodge the claim because he was given a workers’ compensation medical certificate. His evidence was that he didn’t "recall him saying that he would definitely do it" and that "he didn’t know whether he did say it or if he didn’t say it", relating to whether the Doctor would lodge the application for him (T1-33, 34).
  1. [28]
    Mr Nuttall was also cross-examined about why he bulk-billed his consultations when in the past his understanding was that doctors charged WorkCover for such expenses. His evidence on this was that "there was a lot going on in my life at that point in time" and "that was the last thing that I was sort of thinking about" (T1-34). He accepted that the medical surgery had not provided any assurance to him that it had lodged a workers’ compensation claim on his behalf (T1-34).
  1. [29]
    Of his appointment with Dr Bishop on 21 June 2016 he recalls the Doctor had looked his matter up on the computer and when realising that it had not been lodged said that "we better lodge one" (T1-35). He then told the Doctor to lodge it. He was unable to recall anything else about the consultation.
  1. [30]
    Within a short space of time after the consultation on 21 June 2016 he recollects receiving a call from Andrew Lamb from WorkCover about the claim, specifically about the issue of delay. He said he advised Mr Lamb that he had been on a waiting list and that surgery had been delayed and that on reviewing his paperwork at the time of surgery he realised that the claim had not been lodged. He gave evidence that he believed he told Mr Lamb that he was relying on the Doctor to lodge his application. He couldn’t recall anything further about the conversation with WorkCover. 
  1. [31]
    A letter from WorkCover to Mr Nuttall dated 27 June 2016 rejecting his claim for compensation was put to him for comment (exhibit six). The part of the letter entitled "Reasons for the Decision" was expressly put to Mr Nuttall for comment. It is relevant to set out that part of the letter

 "Reasons for the decision

In reaching the decision, I have reviewed all the information gathered on the application. In summary, the following information is noted:

WorkCover received your application for compensation on 21 June 2016 for a ‘Left inguinal hernia’ sustained in November 2015.

You advised that you were first seen in November 2015 for this injury and diagnosed with a hernia which you attributed to moving hot water systems in the course of your employment with Superior Plumbing Brisbane Pty Ltd. The medical certification confirms that the date first seen and diagnosis was November 2015. When you were asked what the reason was for the delay in lodgement of your application, you advised that you had the paperwork, but you had forgotten to lodge it until you found it after surgery had been done on 13 June 2016."

  1. [32]
    In regard to Mr Nuttall’s application to review the decision (exhibit six) to reject his claim dated 6 July 2016, it was put to Mr Nuttall in cross-examination that he did not mention in that document that he was relying upon his Doctor to lodge the claim. It was put to him that at the time he made the review that he hadn’t relied upon the Doctor to lodge the forms. He rejected these propositions. 
  1. [33]
    Further, in a similar vein in cross-examination, it was put to Mr Nuttall that in an email to the Q-COMP Review Unit on 13 July 2016 when his case was subject to review, that he also failed to explain the reason for delay as the reason he identified in this appeal (T1-40, 41).
  1. [34]
    Exhibit seven in the proceedings is an email from Mr Nuttall to the Q-COMP Review Unit headed "Financial hardship". It states:

"Hi I have a case in review, case number is –S15cp329353. I am sending this email as I am in servers (sic) financials hardship. This will be the fifth week I have not received any form of money. I am still unable to return to work due to my hernia surgery. I have an appointment with the hospital and surgeon tomorrow being the 14th July to determine when I will be fit to return to work. I am unsure of how this will go as I am still in a considerable amount of pain and discomfort from the procedure. This financial hardship is putting a strain on my relationship with my partner who I live with and have been dependent on these last five weeks along with my family who I have also had to borrow money off to scrape by. We also have a foster daughter so it’s not just myself I have to support. I am asking for all of this to please be taken into consideration when assessing this case and the priority as to when it is to be reviewed. Thanks for your time, Regards Andrew Nuttall."

  1. [35]
    Mr Nuttall’s explanation for not raising the lodgement issue was because he thought the review was confined to issues of financial hardship. He said for this reason he only raised issues of financial hardship in the email (exhibit seven).
  1. [36]
    In re-examination Mr Nuttall confirmed that while he might have completed some of the paperwork for previous claims, that he does not remember lodging any of the previous claims (T1-42).

 Evidence in Respondent’s Case

  1. [37]
    The Respondent called Aaron Kirkby and Andrew Lamb as witnesses.

Aaron Kirkby’s Evidence

  1. [38]
    Mr Kirkby is a Director of Superior Plumbing. He described Mr Nuttall as being employed by him from mid to late 2015 to early 2016. He would spend time with Mr Nuttall in the course of work once or twice a week (T1-45). He said he recalled that Mr Nuttall had told him in late 2015 that he had a hernia and needed to get an operation. He said that when he enquired of Mr Nuttall how the injury had happened, that he (Nuttall) had replied he was "not sure" (T1-44). Mr Kirkby said most of their conversations about the hernia devolved upon the hospital rescheduling the surgery that was required and the fact that Mr Nuttall would require time off.
  1. [39]
    Mr Kirkby said the first time he discovered Mr Nuttall had made a workers’ compensation claim relating to the hernia injury was when he was telephoned by WorkCover, after Mr Nuttall had his surgery, to advise him that a claim had been put in by Mr Nuttall. He said he recalled telling Mr Nuttall prior to this conversation that he would have to get a medical certificate or medical clearance before he returned to work.
  1. [40]
    He outlined that the usual procedure on a workplace injury occurring onsite would be to fill out an incident report for the head contractor, in this case AJB Enterprises. He said that Superior Plumbing also had a requirement to fill out an incident report form. He said no form of either type had been lodged by Mr Nuttall. He estimated that there was more than six month’s lapse between the mention of the injury and his advice from WorkCover that there was a claim.
  1. [41]
    Under cross-examination he was less confident about the precise timing of the first conversation he had with Mr Nuttall about a hernia but said that it occurred in the last three months of 2015 on a site at Maryvale Road out the front of a unit. He made no notes of that conversation and no one else was present for it. Regarding the second conversation, he said it also occurred on site. He recalled asking Mr Nuttall how he sustained the injury and he said that in "roundabout words" Mr Nuttall replied he "was not sure" and "it could have been lots of things" (T1-48). He stated that Mr Nuttall definitely didn’t tell him that it had happened at work in either conversation. He said if he had that information he would have filled out a report.
  1. [42]
    He said that not long after Mr Nuttall’s surgery, perhaps one or two weeks, Mr Nuttall had sent him a text message about returning to work. He said he told Mr Nuttall that he would require a medical clearance. He said he never obtained a medical clearance from Mr Nuttall nor were there further requests for work. Further, under cross-examination he resisted the notion that he had effectively terminated Mr Nuttall by mid-July but did say Mr Nuttall was in communication with "Karen" of his office to sort Mr Nuttall’s holiday pay. Mr Kirkby said he was operating on the basis that Mr Nuttall would return to work. He said he did not resent the fact of the workers compensation claim being made.
  1. [43]
    Further he said that he was of the understanding, after the first conversation with Mr Nuttall, that the presence of the hernia was a longstanding issue for him. He expressly disagreed that he had been told from the outset that the hernia was work related. He said that after his first conversation with Mr Nuttall about the hernia he "got people to help him lift the hot water systems and toilets" (T1-52). However, he said that an injury could not have been caused by the moving around of hot water systems because hot water systems were not being installed into the relevant job at that time (T1-52, 53). He said at that time Mr Nuttall may have been moving toilets around but that he had trolleys onsite which could be used for that purpose (T1-52).

Mr Andrew Lamb’s Evidence

  1. [44]
    Mr Lamb’s evidence was that he was a WorkCover employee of 17 years and specifically had been a customer adviser for 12 years. Mr Lamb identified and spoke to the documents which were tendered in evidence as exhibits two, three, four and five. The contents of those exhibits is variously:

Exhibit one

Puncture on arm 1999

Exhibit two

Head injury 2001

Exhibit three

Cut to left wrist 2003 claim

Exhibit four

Broken fingers 2005 injury

  1. [45]
    Further, Mr Lamb was able to identify that the documents comprising exhibit eight is Mr Nuttall’s 2015 claim.
  1. [46]
    With reference to exhibit 8, he was able to identify that page six of that claim document was a system generated application for compensation and that pages one and two of the claim document are a tax invoice for the medical practice and a certificate from the medical practice which had been sent to WorkCover. 
  1. [47]
    He was also able to identify electronic file notes that had been entered in the system in the course of the 2015 claim.
  1. [48]
    He said that previously there was a requirement for a paper lodgement of an application, but that requirement no longer existed. There was nothing particularly controversial about this evidence. Rather it explained the process whereby Dr Bishop had provided a medical certificate and through the process of providing that document and her invoice the system had generated an application, which was commenced by Terri Steel, a claims representative at WorkCover.
  1. [49]
    Mr Lamb gave evidence of a discussion he had with Mr Nuttall on 24 June 2016. Mr Lamb produced his notes of this conversation.[10] He explained that he didn’t have an independent recollection of the conversation that took place. He explained his usual practice of keeping file notes, and that he used a headset and typed whilst having a conversation on the telephone if "there’s something more in depth" (T1-58). He felt that when he reviewed the notes of the relevant conversation contained in exhibit eight that he was "taking the basics that the assessor needed for that statement". He said he was "quite sure" that he would have been "asking, listening and…keying as he went" (T1-58). He did say that from time to time he made his own personal notes of conversations on a notepad but could not confirm that he had done so in relation to Mr Nuttall’s matter. When referring to his notes of the conversation on 24 June 2016, he observed in relation to the ‘delay to lodge claim – on waiting lists, public system, now called up for surgery and done 13/06/2016’ notation that he did not recollect being told any other reason for delay other than what was recorded on the form (T1-59).
  1. [50]
    I had no reason to doubt the evidence of Andrew Lamb. I accept his evidence particularly in relation to his conversation with Mr Nuttall.

 Appellant’s Submissions

  1. [51]
    Mr McGhie, solicitor on behalf of the Appellant, made oral submissions at the conclusion of the hearing.
  1. [52]
    On the application of the ‘mistake’ limb of s 131(5) of the Act, he said the test for the existence of a mistake was one of fact, and it was for the Commission to identify whether or not it accepted the Appellant’s evidence that he operated under a mistake that his practitioner Dr Golden would lodge an application for workers’ compensation on or about 30 November 2015. That was the date of the medical certificate Dr Golden provided to him (Exhibit 1) and the date of his second consultation with the Doctor.
  1. [53]
    Mr McGhie observed there was no rational explanation for the conduct of Mr Nuttall other than that he was under a mistake. Mr McGhie observed that his actions are not capable of reconciliation and that there was no explanation for that view, namely that the Doctor would lodge the workers compensation application. He says of his client that "he thought that would happen" with reference to the lodgment of the workers’ compensation application, but conceded that there was no basis upon which that belief could be held rationally.
  1. [54]
    Mr McGhie said the test of whether something was a mistake was not subject to a qualification of reasonableness. This issue was later taken up by the Regulator’s Counsel. Mr McGhie observed this particular claim, relating to Mr Nuttall, was different to his other workers’ compensation claims because he continued to work and he didn’t need to be paid because of his continuation in the workplace on this claim.
  1. [55]
    On the question of ‘reasonable cause’ the Appellant argues that the ‘reasonable cause’ is shown and proven on the Appellant’s evidence that he believed that Dr Golden would lodge the workers’ compensation claim.
  1. [56]
    It is submitted that it was reasonable for someone like Mr Nuttall to have made that assumption. It is submitted that he acted reasonably in reaching this position, and by extension, remaining of that view for the duration of the lodgement period of six months.
  1. [57]
    He submitted that notwithstanding the previous claims made by Mr Nuttall he could not be considered as someone who was experienced or familiar with paperwork or familiar with any kind of applications system. Further he submitted that Mr Nuttall was inexperienced, unqualified, and "a tradesman".
  1. [58]
    He agreed with the Commission’s views that the Appellant could be described as naïve in the assumption that he alleges to have had made.
  1. [59]
    In closing, Mr McGhie accepted that the ability of the Appellant to advocate that there was a reasonable cause for the delay in lodgment of the application was difficult because it could not properly be said that Mr Nuttall’s conduct was reasonable. He emphasised Mr Nuttall’s standing as a tradesman in the construction industry and his absence of familiarity with detail. He also relied upon the fact that previously, things were seemingly done for him in this regard, namely scans were organized and appointments and hospital bookings were made.

 Respondent’s Submissions

  1. [60]
    The Respondent provided written submissions dated 20 June 2017 and spoke to those submissions through its Counsel, Mr Neilsen, at the conclusion of the hearing.
  1. [61]
    The Respondent submitted that the Appellant bears the onus to prove mistake or reasonable cause for the purposes of s 131 of the WCRA.
  1. [62]
    The Respondent’s primary submission is "that the Appellant has not discharged the onus of proof on the balance of probabilities that there has been mistake and/or reasonable cause for the waiver of the time period".[11]
  1. [63]
    In oral submissions the aspects of Mr Nuttall’s evidence which were not consistent with the existence of a workers’ compensation claim were highlighted, namely;
  • Mr Nuttall had experience in lodgment of four prior claims;
  • No evidence was called from Dr Golden, nor could Mr Nuttall remember the conversations he had with Dr Golden about lodgment of his claim;
  • That the Appellant took home with him the original workers’ compensation certificate;
  • Notwithstanding that the Appellant maintains he had a valid workers’ compensation claim, he allowed himself to be placed on a public hospital list;
  • That the doctors’ expenses, and presumably the scan expenses, were paid by Medicare rather than being paid by workers compensation.

 Legal Principles 

 Mistake

  1. [64]
    ‘Mistake’ as used in s 131 of the WCRA should bear its ordinary meaning. Further, the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[12]
  1. [65]
    It might be said that the purpose of s 131 of the WCRA is to set up a time frame for the bringing of claims. Mistake operates to exclude the operation of the usual rules with respect to time. Therefore, the word ‘mistake’ does not invite an expansive construction; it should be construed in accordance with its function, namely to provide a limited exception to the general position.[13]
  1. [66]
    There must be a causative relationship between the mistake and the failure to lodge.[14] This follows from the words of the statute which provide that the failure to lodge must be "due to" mistake. In other words, the mistake must have been operational and enduring for the lodgement period, in this case being six months. It is not enough that there is an initial mistake. In this regard, the Full Court of the Supreme Court of Victoria in the decision of Black v City of South Melbourne[15]observed:

"It has to be borne in mind, however, that what the applicant under the section has to show in order to make out a case of mistake thereunder, is not merely that he was mistaken but that his failure to give notice within the prescribed time was occasioned by mistake. It is not enough for him to show that he was mistaken, if in fact he was, unless that mistake occasioned the failure to give notice. The first inquiry must therefore always be as to the cause of the failure to give notice as required by the statute. If it appears that the reason why notice was not given as required was that the person concerned had never heard of the section and did not know of its requirements, then he fails to establish mistake occasioning the failure to give the required notice, even though it should turn out that he was laboring under a misconception as to the law relating to his claim". 

  1. [67]
    Logically, for the failure to lodge to be "due to" the mistake, the mistake must be ongoing. It cannot be said to be causative if the reasons for the non-lodgement is "due to" another cause or causes.
  1. [68]
    Even if I accept there was an initial mistake by Mr Nuttall of the kind he submits for, I must be satisfied, as a matter of fact and on the balance of probabilities, that the mistake was causative of the failure to lodge throughout the period 30 November 2015 to 30 May 2016.
  1. [69]
    Finally, ignorance of the right to claim compensation or of the time limit within which to make a valid claim does not amount to mistake.[16] Something more is required.[17]

 Reasonable Cause

  1. [70]
    A reasonable cause for delay is one "which a reasonable man would regard as sufficient, a cause consistent with reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man".[18] In Black v City of South Melbourne[19] the Full Court of the Supreme Court of Victoria said:

"The Inquiry here appears to be of a much wider kind justifying a more liberal attitude. The expression ‘reasonable cause’ appears to us to mean some act or omission which operated to prevent the giving of notice, and which was reasonable in the circumstances".

  1. [71]
    In Miller v Nominal Defendant[20], Davies JA maintained on the question of reasonableness it was to be considered objectively but having regard to the claimant’s personal characteristics such as age, intelligence and education.
  1. [72]
    However, there must be a causative relationship between the reasonable cause and the failure to lodge.[21]
  1. [73]
    The question of whether leaving the matter of making a claim to an ‘apparently competent agent’ has been considered in a number of authorities.[22] In Quinlivan v Portland Harbour Trust[23], Scholl J said:

"Rather, the principle which I prefer to adopt, looking at the matter from the point of view of what is just both to the applicant and to the proposed defendant, is to ask myself whether the applicant has done what a reasonable man might have been expected to do in leaving the matter to an apparently competent agent, who has ‘let him down’. The applicant cannot have contemplated the need to do more, and the proposed defendant cannot fairly or reasonably demand that he should have done more. If, in those circumstances, he has failed to get in his notice in due time because of the default of his agent, on whose knowledge or expected activity in the matter he reasonably relied, I am prepared myself to hold that his failure to give the notice was occasioned by reasonable cause, and I so hold in the present case".

  1. [74]
    Applying Quinlivan and Miller to this case, the test for consideration in this case is of a reasonable objective man with Mr Nuttall’s respective foibles and abilities.

 Findings

 Report of Injury to Mr Kirkby

  1. [75]
    At the outset of the hearing it appeared that a material finding to be made, relevant to credit only, was whether Mr Nuttall had reported his injury to Mr Kirkby, his former employer.  While less satisfied by the end of the hearing that such a finding was necessary, the Commission has for completeness made a finding on this topic. It is however not one I regard particularly relevant to the ultimate findings to be made pursuant to s 131 of the Act.
  1. [76]
    Mr Nuttall and Mr Kirkby gave competing evidence about the fact of whether Mr Nuttall reported the injury to Mr Kirkby. On balance I prefer the evidence of Mr Kirkby. Mr Kirkby was a more forthright and convincing witness than Mr Nuttall. He had better recollection of events generally and of his responsibilities on the site. In particular I accept his evidence that had he been told of a workplace injury he would have filled out a report. Mr Nuttall’s evidence was that he did say words to the effect that "it could have been anything" (T1-29), but he intended that remark to refer to not knowing specifically how the injury was caused in the workplace. I do not accept his evidence to the extent that he maintains he made it clear to Mr Kirkby that he was speaking about events at work. Mr Nuttall was casual in a number of his observations, forgetful and imprecise. To the extent that his evidence differs from Mr Kirkby. I preferred Mr Kirkby’s evidence.
  1. [77]
    Expressly I find that Mr Nuttall did not bring to the attention of Mr Kirkby that he had sustained a workplace injury causing a hernia, prior to his surgery in June 2016. However, this is a finding relevant to credit only, as the question as to whether Mr Nuttall sustained a workplace injury is outside the scope of this decision.

Reasonable Cause - Has Mr Nuttall established that there was reasonable cause for the delay surrounding the failure to lodge a claim? 

  1. [78]
    I do not accept Mr Nuttall’s evidence that he entrusted the lodgement of his claim to Dr Golden after his consultation on 30 November 2015.
  1. [79]
    Mr Nuttall’s evidence on this was that he "assumed Dr Golden would lodge [the application]". On his own evidence he said he "[doesn’t] recall [Dr Golden] saying that he would definitely [lodge the claim]" (T1-33). The notes and documents of the Brighton Medical Centre tendered into evidence, as well as the evidence given by Mr Nuttall do not support the inference being drawn that Dr Golden undertook to lodge the claim.
  1. [80]
    Mr Nuttall’s conduct, post 30 November 2015, is not consistent with someone who had previously lodged a claim with WorkCover. On his evidence, he had part completed documents and received correspondence and telephone calls from WorkCover relating to four earlier workers’ compensation claims. None of this occurred during the period from 30 November 2015 to 21 June 2016, on the Appellant’s evidence. In these circumstances he should reasonably have been on notice that something was amiss.
  1. [81]
    The reality was that the present circumstances were not consistent with his previous experience with such claims. His revision in cross-examination that he had previously had involvement in completing workers’ compensation applications before was very destructive of his credibility.
  1. [82]
    On the facts before me, Mr Nuttall acted casually and recklessly as to the existence of any claim. In truth I do not believe he turned his mind to the existence of a claim until he saw Dr Bishop on 21 June 2016. Mr Nuttall did not make further enquiries with the Brighton Medical Centre about the progress of the claim after the consultation on 30 November 2015. Also, on the various opportunities provided to him to raise the reason for delay which he now advances (namely the assumption regarding Dr Golden) with WorkCover, he did not do so. This causes me to further doubt his evidence.
  1. [83]
    The uncontested evidence is that he did not raise that the delay was attributed to relying on his doctor when he spoke to Andrew Lamb on 24 June 2016, nor did he do so in writing to the QCOMP Review unit on 13 July 2016 (exhibit seven). He also did not raise this cause for delay in his "application for claim review" dated 6 July 2016 (exhibit six).
  1. [84]
    Even if I had accepted Mr Nuttall’s evidence that he left the claim process to Dr Golden, I find, in any event, that it was not reasonable to rely upon Dr Golden to lodge the claim. Dr Golden is a medical practitioner, and is not acting as Mr Nuttall’s agent or solicitor.[24] The matter of lodging a workers’ compensation application is a legal matter.[25]
  1. [85]
    I am unable to accept on the balance of probabilities that the Appellant’s failure to lodge a claim within the six months statutory period was due to a reasonable cause for the purpose of s 131(5)(c) of the WCRA.

Mistake - Has Mr Nuttall established that he was under a mistake about the lodgement of the claim?

  1. [86]
    The previous findings I have made on the question of ‘reasonable cause’ are also relevant on the issue of mistake. The same facts which mitigate against a finding that there was a reasonable cause not to lodge, also are supportive of the view there was no mistake operative so as to be a cause of the failure to lodge.
  1. [87]
    A mistake of fact, if to be believed, must be demonstrated to occur in a manner which is reasonable or explicable, in all the circumstances. For the Commission to believe Mr Nuttall was under a mistake, his conduct post mistake would need to be consistent with someone who had made the alleged initial mistake and continued to operate under a misapprehension. Mr Nuttall cannot escape the need to act reasonably and consistently if he is to be believed.
  1. [88]
    I find that, as referred to earlier, Mr Nuttall’s post 30 November 2015 conduct is not consistent with someone who believed that a WorkCover claim had been lodged on their behalf and was an effective valid claim. Rather his behavior was consistent with that of someone who had made no claim.
  1. [89]
    Mr Nuttall’s evidence was that he located or found the original workers compensation certificate on the day of his surgery (13 June 2016). He said this caused him to realise a claim had not been lodged. Yet he made or caused to be made no enquiry about the claim, except to Dr Bishop on 21 June 2016 when he was attending upon her for a post-surgical visit.
  1. [90]
    Reasonably, if he had realised, as he said he did, as at 13 June 2016 that no claim had been lodged, he would have taken some steps at the time to make enquiry about the claim and to lodge one.
  1. [91]
    I am unable to accept on the balance of probabilities that the Appellant’s failure to lodge a claim within the six months statutory period was due to a mistake for the purpose of s 131(5)(a) of the WCRA.

 Discretion

  1. [92]
    As a consequence of the findings I have made that there is no operative excuse for the failure to lodge, it is not required that I decide whether the Commission exercise its discretion under s 131(5) of the WCRA.

 Conclusion

  1. [93]
    Grounds for the waiver of time under s 131(5) of the WCRA have not been shown by the Appellant to exist on the balance of probabilities. The Applicant has failed to discharge the evidentiary onus.

Orders

  1. The Appeal is dismissed.
  1. The decision of the Regulator dated 9 August 2016 is confirmed.
  1. The Parties have liberty to apply to the Commission as to the question of costs. The Parties are invited to attempt to agree costs, but failing agreement, this question is to be subject to a further application to the Commission.

Footnotes

[1] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 131(1).

[2] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 141; Simon Blackwood (Workers’ Compensation Regulator) v Toward [2015] ICQ 8 [44].

[3] Simon Blackwood (Workers’ Compensation Regulator) v Toward [2015] ICQ 8 [44].

[4] Agreed between the parties at Hearing.

[5] Agreed between the parties at Hearing.

[6] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 131(5)(a).

[7] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 131(5)(c).

[8] JBS Australia Pty Limited v Workers’ Compensation Regulator [2017] QIRC 26 [3]. 

[9] Whipps v Workers’ Compensation Regulator [2017] QIRC 29 [5].

[10] Exhibit 8, pages 42 and 43.

[11] Respondent’s Written Submissions at [22].

[12] Project Blue Sky Inc & Ors v Australian Broadcasting Authority 194 CLR 355, 381.

[13] Ibid.

[14] Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207 [40].

[15] Black v City of South Melbourne [1963] VR 34, 36.

[16] Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207 [42]-[43]; Black v City of South Melbourne [1963] VR 34, 37.

[17] Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207 [43].

[18] Quinlivan v Portland Harbour Trust [1963] VR 25, 28; Cook v Q-Comp (2008) 187 QGIG 220.

[19] Black v City of South Melbourne [1963] VR 34, 36.

[20] [2003] QCA 558.

[21] Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207 [40].

[22] Quinlivan v Portland Harbour Trust [1963] VR 25; Kier v Blackwood [2014] QIRC 123; Tanna v Blackwood [2014] QIRC 187; Murray v Workers’ Compensation Regulator [2016] QIRC 81.

[23] Quinlivan v Portland Harbour Trust [1963] VR 25, 31.

[24] Quinlivan v Portland Harbour Trust [1963] VR 25.

[25] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Andrew Nuttall v Workers' Compensation Regulator

  • Shortened Case Name:

    Nuttall v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 69

  • Court:

    QIRC

  • Judge(s):

    Roney IC

  • Date:

    20 Jul 2017

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
Augustynski v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 207
5 citations
Jump To
Cite 1 - [2014] QIRC 207
Cite 2 - [2014] QIRC 207
Cite 3 - [2014] QIRC 207
Cite 4 - [2014] QIRC 207
Cite 5 - [2014] QIRC 207
Black v City of South Melbourne (1963) VR 34
4 citations
Jump To
Cite 1 - (1963) VR 34
Cite 2 - (1963) VR 34
Cite 3 - (1963) VR 34
Cite 4 - (1963) VR 34
Cook v Q-COMP (2008) 187 QGIG 220
2 citations
Jump To
Cite 1 - (2008) 187 QGIG 220
Cite 2 - (2008) 187 QGIG 220
JBS Australia Pty Limited v Workers' Compensation Regulator [2017] QIRC 26
2 citations
Jump To
Cite 1 - [2017] QIRC 26
Cite 2 - [2017] QIRC 26
Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123
2 citations
Jump To
Cite 1 - [2014] QIRC 123
Cite 2 - [2014] QIRC 123
Miller v Nominal Defendant[2005] 1 Qd R 135; [2003] QCA 558
1 citation
Jump To
Cite 1 - [2003] QCA 558
Murray v Workers' Compensation Regulator [2016] QIRC 81
2 citations
Jump To
Cite 1 - [2016] QIRC 81
Cite 2 - [2016] QIRC 81
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Quinlivan v Portland Harbour Trust (1963) VR 25
5 citations
Jump To
Cite 1 - (1963) VR 25
Cite 2 - (1963) VR 25
Cite 3 - (1963) VR 25
Cite 4 - (1963) VR 25
Cite 5 - (1963) VR 25
Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 187
2 citations
Jump To
Cite 1 - [2014] QIRC 187
Cite 2 - [2014] QIRC 187
Whipps v Workers' Compensation Regulator [2017] QIRC 29
2 citations
Jump To
Cite 1 - [2017] QIRC 29
Cite 2 - [2017] QIRC 29
Workers' Compensation Regulator v Toward [2015] ICQ 8
3 citations
Jump To
Cite 1 - [2015] ICQ 8
Cite 2 - [2015] ICQ 8
Cite 3 - [2015] ICQ 8

Cases Citing

Case NameFull CitationFrequency
De Sousa v Workers' Compensation Regulator [2019] QIRC 1192 citations
Weder v Workers' Compensation Regulator [2018] QIRC 222 citations
1

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