Whitehead v Workers' Compensation Regulator
[2017] QIRC 71
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- Unreported Judgment
- Whitehead v Workers' Compensation Regulator[2017] QIRC 71
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Whitehead v Workers' Compensation Regulator[2017] QIRC 71
Whitehead v Workers' Compensation Regulator[2017] QIRC 71
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Whitehead v Workers' Compensation Regulator [2017] QIRC 071 |
PARTIES:
| Whitehead, Tracy Jane (appellant) v Workers' Compensation Regulator (respondent) |
CASE NO: | WC/2016/11 |
PROCEEDING: | Appeal |
DELIVERED ON: | 1 August 2017 |
HEARING DATES: | 27 and 28 February 2017 |
MEMBER: | Deputy President D L O'Connor |
ORDERS:
|
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Where application lodged 256 days late – Whether reasonable cause – Appeal dismissed |
CASES: | Workers' Compensation and Rehabilitation Act 2003 (Qld), s 131, s 141, s 548 Work Health and Safety Act 2011 (Qld), s 28 Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207 Black v City of South Melbourne [1963] VR 34Fairhurst v the Workers' Compensation Regulator [2015] QIRC 197 Macdonald v Q-Comp (2008) 188 QGIG 180 Simon Blackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 008 Quinlivan v Portland Harbour Trust [1963] VR 25 Wiley v Q-COMP (Unreported, Townsville Magistrates Court, Acting Industrial Magistrate Bice, 30 May 2003) |
APPEARANCES: | Mr A W Collins of Counsel, for the applicant, instructed by Rapid legal Solutions Dr M Spry of Counsel, instructed directly by the respondent |
Reasons for Decision
- [1]The appellant was employed at the Townsville Hospital from approximately February 1999 until 26 May 2015. The events leading to appellant's alleged injury and decompensation can be summarised as a series of bullying incidents which occurred over a number of months. It is submitted by the appellant that her first experience of negative behaviour from other employees occurred sometime in October 2013 and that there were attempts made by the hospital's management to mediate the issues giving rise to the alleged bullying. It is also submitted by the appellant that, for the purposes of the Workers' Compensation and Rehabilitation Act 2003, her injury arose at the time at which it was first assessed by a doctor.[1] The date of the assessment was 3 March 2014. The six month period in which to lodge her claim, as specified by the Act, expired on 3 September 2014. The appellant lodged her claim on 26 May 2015, some 265 days late.
- [2]The issue for the Commission to determine is whether the appellant's claim for workers' compensation was validly made. The sole question to be determined is:
Did the appellant have a reasonable cause for failing to lodge her application within the six month statutory timeframe?
- [3]For the reasons which follow, I have concluded that that the appellant did not have a reasonable cause for failing to lodge her claim for compensation within the timeframe.
Facts
- [4]Whilst it is not essential to outline in detail the factual background, I will give a brief overview in order to give some context to the decision. The appellant was longstanding employee of the respondent as an administration officer in the Townsville Hospital. For some period of time the appellant had been suffering from an unidentified illness which caused dizziness and fainting. In the first part of 2013, the appellant took a two-month period of sick leave. She returned to work at the Hospital's Emergency Department in March 2013.
- [5]On returning it became apparent that the appellant's relationship with her supervisor had deteriorated. Shortly after resuming her role the appellant had a performance appraisal and development meeting with her supervisor. The appellant's supervisor told her that she would no longer be filling in for the supervisor when the supervisor was on leave. The appellant had previously filled in for her supervisor. In May 2013 the appellant's dizziness and fainting was diagnosed as vertigo. The appellant and the supervisor had an altercation the day before the supervisor's leave in June 2013. There were further issues on the supervisor's return. Problems continued until October 2013 at which point the appellant was referred to another person to whom the appellant detailed a number of ongoing issues and incidents.
- [6]In November 2013 the appellant experienced further medical problems and these were treated in December. Meanwhile, there had been further incidents between the appellant and her supervisor. It was during this period of time that the appellant commenced seeing a psychologist for counselling. She also made a complaint against her supervisor alleging bullying. In February 2014 there was an unsuccessful attempt at a mediation between the appellant and her supervisor.
- [7]On 3 March 2014 the appellant attended on Dr Carmelina Mamawal, a General Practitioner, and was diagnosed with an adjustment disorder with depressed mood. It is agreed between the parties that, for the purposes of s 131 of the Act, 3 March 2014 is the date of the assessment of the injury and the date from which time ran.[2]
- [8]On 10 March 2014 the hospital confirmed that the appellant's complaint would be investigated and pending the completion of the investigation, she would be temporarily transferred within the hospital. That "move" would last until May 2015 at which point the appellant was returned to her position in the Emergency Department. The appellant continued to see the psychologist for the duration of her period away from the Emergency Department.
- [9]The appellant returned to the Emergency Department on 12 May 2015 and undertook a week of training. The appellant took a week of scheduled carers leave and returned to work on 26 May 2015, that day was also her last day of work. The appellant filed her application for compensation on 26 May 2015.
Legislative Context
- [10]By the express terms of s 131(1) of the Act, a claim is valid and enforceable only if the time limit is met. As observed by his Honour, President Hall in ANZ Banking Group v Q-COMP, "noncompliance with the six-month time limit … is a matter of some gravity."[3]
- [11]Time begins to run from the date that the injury is first assessed by a doctor.[4] Under s 131(5) the insurer may waive the time limit set out in subsection (1) if it is satisfied that the claimant's failure to lodge the application was due to a mistake, or being out of the state, or a reasonable cause.
- [12]On 26 October 2015, WorkCover concluded that the claim for compensation was valid and enforceable having been lodged within the legislative timeframe. It apparently did so the basis that her injury occurred on 26 May 2015 the date when she decompensated and sought treatment from a General Practitioner.
- [13]Consequently, the Townsville Hospital sought a review the decision of WorkCover to waive the requirements of s 131(1) and allow the application for workers' compensation. The respondent set aside the decision of WorkCover and substitute it with the decision that the application for compensation was not valid and enforceable. It is against that decision that the appellant now appeals to Commission.
- [14]The hearing before the Commission is a hearing de novo[5] and the onus rests on the appellant to demonstrate, on the balance of probabilities, that her failure to lodge the claim for compensation within the statutory timeframe was due to a mistake, absence from Queensland or a reasonable cause.
Appellant's case
- [15]The appellant contends that the failure to lodge went only to whether she had reasonable cause for having lodged her application so far out of time. Counsel for the appellant did not pursue an argument based on mistake or absence from the State.
- [16]The reasonable cause for the delay between the initial assessment of the injury and the date of lodging the workers' compensation claim was said to be because the appellant had been removed from the source of her stressors; was undergoing counselling; and was trying to "find a way forward to work with her employer."[6] It was only when "…she could no longer work due to her injury on the relevant date that she required the lodgement of an Application for Compensation."[7]
- [17]In the appellant's Amended Statement of Facts and Contentions it is contended that:
"…her Application for Compensation is valid and falls within the exception "a reasonable cause" within the Act on the basis that her approach to resolving these issues was to internally address them with the staff involved along with Hospital management."[8]
- [18]It was submitted by the appellant that her wish to "work with her employer" in an effort to resolve the issues giving rise to her injury came from the duties set out in section 28 of the Work Health and Safety Act 2011. The following is an extract of the appellant's oral submissions:
"It's submitted that [the appellant] has cooperated with her employer, who was acting in accordance with their duty of care, which has the effect of minimising the incidents of workplace injuries and reducing the burden to the Workers' Compensation Scheme. And it is submitted that that in itself has to be a reasonable cause under the circumstances, that she has cooperated fully with her employer, her employer who has put in place a system – or put in place a proposal which, plainly, is in line with what they perceived to be their duty of care."[9]
- [19]During her examination-in-chief, the appellant expressed her reasons for failing to lodge her claim for compensation within time in the following way:
"MR COLLINS: Why was it that you didn't make any application for workers compensation from when you were diagnosed with the adjustment disorder back in March of 2014 through until when you actually did?
APPELLEANT: Because I had the opportunities to move away from the area. I honestly believed that, as I said, lessons would have been learnt from the process that we had been through. Yeah. And – and my – my work ethic is that you are part of society and – and you go to work to make a living. You don't – you know, you take time off when – when it's needed. And – and, you know, that – that's me. That if there's another option, I don't believe in taking the easy option to go and sit at home and – and not be a part of – contribute to society. I believed that – that
…
things were going to get better. I – I tried to keep believing in the system, but that moving away – and that I had
…
taken reasonable steps."[10]
- [20]The appellant contends that she was acting to reduce the harm to her own health by following workplace procedures for doing so, that involved seeing a counsellor and moving away from her stressors. In cross-examination she told the Commission that she hoped that the investigation would bring about positive changes, she knew she was moving jobs and indeed moved to a position with medical imaging and that there were other solutions to her taking stress leave. Only when forced back to her substantive position in the Emergency Department; after being refused pre-approved leave; a final decompensation; and, ceasing her employment with the respondent, did the appellant decide to lodge a claim for compensation.
Respondent's case
- [21]The respondent's case can be summarised as follows:
- The appellant's consulting a psychologist is a cause, in and of itself, to lodge a claim for workers' compensation.[11]
- The evidence does not suggest that the appellant was unable to cope with the process of lodging a claim.
- The evidence does not suggest that the appellant was prevented from lodging a claim.
- Ignorance of an entitlement to apply for compensation is insufficient to meet the hurdle set out in section 131(5).
- The appellant did not exhibit an intention to lodge an application. Moreover, waiting till something further occurs in a workplace is not sufficient to establish a reasonable cause for not lodging within time.
- There is no evidence that the appellant took any steps to make an application.[12]
Reasonable cause
- [22]It is necessary in this matter to examine, briefly, the term "reasonable cause." In Black v City of South Melbourne the Full Court of the Supreme Court of Victoria wrote:
"The expression "reasonable cause" appears to us to mean some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable."[13]
- [23]In Black v City of South Melbourne their Honours cited the definition of "reasonable cause" provided by Sholl J in Quinlivan v Portland Harbour Trust.[14] A restatement of Sholl J's definition is apposite:
"…a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."[15]
- [24]While the remarks in Black and Quinlivan were obiter (indeed, both cases go to whether an applicant was bound by the conduct of an agent, conduct which ultimately resulted in the delay) the approach has been adopted by the Commission as a useful guide to the interpretation of reasonable cause.[16]
Conclusion
- [25]The appellant's submissions insofar as they relate to the Work Health and Safety Act 2011 is misguided. The appellant's compliance with the Work Health and Safety Act 2011 does not go to whether there was reasonable cause for her failure to comply with s 131 as there is nothing in the Work Health and Safety Act 2011 which hinders, prevents, or prohibits her from complying with s 131. Complying with legislation which does not prohibit you from doing something cannot then be said to be a reasonable cause for not doing that thing. Instead, that submission, along with the others made by the appellant, illustrates what the appellant was doing over the period leading up to her filing her claim. It is a history which does not disclose a reasonable cause.
- [26]The appellant contends that she was not aware of her workers' compensation rights. In cross-examination, the appellant said:
"And at no time was it discussed with me that there was a six-month period that I had to – no one had ever discussed – and stress leave – I wasn’t even aware that it was work – that you applied for workers’ compensation. It was never discussed that if you take stress leave, you apply for workers’ compensation, and then you have a six-month period. Like, none of that was made aware for me. It was an option to take stress leave, but I had other options available to me at that time."[17]
- [27]I find it hard to accept that the evidence of the appellant that she was not aware of the need to apply for workers' compensation let alone the requirement to lodge an application for compensation within a six month period. The appellant accepts that her Union was involved in the complaint matter, she was referred to Ms Carey, a Clinical Psychologist at North Queensland Psychology Services initially under the employee assistance program and thereafter, as a private patient. As at 28 April 2014 she was on a Mental Health Care Plan prepared by Dr Reuben Scott, her General Practitioner to treat generalised anxiety due to her work environment. Throughout her treatment by Ms Carey, updates were sent to Dr Scott identifying workplace health issues.[18] Notwithstanding all of these things, no claim was made until 26 May 2015, some 14 months after her entitlement to compensation arose.
- [28]Counsel for the respondent referred me to the decision of Neate C Augustynski v Simon Blackwood (Workers’ Compensation Regulator). In that decision Neate C wrote:
"The Respondent and [the employer] submit that, if the Appellant was sufficiently unwell to be issued with nine such medical certificates over a period of almost five months, and to have received treatment from a psychologist and a psychiatrist during that period, then there was clearly a sound basis for lodging a compensation application rather than a reasonable cause for not doing so. I agree.
In any case, [the employer] points to the decision of an Industrial Magistrate in Wiley v QCOMP,[19] where an employee claimed that he did not make his application within the statutory time frame as he believed that, after some time off from work duties and with a period of rest, he would be able to recover from episodes of back and neck pain that he was suffering. The Industrial Magistrate held that the Appellant's belief would not amount to reasonable cause for the late application."[20]
- [29]I respectively adopt the reasoning of the learned Commissioner.
- [30]The appellant in effect made a choice recognising as she did in her evidence that she had a number of options. The appellant freely chose an approach to the resolution of her issues by internally addressing them with the staff involved along with Hospital management.
- [31]It is not the case that the appellant's employer told her that she should follow a particular course instead of claiming workers' compensation. Something such as that may have changed the outcome of this matter and brought it within the factual realms of other matters where a worker has relied on the advice or guidance of another seemingly more knowledgeable person.[21]
- [32]There has been no act or omission, to adopt to the approach in Black v City of South Melbourne, identified by the appellant which prevented her from lodging the claim for compensation.
- [33]I find that there is no reasonable cause for the failure to lodge within time. The application for compensation was not lodged within sixth months of the entitlement to compensation arising and accordingly the claim is out of time and therefore not valid or enforceable.
- [34]I make the following orders:
- Appeal dismissed.
- The decision of the respondent dated 10 December 2015 is affirmed.
- The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed, or failing agreement, to be the subject of a further application to the Commission.
Footnotes
[1] Workers' Compensation and Rehabilitation Act 2003, s 141.
[2] Simon Blackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 008, [11]-[30].
[3] ANZ Banking Group v Q-COMP (2004) 175 QGIG 1125, 1126.
[4] Section 141 Workers' Compensation and Rehabilitation Act 2003; Simon Blackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 008, [11]-[30].
[5] Macdonald v Q-Comp (2008) 188 QGIG 180, 180.
[6] T2-30, Ll 31-33.
[7] Amended Statement of Facts and Contentions filed 28 September 2016, [29].
[8] Ibid [22]
[9] T2-26, Ll 1-7.
[10] T1-45, Ll 3-17.
[11] Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207, [54].
[12] See: Fairhurst v the Workers' Compensation Regulator [2015] QIRC 197, [13].
[13] Black v City of South Melbourne [1963] VR 34, 37-38.
[14] Quinlivan v Portland Harbour Trust [1963] VR 25.
[15] Ibid 28.
[16] For example: Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207, [48]-[50].
[17] T2-7, Ll7 – T2-8, Ll2.
[18] Exhibit 12.
[19] Wiley v Q-COMP (Unreported, Townsville Magistrates Court, Acting Industrial Magistrate Bice, 30 May 2003).
[20] Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207, [54]-[55].
[21] See: Grant Beattie AND Q-COMP (WC/2012/469) – Decision.