Scofield v Workers' Compensation Regulator (No. 2)
[2018] QIRC 103
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- Scofield v Workers' Compensation Regulator (No. 2)[2018] QIRC 103
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Scofield v Workers' Compensation Regulator (No. 2)[2018] QIRC 103
Scofield v Workers' Compensation Regulator (No. 2)[2018] QIRC 103
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Scofield v Workers' Compensation Regulator (No. 2) [2018] QIRC 103 |
PARTIES: | Scofield, Yvonne Veronica (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2016/110 |
PROCEEDING: | Appeal |
DELIVERED ON: | 9 August 2018 |
HEARING DATE: | 20 June 2018 |
MEMBER: HEARD AT: | O'Connor DP Brisbane |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF THE REGULATOR – Whether a claim for Workers' Compensation was lodged in time – Where the claim was lodged outside of 6 months after the entitlement to compensation arose – Whether the Appellant demonstrated that there was a reasonable cause for the delay – Where there was no mistake or reasonable cause – Appeal dismissed. |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2016 (Qld) s 131, s 141. ANZ Banking Group v Q-COMP (2004) 175 QGIG 1125 Black v City of South Melbourne (1963) VR 34 Blackwood v Toward [2015] QIRC 005 Van Dongen v Northern Territory of Australia [2005] NTCA 6 |
APPEARANCES: | Mr R Boal of counsel, instructed by hD Lawyers for the appellant. Mr S McLeod of counsel, directly instructed by the respondent. |
Reasons for Decision
- [1]On 3 July 2015 the appellant's solicitor electronically lodged a workers' compensation application with WorkCover. In that application the appellant's injury was described as a "Stroke/brain damage Severe psychiatric injury" which was sustained over a period starting in 2012 and ending in 2014.
- [2]On 10 June 2016 the respondent rejected the application for review on the basis the application for compensation had been made outside of the six month time limit prescribed under s 131 of the Workers' Compensation and Rehabilitation Act 2003.
- [3]The appellant now appeals the respondent's decision to this Commission. In doing so the appellant seeks to establish that her application was made within time, or that one of the discretionary factors within s 131(5) has been made out.
- [4]There are two interacting sections of the Act which govern this appeal. Section 131 outlines the time for applying for compensation, that being six months, while s 141 sets out when an entitlement to compensation arises.
- [5]The appellant's Statement of Facts and Contentions states:
The Appellant asserts that her entitlement for the purposes of sections 131 and 141 of the Act arose on or about 23 June 2015 or 27 July 2015, being the Appellant's first or second consultation with Dr Germain. Dr Germain was the first Doctor to evaluate, form a conclusion or express an opinion that the Appellant had sustained an injury that arose out of her employment.
Alternatively, if it is found that the Appellant's entitlement for the purposes of sections 131 and 141 of the Act arose on 3 April 2014 or on or before 3 January 2015 (being 6 months prior to the date of the Appellant's application for compensation) and as a consequence, the Appellant's application for compensation has been brought out of time, the Commission should be satisfied that the Appellant's failure to lodge the application in time was due to:
a. Mistake; or
b. A reasonable cause[1]
- [6]In short, this appeal involves a determination of three questions:
- When did the appellant's entitlement to compensation arise?
- Was the application for workers' compensation filed within six months of the date that the appellant's entitlement to compensation arose?
- If the application for worker's compensation was filed outside of the six month time limit, can the Commission be satisfied that that was because of a mistake or a reasonable cause?
The Statutory Scheme
- [7]Pursuant to s 131 of the Act, an application for workers' compensation must be lodged within the 6 months following the compensation entitlement arising. However, s 131(5) of the Act allows the insurer to waive the requirements of s 131(1) if it is satisfied that the failure to lodge the application was due to mistake or reasonable cause. In this appeal there is no suggestion that the appellant was absent from Queensland during the relevant period.
- [8]Section 131 of the Act reads as follows:
131 Time for applying
- (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.
- (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 than20 business days before the day on which the valid application is lodged.
- (3)Subsection (2) does not apply if death is, or results from, the injury.
- (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.
- (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 -
(a) mistake; or
(b) the claimant's absence from the State; or
(c) a reasonable cause.
- [9]As outlined above, s 141 governs when an entitlement to compensation arises:
141 Time from which compensation payable
- (1)The entitlement to compensation for an injury arises on the day the worker is assessed by –
(a) a doctor; or
(b) if the injury is a minor injury - a nurse practitioner acting in accordance with the workers' compensation certificate protocol; or
- (c)if the injury is an oral injury and the worker attends a dentist—the dentist.
- (2)However, any entitlement to weekly payment of compensation starts on -
(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
(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.
The Facts
- [10]The appellant was born on 10 November 1958 and completed the equivalent of the high school certificate. After the completion of her schooling, the appellant attended TAFE and completed a two-year nursing course. She commenced her nursing career in aged care facilities in or around 1975. For most of her working life, the appellant has been a nurse working predominately in aged care.
- [11]The appellant commenced her employment at the Sunnymeade Aged Care Facility in November 2012. The appellant told the Commission that she initially enjoyed her work at Sunnymeade but sometime in late 2013 she witnessed the first incident of what she described as "elder abuse" of a patient by a co-worker. The appellant continued to witness this form of abuse until it reached a point that she could no longer tolerate it and made a formal complaint to her supervisor in February 2014.
- [12]The appellant said that the complaint was ignored and no positive action was taken by management to deal with the issue. The appellant described herself as a whistle-blower and she says that as a consequence of the complaint, she was isolated from other workers and subject to bullying and harassment.
- [13]The appellant told the Commission that the stress from the bullying and harassment reached a point that she arranged to see Dr Yasser Zeidan, a General Practitioner.
- [14]On 3 April 2014, the appellant attended on Dr Zeidan whom she described as a friend and trusted person. She said that she relied on Dr Zeidan as he had been her treating general practitioner for more than 10 years. The appellant told Dr Zeidan about some of the issues at Sunnymeade that were causing her stress.
- [15]After her initial consultation with Dr Zeidan the appellant told the Commission that the bullying and harassment worsened.
- [16]The appellant saw Dr Zeidan again on 9 May 2014. The appellant said the reason she saw Dr Zeidan was because of workplace stress. She told the Doctor that she could not deal with her work colleagues; that she was being bullied by other nurses; that co-workers were blocking her out and not talking to her. Dr Zeidan issued the appellant with a medical certificate for the period 9 to 16 May 2014 as she needed some time off work because of the things that were happening to her.
- [17]There was no discussion at the consultation between Dr Zeidan and the appellant concerning workers' compensation or WorkCover. The reason why the appellant did not raise workers compensation with Dr Zeidan was because the appellant did not believe that the symptoms she was suffering was caused by work.
- [18]During this time there were other factors weighing heavily on the appellant's mind such as the breakdown of her daughter's marriage, the death of her mother, the failing health of her father and a failed breast augmentation.
- [19]The appellant resigned from her position at Sunnymeade in October 2014.
- [20]The first occasion on which the appellant said she considered workers' compensation was after she had consulted with a solicitor in June 2015. The reason why she sought legal advice was because she believed that the Caboolture Hospital was in "trouble" because they had sent her home on two occasions on the basis that they thought she was drunk.
Medical Evidence
- [21]The appellant called Dr Elsa Germain, a clinical psychologist and Dr Yasser Zeidan, a general practitioner both from the Apollo Medical Centre.
- [22]Dr Zeidan said that on 3 April 2014 he treated the appellant for ongoing depression and anxiety.[2] In the medical records of the appellant held by the Apollo Medical Centre for 3 April 2014 Dr Zeidan also records:
dad had bronchiectasis; dying; emotional; had to report another nurse in nursing home for elderly abuse; getting hard time at work; not fitting in; will go and work in bush again.
History:
Psychiatric:
Poor sleep. Early morning wakening. Low self esteem. Depressed mood. Anxious. Stress at work. Irritability. Irrational fears. Panic attacks. No suicidal thoughts.[3]
- [23]A further consultation with Dr Zeidan took place on 9 May 2014. The record of that consultation records:
teary; problems at work; complaint about elderly abuse; can't deal with colleagues; reported other nurses about it; being bullyed (sic) after that; they not talking to her; 2 families suing the place; counselling.
On 18 May 2016 WorkCover wrote to Dr Zeiden seeking asking "When did you first diagnose Ms Scofield with a psychological injury relating to her employment?". Dr Zeidan replied"03-04-2014 - Stress at work".
- [24]In cross-examination, Dr Zeidan was asked:
Mr McLeod: On that evidence that she's – the history she's provided to you, you've made an evaluation that she is suffering from stress at work due to what has actually taken place at work itself?
Dr Zeidan: I would say yeah, obviously she's stressed at work because, yeah, of the – yeah, what happened at work. Yeah.
Mr McLeod: Right. Okay. Thank you. And then, if I could ask you to go to the next consultation?
Dr Zeidan: Yes.
Mr McLeod: So we first – the one I've just taken to you was on the 3rd of April 2014?
Dr Zeidan: Yeah.
Mr McLeod: The next one is the 9th of May 2014, so it's a little over a month after you saw her?
Dr Zeidan: Yes.
Mr McLeod: And, putting to one side the urinary tract infection complaint?
Dr Zeidan: Yes.
Mr McLeod: you go into some detail in the consultation note about what has occurred at work?
Dr Zeidan: Yes.
Mr McLeod: And did that, in – again, the history that she's provided to you at that consultation, was that the reason you formed – sorry. I'll rephrase that. The history that is set out there?
Dr Zeidan: Yes.
Mr McLeod: given to you by Ms Scofield, was that the basis upon which you issued the medical certificate to her from the 9th of May 2014 until the 16th of May 2014? I don't record the reason for the medical certificate at the time, yeah, so – so
Mr McLeod: Well, you might not have recorded?
Dr Zeidan: Yeah.
Mr McLeod: the reason why, but could I suggest to you that when one looks at the history that you've set out there, the inference to be drawn if you can't recall?
Dr Zeidan: Yeah.
Mr McLeod: is that the reason why you gave the medical certificate to her for that period of time was because of what was occurring in the workplace. She was teary; she had problems at work. She was being bullied and she needed some time off. Would that be a fair assessment?
Dr Zeidan: I would say, yeah, the medical certificate most probably would be due to maybe stress at work and she wants to have some time off. Yeah.
- [25]Later in cross-examination, Dr Zeidan said:
Mr McLeod: – it must have been serious enough for you, in the consultation note, to put down history, stress at work, and to set out the version of events that she gave you during the consultation in respect to what was occurring to her in the workplace?
Dr Zeidan: Yes. She was emotional, and I asked her, yeah. She said about her dad and then she mentioned her work, so that's – that's right. So when I saw her stressed – so I wrote that she was stressed at work. Yeah.
Mr McLeod: So you didn't think fit to say she was stressed because of her father, did you?
Dr Zeidan: No, stress at work. It was clear it was stress at work. But she was also fearful about her dad, and – but – yeah.
- [26]Dr Zeidan said that he did not issue a workers' compensation certificate to the appellant on 9 May 2014 because he had not diagnosed the appellant as having a workers' compensation injury at the time.[4]
- [27]Dr Zeidan said that it was in the consultation on 20 July 2014 that he first turned his mind to whether the appellant would be eligible for a Workers' Compensation claim. He was asked:
Mr Boal: And why did you issue that workers' compensation medical certificate at that time?
Dr Zeidan: I received a call from Ms Scofield's solicitor about she can have workers' compensation certificate, and I saw Ms Scofield at the same day and she agreed on this, so I issued the workers' compensation certificate.
- [28]In the file note of 1 May 2018 taken by hD Lawyers, Dr Zeidan said he had no independent recollection of the consultation on 3 April, 2014. Dr Zeidan said that in the request from WorkCover of 18 May 2016 he understood the question to mean "…the first time she ever mentioned anything to me about work, that that was the answer."[5]
- [29]During 2015, the appellant saw Dr Elsa Germain on 23 June, 27 July, 13 August and 17 August. Dr Germain originally diagnosed the appellant with Post Traumatic Stress Disorder. The Commission was told that the diagnosis of PTSD was based on the symptomology presented by the appellant, but after four sessions a psychometric assessment was conducted and it was found that the appellant's severe symptoms had improved since her first consultation. In the report of Dr Germain dated 25 August 2015 under the heading of "Clinical Formulation/Diagnosis" she records:
Yvonne's symptoms are consistent with extremely severe Adjustment Disorder: Mixed Anxiety and Depressive reaction. Her symptoms are exacerbated by her severe communication disability following her experience of a stroke (apparently confirmed by Dr Cameron). It is most likely that the ongoing stress endued by Yvonne over a 10+ month period following her submission of a formal complaint was a major contributor in her neurological condition.[6]
- [30]In cross-examination, Dr Germain told the Commission that she reached the diagnosis of adjustment disorder, mixed anxiety and depressive reactive on 17 August 2015.[7]
Conclusions
- [31]The appellant's case is twofold. First, it is argued that the appellant's entitlement to compensation arose on either 23 June 2015 or 27 July 2015 (that being the first or second date she consulted with Dr Germain). It is also contended that the appellant's entitlement could have arisen on 20 July 2015 (when Dr Zeidan issued the workers' compensation medical certificate). Secondly, and in the alternative, the failure to file the application for compensation was caused by mistake or a reasonable cause.
- [32]In addressing those two halves of the appellant's case it is now appropriate to answer to the questions set out above in [6].
When did the appellant's entitlement to compensation rise?
- [33]Section 141 provides that the time from which compensation is payable arises on the day the worker is assessed by a doctor. For the purposes of the Act, a doctor is defined in Schedule 6 as a registered medical practitioner.
- [34]It is contended by the respondent that the date of assessment for the purposes of s 141(1) is 3 April 2014. This would mean that the application, which was lodged on 3 July 2015, was filed some seven months after the expiry of the statutory time period.
- [35]In Blackwood v Toward, Martin J, President of the Industrial Court, set out the test to be applied when interpreting s 141 of the Act:
- 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.
- 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.[8]
(Emphasis added)
- [36]The appellant submits that the first time the appellant's injury was "assessed" was her first consultation with Dr Germain on 23 June 2015. It was contended that only then did a doctor evaluate, form a conclusion, or express an opinion about the appellant sustaining an injury that arose out of her employment. The difficulty that arises for the appellant is that in order for an assessment to be made for the purposes of s 141(1)(a) it must be undertaken by a doctor. As noted earlier, Schedule 6 of the Act defines "doctor" as a registered medical practitioner. The evidence before the Commission is that Dr Germain is not a registered medical practitioner but rather a clinical psychologist and as such is not able to assess the appellant for the purposes of the Act.
- [37]Notwithstanding that Dr Germain is unable to make an assessment for the purposes of the Act, the appellant's contention that her entitlement for compensation arose on either 23 June 2015 or 27 July 2015 is not supported by the evidence adduced at the hearing. Dr Germain told the Commission that her assessment of the appellant was not made until 17 August 2015. It was only then that she formed the opinion that the appellant was suffering from an adjustment disorder: mixed anxiety and depressive reaction, noting that the submission of a formal complaint about alleged elder abuse was a major contributor in her neurological condition. Fatally for the appellant's case, this assessment took place after the lodgement of the application for workers' compensation on 3 July 2015.
- [38]The appellant also submitted that 20 July 2015 is also a possible date of entitlement (being the date Dr Zeidan issued a workers' compensation medical certificate). It was contended:
The first time Dr Zeidan turned his mind to whether the Appellant had suffered from a workplace injury was when he had a discussion with the Appellant's lawyer and issued the Appellant with a workers' compensation medical certificate on 20 July 2015.
Notwithstanding that contention, the clinical notes of Dr Zeidan for 20 July 2015 do not record any history of a work related injury. Reference is made in the notes to a conversation with the appellant's solicitor, Mr Harry Day. Dr Zeidan records "…he said, according to W comp and the notes she can have certificate from 27/2/2015."[9]
- [39]Dr Zeidan told the Commission:
I received a call from Ms Scofield's solicitor about she can have workers' compensation certificate, and I saw Ms Scofield at the same day and she agreed on this, so I issued the workers' compensation certificate.
- [40]The file note of 9 May 2018 taken by Patrick Pollock records that Dr Zeidan was asked:
Between 3 April 2014 and 20 July 2015, did you at any time assess, as in form an opinion or a conclusion, that Ms Scofield was suffering from a workplace injury?[10]
Dr Zeidan is recorded as replying:
On my reading of the notes, I have not made any recording that suggests to me that, between 3 April 2018 (sic) and 20 July 2015, I assessed Ms Scofield as having an injury that arose from her workplace.
- [41]The approach adopted by Dr Zeidan on 20 July 2015 is at odds with his evidence about his general practice or procedure after he has assessed or formed the opinion that a patient of his has sustained a work-related injury. His evidence was:
The procedure is I issue a WorkCover certificate and also they have to fill another form, you know, with the reception about how the incidents happened and everything in detail, and I'll send it by fax to WorkCover.
- [42]I am of the view that Dr Zeidan issued a workers' compensation medical certificate not because he had formed the opinion that the injury arose out of the employment but rather he did so because he had been asked to issue a workers' compensation certificate by the solicitor for the appellant.
- [43]It was submitted by the appellant that the consultation record of Dr Zeidan is not evidence of an assessment for the purposes of s 141 of the Act. It was argued that Dr Zeidan did not turn his mind to assessing whether the appellant had sustained an injury within the meaning of the Act.
- [44]It was accepted by the respondent that the appellant had a pre-existing underlying psychological condition. The appellant had been receiving treatment for some time and the clinical notes of Dr Zeidan record the history. The evidence is that at the consultation on 3 April, 2014 the appellant was being treated for ongoing depression and anxiety and continued to be prescribed with diazepam.
- [45]I am satisfied that at the consultation on 3 April 2014 Dr Zeidan formed a conclusion or expressed an opinion that the injury arose out of the employment. The clinical notes relevantly record "stress at work" based upon what he had been told by the appellant concerning the reporting of another nurse for elder abuse.[11] The evidence before the Commission, which I accept, was that based on the history given to him, Dr Zeidan made an evaluation that the appellant was suffering from stress at work.[12]
- [46]Consequently, I can only conclude that the appellant's entitlement to compensation arose on 3 April 2014.
Was the application for workers' compensation filed within six months of the date that the appellant's entitlement to compensation arose?
- [47]No. The entitlement to compensation arose on 3 April 2014, but the application for compensation was filed electronically by the appellant's solicitor on 3 July 2015. The application was filed outside of the six month time limit.
If the application for worker's compensation was filed outside of the six month time limit, can the Commission be satisfied that that was because of a mistake or a reasonable cause?
- [48]In determining whether or not to exercise the discretion to waive compliance with s 131(1), I have had regard to the decision of Black v City of South Melbourne where the Full Court of the Supreme Court of Victoria held:
In Akermanis' Case, Sholl, J, held correctly in our view that what has to be shown is that the failure to give the statutory notice within six months was occasioned by mistake or reasonable cause. Delay after that period has expired is irrelevant for this purpose, though it may in some cases be relevant to the question of prejudice, or to the manner in which the court's discretion should be exercised.[13]
The mistake relied upon by the appellant was the belief that the nature and cause of her condition was not as a result of her employment. It was submitted that the appellant was not aware that she had suffered a workplace injury until after the time to bring a claim had expired.
- [49]Also in Black the Full Court of the Supreme Court of Victoria had to consider whether a failure to give the notice required by s 34(1) of the Limitation of Actions Act 1958 (Vic) "was occasioned by mistake or any reasonable cause" within s 34(4)(b). Their Honours wrote the following in respect of mistake:
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 labouring under a misconception as to the law relating to his claim. For, as we have seen, ignorance of the requirements of the section does not constitute a mistake thereunder.[14]
- [50]Black supports the proposition that it is not enough to show that the appellant was mistaken unless that mistake occasioned the failure to give notice – or, the compensation application in this case.
- [51]The appellant said that the harassment by other staff in the workplace intensified after she reported a co-worker for "elder abuse". The main reason for attending on Dr Zeidan on 3 April 2014 was because the appellant was becoming stressed by what was occurring in the workplace; it was harder for her to handle; it was getting to her, and it was on-going. The appellant said that she needed to see Dr Zeidan to get things off her chest. She told Dr Zeidan that she had reported a co-worker for "elder abuse"; that she was being bullied at work; and was being blocked out and not spoken to by co-workers. Dr Zeidan issued the appellant with a medical certificate for time off work. Dr Zeidan's clinical notes record "stress at work" and he accepted that the medical certificate was issued because of stress at work and the need for the appellant to have time off work.
- [52]The evidence before the Commission does not, in my view, support the contention that the appellant was not aware that she had suffered a workplace injury and that that was a mistake occasioning the delay of her application.
- [53]The appellant alternatively relied upon "reasonable cause" to enliven the wavier of s 131. In doing so six grounds are relied upon:
- (a)The appellant had no knowledge of the fact that she had suffered or was suffering from a compensable workplace injury as from 3 April 2014 until approximately June 2015. The appellant's lack of knowledge is reasonable in circumstances where she was not informed by Dr Zeidan that she was suffering from a workplace injury, during the relevant period of time;
- (b)The appellant had a long history of symptoms of anxiety and depression and treatment with Diazepam. The reporting of new workplace stressors to Dr Zeidan and the continued prescription of Diazepam during the relevant time period, would not alert a reasonable person to take steps to determine if they were entitled to Workers' Compensation benefits in circumstances where treatment and medication remain the same (i.e. there was no additional expenses incurred and nothing that could be claimed for).
- (c)The appellant had no history of workers' compensation claims and was not familiar with the WorkCover process or her rights to obtain workers' compensation benefits.
- (d)The appellant has worked as a nurse for her entire working life and had no detailed understanding of the process required for claiming workers' compensation.
- (e)Although the appellant requested a number of days off work from Dr Zeidan on 9 May 2014, the appellant was able to access her sick leave benefits and in circumstances where the appellant was not aware that she was suffering from a compensable workplace injury, it was reasonable for her not to consider the need to apply for workers' compensation benefits at that time;
- (f)It was not until 21 December 2014 that the appellant experienced significant debilitating symptoms of slurred speech and balance problems that prevented her from returning to the workplace. It was not until the report of Dr Bradfield, dated 19 May 2016, that the debilitating symptoms were linked to the appellant's workplace stress. It was reasonable for the appellant not to consider bringing a workers' compensation claim during the relevant period in circumstances where she was able to continue working and had not suffered from debilitating symptoms of slurred speech and balance problems.
- [54]It is necessary in this matter to examine, briefly, the term "reasonable cause." Also in Black their Honours 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.[15]
- [55]In Black their Honours cited the definition of "reasonable cause" provided by Sholl J in Quinlivan v Portland Harbour Trust:
…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.[16]
- [56]The evidence before the Commission does not support in my view a conclusion that the appellant had a reasonable cause for failing to file the application within the six month period.
- [57]The first two bases identified in the statement of facts and contentions have a similar theme. It is contended that the appellant had no knowledge of the fact that she had a compensable workplace injury until sometime in June 2015. The appellant's lack of knowledge, it is argued, was reasonable having regard to the fact that she was not informed by Dr Zeidan that she had an injury. It is not necessary to again rehearse the evidence of the applicant on this issue. It is sufficient to say that the appellant attended on Dr Zeidan because of stress at work. She told the Commission that her consultation with Dr Zeidan on 3 April 2014 was the first occasion she raised with him her work issues at Sunnymeade. Issues which she says were causing her stress. Following the consultation on 9 May 2014 she was issued a medical certificate for time off work "…because of the blood stuff I was getting thrown at me at work."[17] The evidence before the Commission does not support the contention that the appellant was not aware that she was suffering from a workplace injury.
- [58]It was further contended that the reporting of the workplace stressors to Dr Zeidan and the continued prescription of Diazepam "…would not alert a reasonable person to take steps to determine if they were entitled to Workers' Compensation benefits." I disagree for the same reasons as advanced above.
- [59]The arguments raised in subparagraphs (c) and (d) above can be conveniently dealt with together. The evidence does not, in my view, support a conclusion that the appellant was not aware of her right's to obtain workers' compensation. Ignorance of the right to claim compensation or of the time limit within which to make a valid claim does not amount to mistake nor a reasonable cause.[18]
- [60]I do not accept that the appellant was unsophisticated or lacked an understanding of the WorkCover process. In cross-examination, the appellant was asked:
Mr McLeod: Yes. But my question is – I know you got fixed, because you went back to work after having a couple of days off, but my question is, if your back had not have got better, you could have made a workers compensation claim. You knew that because there was a back injury – there was an incident that caused your back to get hurt at that time?
Ms Scofield: Okay. There – okay.
Mr McLeod: No, I know you didn't make a workers' compensation claim, but my question is – and I think you've answered it – that if your back had not got better, you knew at the time you could have made a workers compensation claim?
Ms Scofield: I suppose. Yes, okay.
- [61]In Van Dongen v Northern Territory of Australia the Court of Appeal had to consider a narrow point advanced by the appellant that as he did not suffer a compensable loss by way of expenses or income, it was "impossible" for him to pursue a claim for compensation within the relevant six month period.[19] In those circumstances, for the purposes of s 182(3) of the Work Health Act, it followed that the failure to make a claim was occasioned by "reasonable cause". Riley J after considering the authorities to determine the meaning of “other reasonable cause” for the purposes of the relevant Northern Territory provision and other like legislation wrote:
[29] Mere ignorance of the law alone will not be sufficient. However ignorance of the law when combined with other factors may amount to reasonable cause. For example in Melbourne & Metropolitan Tramways Board v Witton [1963] VicRp 59; [1963] VR 417 the Full Court held that there may be reasonable cause for failure to give notice of an intended action where the proposed plaintiff was ignorant of the requirements of the relevant legislation and was reasonably waiting for her injuries to stabilise before consulting a solicitor and taking proceedings.
…
[30] It is clear that each case must be assessed upon its own facts and circumstances. Contrary to the submission of the appellant the whole of the circumstances of the case as they impact upon the reasonableness or otherwise of the conduct of the worker must be considered in order to determine whether reasonable cause is established. It would be an artificial exercise to do otherwise.[20]
- [62]It was argued that it was not until the appellant developed debilitating symptoms in late December 2014 that a link was established between the onset of those symptoms and her workplace stress. To support the contention in subparagraph (f), the appellant relies on the report of Dr Bradfield of 19 May 2016. Dr Bradfield was not called to give evidence nor was his report admitted into evidence. In short, there is no evidence before the Commission to support the contention.
- [63]The appellant must show that the failure to give the statutory notice within six months was occasioned by mistake or reasonable cause. The appellant has failed to do so. As Scholl J said in Akermanis' Case, delay after that period has expired is irrelevant for this purpose, though it may in some cases be relevant to the question of prejudice, or to the manner in which the court's discretion should be exercised.
- [64]It was submitted that following the appellant's resignation from her employment in October 2014 she was not in a suitable state of mental health to consider her entitlement to workers' compensation benefits. Again there is no direct evidence to suggest that the appellant's medical condition prevented, or impaired her ability to lodge a compensation application within the statutory time period.
- [65]Having considered all the evidence before the Commission I am not satisfied that the appellant has discharged the onus of establishing that the failure to lodge her claim for compensation was occasioned by mistake or that she had a reasonable cause for not doing so as required by s 131(5) of the Act.
- [66]There has been no act or omission, to adopt to the approach in Black identified by the appellant which prevented her from lodging the claim for compensation. 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.
- [67]I am satisfied that for the purposes of s 141(1)(a) of the Act, Dr Zeidan assessed the appellant as sustaining a workplace injury on 3 April 2014 and the appellant's entitlement to compensation arose on that date. By operation of s 131 of the Act, the appellant's application for compensation should have been lodged by 3 October 2014 in order to come within the statutory timeframe to be valid and enforceable. It was not lodged until 3 July 2015. The evidence before the Commission does not support a conclusion that the appellant's failure to lodge the application for compensation was due to mistake or a reasonable cause. Accordingly, there is no basis upon which the Commission can exercise its discretion to waive compliance with s 131(1) of the Act.
- [68]For the reasons set out above the appeal is dismissed, the decision of the Regulator dated 10 June 2016 is affirmed, and the appellant is to pay the respondent's cost of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
Orders
- [69]I make the following orders:
- The appeal is dismissed.
- The decision of the respondent dated 10 June 2016 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 this Commission.
Footnotes
[1] Page 6, para 39–40.
[2] File Note.
[3] Exhibit 3, page 000081.
[4] T1-33 Ll.32-34.
[5] T1-32 Ll.39-41.
[6] Exhibit 4.
[7] T1-29 Ll.36-38.
[8] [2015] ICQ 008.
[9] Exhibit.
[10] Exhibit 6.
[11] T1-37 Ll.10-13.
[12] T1-37 Ll.15-18.
[13] (1963) VR 34.
[14] Black v City of South Melbourne [1963] VR 34.
[15] [1963] VR 34.
[16] (1963) VR 25 at 28.
[17] T1-8 L.41.
[18] Black v City of South Melbourne (1963) VR 34, at 36.
[19] Van Dongen v Northern Territory of Australia [2005] NTCA 6.
[20] Ibid [29] – [30].