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Green v Workers' Compensation Regulator[2018] QIRC 18

Green v Workers' Compensation Regulator[2018] QIRC 18

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Green v Workers' Compensation Regulator [2018] QIRC 018

PARTIES:

Green, Norman

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NOs:

WC/2016/192 and WC/2016/195

PROCEEDING:

Appeals against decisions of the Workers' Compensation Regulator

DELIVERED ON:

1 March 2018

HEARING DATES:

6 June 2017

13 July 2017

19 February 2018

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Thompson

ORDERS:

  1. The appeals are dismissed.
  2. The decisions of the Regulator dated 19 September 2016 are confirmed.
  3. The matter of costs is reserved.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Decision of Workers' Compensation Regulator – Appellant bears onus of proof – Standard of proof – Balance of probabilities – Witness evidence – Time for applying – Diagnosis – Asbestos disease – Legislative requirements – Reasonable cause – Failed to lodge claims for compensation within the six month statutory period – Appeals dismissed – Decisions of Regulator confirmed – Matter of costs reserved.

CASES:

Workers' Compensation and Rehabilitation Act 2003 s 32, s 36, s 131, s 548, s 549, s 550, Schedule 6

Quinlivan v Portland Harbour Trust [1963] VR 25

Black v City of South Melbourne [1963] VR 34

State of Queensland (State Library of Queensland) v Simon Blackwood [2014] QIRC 126

Armstrong v Local Government Workcare [2014] ICQ 7

Blackwood v Toward [2015] ICQ 8

ANZ Banking Group v Q-COMP [2004] QIC 21

NF v State of Queensland [2005] QCA 110

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

Polar Aviation Pty Ltd v Civil Aviation Authority (No 2) [2010] FCA 404

Cook v Q-COMP (2008) QGIG 220

APPEARANCES:

Mr G. Diehm, QC instructed by Mr M. Rogalski of Slater Gordon Lawyers for the Appellant.

Mr S. McLeod, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

  1. [1]
    A notice of appeal was lodged with the Industrial Registrar on 12 October 2016 by Norman Green (Green) pursuant to ss 548A(1) and 549 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against decisions of the Workers' Compensation Regulator (Regulator) dated 19 September 2016 (WC/2016/192).
  2. [2]
    The decision of the Regulator was to confirm the decision of WorkCover Queensland (WorkCover) not to waive the time for applying in accordance with s 131 of the Act.
  3. [3]
    A notice of appeal was lodged with the Industrial Registrar on 12 October 2016 by Green pursuant to ss 548A(1) and 549 of the Act against a decision of the Regulator dated 19 September 2016 (WC/2016/195).
  4. [4]
    The decision of the Regulator was to confirm the decision of WorkCover not to waive the time for applying in accordance with s 131 of the Act.
  5. [5]
    In terms of progressing both appeals conjointly the Commission with the agreement of the parties on 13 July 2017 determined that both appeals be heard simultaneously.

Relevant Legislation

  1. [6]
    The legislation pertinent to this appeal are the provisions s 131 of the Act:

"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."

Nature of Appeals

  1. [7]
    The appeals to the Commission are by way of a hearing de novo in which the onus of proof falls upon the appellant.

Standard of Proof

  1. [8]
    The standard of proof upon which appeals of this nature must be determined is that of "on the balance of probabilities".

Evidence

  1. [9]
    In the course of the proceedings, evidence was provided by two witnesses.

Witness List

  1. [10]
    The witnesses for the appellant were:
  • Green; and
  • Christine Green (Christine Green).
  1. [11]
    The Regulator did not call any witness evidence.
  2. [12]
    The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety. 

Agreed Statement of Facts

  1. [13]
    The following agreed statement of facts was executed by the parties and lodged with the Industrial Registrar on 12 October 2017:

"The Appellant and Respondent agree on the following statement of facts:-

  1. The Appellant was diagnosed with asbestos related pleural plaques in April 2004 after he underwent radiological investigations.
  1. The Appellant was made aware of his diagnosis with asbestos related pleural plaques in or about April 2004 after he received the results from the radiological investigations.
  1. The Appellant was diagnosed with asbestosis in July 2009.
  1. The Appellant was made aware of his diagnosis of asbestosis in July 2009."

Appellant

  1. [14]
    On 6 June 2017 a mention of both appeals was held in Brisbane where the appellant's solicitor informed the Commission that his client's health was in a deteriorating state and whilst he had continued to reside at his principle place of residence he was from time to time in receipt of visits from a palliative care team.
  2. [15]
    The appellant's health was of a nature that would prevent him from travelling from Ropes Crossing in New South Wales (NSW) to give his evidence before the Commission in Brisbane and it was the subject of an agreement between the parties that arrangements be made for such evidence to be given by video link.
  3. [16]
    A facility was arranged by the Industrial Registrar for evidence to be given by the appellant on 13 July 2017 by way of video link.

Green

  1. [17]
    On 13 July 2017 two statutory declarations sworn by Green on 27 January 2016 and 18 March 2016 were tendered in the proceeding as was a statement (dated 1 May 2017) from Green.  The content of these three documents formed his evidence‑in-chief.

27 January 2016 - Statutory Declaration

  1. [18]
    Green was born in Queensland in 1931 where he attended primary school, subsequently leaving school in 1944 aged 13 years.  He gave evidence around his employment history for the period 1945 until his retirement in 1996.  The employment history included references to a range of roles all involving manual labour, with only two of the roles placing him in areas where he was exposed to asbestos dust and fibres.  Those being:
  • Wunderlich Pty Ltd (Wunderlich) - Gaythorne Queensland - 12 April 1948 to 8 October 1948; and
  • James Hardie Pty Ltd (Hardie) - Newstead Queensland - 1949 - three months' employment.
  1. [19]
    The exposure at Wunderlich was on a daily basis where it was not uncommon to work 48 hour weeks during the period of his employment.  Green described his direct exposure to asbestos through his role as a general labourer where at times he handled asbestos and was required to "sweep up" asbestos dust.  In the course of his employment he was not provided with work uniforms or masks.
  2. [20]
    In his time at Hardies he was employed as a general hand which required him to sweep and clean asbestos dust and debris off the factory floor.  No mask was provided for the duration of the employment nor was any advice given in respect of breathing in asbestos dust and fibres.
  3. [21]
    Green acknowledged a history of cigarette smoking from 1951 until "quitting" in 1994.  Initially he was a heavy smoker at which time he would smoke two packets of cigarettes a day which decreased over time to a packet a day or less.
  4. [22]
    Green claimed to have suffered from the side effects of an asbestos related disease for many years starting with a persistent cough that commenced about eight years ago and he was now at the point where he required home oxygen.  A lung function test was performed recently by a respiratory physician who advised of a marked decline in his breathing from the previous year.
  5. [23]
    Green married his second wife in 1996 who currently works part-time at the Nepean Hospital.  He described his "housing history" as living in Queensland from 1931 until 1964 with the remainder of his time in NSW.

16 March 2016 - Statutory Declaration

  1. [24]
    A number of medical investigations, treatment and diagnosis associated with the asbestos disease had occurred over many years in NSW.  In or about May 2010 he lodged an application for compensation with the Dust Disease Board (DDB) of NSW which was formally rejected in correspondence (dated 10 September 2010) where it stated:

"Consequently, it is not possible to compensate you for this condition."

The reason the application was made in the first place was as a result of a conversation between his wife and the mother of his son-in-law who told them to lodge a claim.  Prior to this conversation he was never aware he could claim compensation for an asbestos disease.

  1. [25]
    In late August 2015 his wife became engaged in a conversation with a lady in Dicky Beach Queensland and was informed that the lady's husband had been diagnosed with asbestos some time ago and had claimed compensation in Queensland.  Upon hearing this news they contacted Slater and Gordon Lawyers on 6 October 2015 subsequently signing a WorkCover Claim Form on 19 October 2015 which was promptly lodged with WorkCover.
  2. [26]
    Prior to contacting Slater and Gordon he was not aware that he could claim compensation in Queensland for his asbestos disease.

1 May 2017 - Statement

  1. [27]
    Green gave specific evidence around his education history which included:
  • had missed a lot of schooling as a child due to family circumstances;
  • did not attend school at all required times;
  • parents provided no personal education in the home;
  • fell behind at school due to poor teacher staff ratios; and
  • left school without any qualification.
  1. [28]
    Evidence was also given in respect of his hobbies and interests including making visits to the Sunshine Coast in Queensland once or twice a year for the past 25 years to visit his brothers.
  2. [29]
    In terms of workers' compensation he had never made a claim for compensation whilst employed and the first he know about asbestos compensation was when he read and heard about Bernie Banton (Banton) fighting to get compensation.  At the time he lodged the application with the DDB he did not think he had an entitlement to lodge a claim for compensation because he had stopped working.  The claim was lodged without Green having obtained any advice and further no legal advice was sought after he was advised his claim had been rejected.  The DDB had not contacted him beyond the rejection letter and he was not told at any stage he could bring a claim in Queensland.
  3. [30]
    In the period 2002 to 2004 he underwent a number of tests initiated by his general practitioner as a response to chest pain and infection and he only found in passing in 2010 that he had pleural thickening.  In or about 2010 he first consulted Dr Underwood who in 2013 informed him he was suffering from asbestosis and he would need oxygen in the future.  Dr Underwood had not mentioned to him that he could make a claim for the disease or that he should contact a lawyer.
  4. [31]
    Under cross-examination Green gave evidence in respect of his wife's employment as a legal support officer in the psychiatric unit at the Nepean Hospital where her role included sending information to a magistrate for the purposes of discharging a patient.  His wife was also a qualified Justice of the Peace [Transcript p. 2-7].  On the lodgement of his application to the DDB he recalled being told if you had worked with asbestos and there could be a problem you went to the DDB.  At the time he was aware of a campaign being undertaken by Banton against James Hardie for compensation for an asbestos condition but he was not after compensation but worried about his trouble breathing getting worse [Transcript p. 2-8].  Upon rejection of the claim he had done nothing further or was told to get legal advice and it was only when visiting his brother in Queensland that his wife had a discussion with a woman whose husband had similar problems that they found out about putting in a claim in Queensland [Transcript p. 2-8].  Green accepted that if the DDB application had been successful he may have got some compensation to help with his expenses [Transcript p. 2-9].
  5. [32]
    Green when shown a copy of the letter from the DDB (dated 10 September 2010) in the proceeding indicating he had never seen the letter before because his wife "looks after the mail and everything" [Transcript p. 2-11].  On the fact that the said letter was mentioned and attached to his statutory declaration of 18 March 2016 the evidence was that his wife does all the paperwork and at some time she had told him the claim was rejected [Transcript p. 2-11].  She had told him the reason for rejection was that he had come from and worked in Queensland [Transcript p. 2-12].  Green had never read any of the medical reports regarding his medical condition as he was not interested in reports and that his wife as his carer would look after the reports [Transcript p. 2-23].  He recalled being told by Dr Underwood some time in 2013 that he was suffering from asbestosis and there had been other doctors prior to that time who had also mentioned the same thing to him [Transcript p. 2-24].

Christine Green

  1. [33]
    Christine Green the wife of the appellant gave evidence regarding her knowledge of her husband's medical treatment and investigations over the years and in particular being advised in early 2004 about an asbestos disease on his lungs when he had a bout of pneumonia.  The plural plaque diagnosis at the time was made without any advice about what may have caused the symptoms.
  2. [34]
    At some stage in early 2010 after discussions with her son's mother-in-law she decided it may be a good idea to lodge a claim with the DDB to seek some medical expenses for her husband's asbestos disease.  On or about 9 May 2010 she completed a claim form on behalf of her husband and after he signed it the form was lodged.  Christine Green had always been responsible for all of his paperwork and administration type tasks.  Whilst she had marked that her husband had asbestosis she did not at the time have a full appreciation of what asbestosis was, thinking that it was a word thrown around in the medical world.  At the time of these proceedings she did not really understand the differences between asbestosis and other asbestos conditions such as pleural plaques.  The claim was rejected by the DDB on the basis of her husband not suffering a dust disease and there had not been sufficient exposure to cause his condition.
  3. [35]
    As a result of Green's breathing problems she accompanied him to medical examinations over a period of years following the rejection of the DDB claim where the explanations provided by the various doctors were quite complicated and difficult for both of them to understand.
  4. [36]
    It was not until late August 2015 that she found out there may have been another type of claim available for her husband following a conversation with a woman at a bingo club who had told her about her husband completing a WorkCover claim.  It was after that conversation contact had been made with their legal representatives.

Submissions

  1. [37]
    The parties provided written submissions which were addressed orally in the course of the proceedings.

Appellant

Introduction

  1. [38]
    It was common ground between the parties on the basis that the issue to be resolved was whether the appellant had established a ground for waiving the time limit provided by s 131(1) of the Act by virtue of subsection (5) and if so whether in the exercise of discretion he should have that discretion.
  2. [39]
    The parties had conducted the appeal that compensation had been sought separately for two injuries being pleural plaques and the asbestosis.  It was common ground that the relevant dates from which the six month period for lodging an application were:
  • pleural plaques - October 2004; and
  • asbestosis - January 2010.
  1. [40]
    The applications for compensation were lodged on 22 October 2015.

The Law

  1. [41]
    Section 131(5) of the Act states:

"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. [42]
    The appellant relied upon the "reasonable cause" ground maintaining that his absence from the State since 1964 was not a relevant matter to both questions as to whether he had made out reasonable cause.  Other circumstances prevented him from lodging the claims within the six month periods that caused him not to be thinking in terms of his rights, regardless of jurisdiction.
  2. [43]
    It was recognised that the process under s 131(5) of the Act is a two-step process in that:
  • it must be determined whether or not one of the three grounds were a ground for waiving the time limit; and
  • if the ground was made out should a discretion be exercised.
  1. [44]
    Authorities cited regarding a reasonable cause were:
  • Quinlivan v Portland Harbour Trust[1];
  • Black v City of South Melbourne[2]; and
  • State of Queensland (State Library of Queensland) v Simon Blackwood[3].
  1. [45]
    Particular emphasis is placed by the appellant on the question of reasonableness from the point of view of the appellant.

Discussion

  1. [46]
    The appellant was a man of very limited education having worked all his life in low skilled manual occupations.  He had been diagnosed with plural plaques at the age of 73 years and was approaching 78 years when diagnosed with asbestosis.  He was in 2004 and 2009 and all times between and since dependent upon his wife as his carer to attend medical appointments with him and to receive medical documentation.  That said his wife had her own limitations in her understanding of relevant matters.  Other matters of relevance included:
  • retired from all employment in 1996;
  • had never applied for workers' compensation but was aware that compensation was available for persons injured at work;
  • believed that workers' compensation was not available to him as he had retired;
  • had lived in NSW since 1964 and was unfamiliar with the Queensland compensation system;
  • the diagnosis of pleural plaques was made incidental to him suffering a chest infection.  He was not suffering any significant symptoms within the six month period; and
  • with the appellant's lack of knowledge about the availability of compensation and lack of any particular need at the time for compensation it was unremarkable he did not identify a reason to make an application for compensation.
  1. [47]
    This case is not a question of finding reasonable cause because of ignorance of rights but of finding reasonable cause because of the reasons why he remained ignorant of his rights.  Those reasons were multifactorial in that he was:
  • an elderly man with very limited education;
  • unsophisticated; and
  • with little exposure directly or indirectly to anything that may have resulted in him being aware.
  1. [48]
    The DDB in the rejection of his application in September 2010 noted the presence of "lung fibrosis" going on to state:

"However, it would appear from your employment history that your asbestosis exposure seems insufficient to enable attribution.  Therefore it is the Authority's opinion that this condition is not related to your dust exposure."

The DDB further stated:

"Furthermore, it would appear from your work history that you never had any asbestos exposure whilst a worker under the Act in New South Wales."

This particular reference was said to be inconsequential.

  1. [49]
    The appellant's wife who is considerably younger than her husband with her recollection of her thoughts of the DDB rejection letter was unsurprising given the content of the letter.  The position of the appellant to do nothing to pursue an application for compensation in Queensland in all of the circumstances was perfectly understandable.
  2. [50]
    The delay was "very long" but this is an unusual case because of the circumstances of his application to the DDB and the unfortunate situation where that authority had not suggested to the appellant that he might consider inquiring what his rights might have been in Queensland.
  3. [51]
    Given the circumstances and the absence of prejudice this is an appropriate case for the exercise of discretion.
  4. [52]
    In the oral phase of the submission there was an emphasis on the content of authorities cited in the proceedings that included:
  • NF v State of Queensland[4];
  • Black v City of South Melbourne[5]; and
  • Augustynski v Simon Blackwood (Workers' Compensation Regulator)[6].
  1. [53]
    Further issues expanded upon included:
  • reasonable cause;
  • discretion to be exercised;
  • Green's degree of sophistication and lack of understanding as to his rights; and
  • Green's symptoms at the relevant time.
  1. [54]
    In respect of the DDB decision to reject the claim for compensation there was a level of criticism regarding the content of the letter and the impact it had upon the Green's not taking any further action at that time to pursue another claim.  The DBB had:
  • informed Green there was no connection between the asbestos exposure and his condition;
  • noted all the exposure had been in Queensland; and
  • the author of the correspondence failed to point them towards making an application in Queensland which effectively "shut down" the Greens.
  1. [55]
    On the issue of prejudice it was a relevant consideration for the Commission in the exercise of discretion whereby prejudice to those who might be affected by the exercise of discretion is the dominant consideration.  Counsel was unable to point to an authority that directly supported the proposition posed in respect of prejudice being a relevant consideration other than it had been considered by Neate C in Augustynski v Simon Blackwood (Workers' Compensation Regulator)[7].

Regulator

  1. [56]
    Upon the lodgement of applications for compensation (dated 19 October 2015) for an alleged injuries sustained as a result of asbestos exposure during the appellant's employment in Queensland from 1945 to 1964 WorkCover determined that the appellant had failed to lodge applications for compensation in accordance with s 131 of the Act and circumstances did not exist for the time for applying to be waived under s 131(5) of the Act. 

Asbestosis Injury

  1. [57]
    The appellant was diagnosed with asbestosis and made aware of the diagnosis in July 2009.  The Act at ss 32 and 36A deals with the definition of injury and latent onset injures with "latent onset disease" defined in Schedule 6 of the Act as an "insidious disease".
  2. [58]
    In Armstrong v Local Government Workcare[8], Martin P observed that whilst the phrase "insidious disease" was not defined in the Act it can be taken to mean a disease which develops gradually and imperceptibly.  Relevantly at s 36A(4) of the Act the date of diagnosis is taken to be the date on which the injury was sustained.  Accordingly in this case the date the injury was sustained was July 2009.

Pleural Plaques and Thickening Injury

  1. [59]
    The appellant was made aware that he had asbestos related pleural plaques in about April 2004 accordingly his entitlement to compensation arose in or about April 2004 (see Blackwood v Toward[9]).  Section 36A of the Act is not applicable to this injury because the section came into operation after the appellant was diagnosed/assessed in respect of the stated condition.
  2. [60]
    Section 131 of the Act is relevant and applicable for both injury applications.

Green's Evidence

  1. [61]
    In the course of the appellant's evidence he confirmed that in May 2010 he had lodged an application with the DDB based upon advice given to his wife by his son's mother‑in‑law.  Prior to his wife telling him about the conversation he was not aware he could claim compensation for asbestos disease.  In cross-examination he agreed with the proposition that he might have been able to get compensation from DDB as a result of having seen Banton on television.  In his evidence however he had stated that he had lodged the application because he was told his breathing was only going to get worse and that the DDB "would pay for some of the expenses that we lodged".
  2. [62]
    The DDB in the letter (dated 10 September 2010) had advised the appellant his application for compensation had been rejected with one of the reasons being identified as:

"…it would appear from your work history that you never had any asbestos exposure whilst a worker under the Act in New South Wales.  Consequently, it is not possible to compensate you for this condition."

The appellant claimed to have seen this correspondence for the first time when being cross-examined and that his wife was "more or less like a secretary and carer, and she does all of the paperwork".

  1. [63]
    The appellant recalled his wife telling him that the DDB had rejected his claim because he was from Queensland and he had worked there.  It would seem he formed the view that he had no further entitlement or the rights to bring a claim in Queensland.

Christine Green's Evidence

  1. [64]
    The appellant's application for compensation to the DDB was completed by Christine Green as she was responsible for all his paperwork and after the rejection of the claim they did not do anything and just forgot about it.  She had formed the view that there was no other type of claim that could be brought and it was not until a discussion in late August 2015 with a lady in Dicky Beach that she found there may have been another claim available.

Submissions

  1. [65]
    A claim for compensation is valid and enforceable only if the time limit in s 131 of the Act is met as Hall P observed in ANZ Banking Group v Q-COMP[10] where he stated:

"…non-compliance with the six month time limit…is a matter of some gravity."

  1. [66]
    The Act at s 131(5) provides that an insurer may waive the time limit for a particular application if satisfied the claimant's failure to lodge the application within the six months was due to:
  • a mistake;
  • absence from Queensland; or
  • a reasonable cause.

The appellant bears the onus to satisfy the Commission that s 131(5) can be satisfied - see Augustynski v Simon Blackwood (Workers' Compensation Regulator)[11].

  1. [67]
    In this matter it is assumed the appellant does not rely upon mistake of which a lack of knowledge of a time limit to lodge an application for compensation does not constitute a mistake within the meaning of s 131(5)(a) of the Act.  It is further assumed the appellant's absence from the State is not advanced as a ground but rather the appellant's case is one of a "reasonable cause" for not complying with the six month time limit.
  2. [68]
    The respective notices of appeal did not provide particulars of "reasonable cause" however Schedule 2 of the notices state that the appellant's submissions made to the Regulator on review are relied upon.  It was asserted that the appellant was not aware of his ability to claim compensation from WorkCover even after his application with the DDB.
  3. [69]
    The phase "reasonable clause" was considered by the Victorian Full Court in Black v City of South Melbourne[12] whereby it was observed:

"The expression 'reasonable clause' appears to as 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".

  1. [70]
    Other authorities cited included:
  • Quinlivan v Portland Harbour Trust[13]; and
  • Polar Aviation Pty Ltd v Civil Aviation Authority (No 2)[14].
  1. [71]
    The appellant and his wife until late August 2015 were unaware of the compensation claim process in Queensland however ignorance of the right to claim compensation does not amount to reasonable cause - see Black v City of South Melbourne[15] and Augustynski v Simon Blackwood (Workers' Compensation Regulator)[16].  Further the evidence reveals that the appellant "just forgot about it" after receiving the adverse outcome from the DDB in September 2010.  There is no evidence that the appellant or his wife had done anything between September 2010 and August 2015.
  2. [72]
    The appellant had failed to persuade the Commission that he had a "reasonable cause" under s 131(5)(c) of the Act therefore each of the appeals should be dismissed with costs.
  3. [73]
    On the submission on behalf of the appellant that the Greens had been misled by the contents of the DDB rejection letter, it was accepted that Green was a man of limited education however with respect Christine Green does not fall within that position.  The DDB decision was not misleading in any manner or form.
  4. [74]
    Following the rejection of the claim by the DDB his medical condition was getting worse and the evidence was he did not seek at that time to make a claim or make further inquiries in another jurisdiction such as Queensland where the great bulk of exposure occurred.
  5. [75]
    The Regulator accepted the decision in NF v State of Queensland[17] that the focus must be on the future to understand at the relevant time the requirements for the consideration of reasonable cause however in this case the only explanation was "well, we forgot about it before any action is taken many, many years later".  That cannot be reasonable cause to sit on your hands when you make an application to a board that is rejected and not look to another jurisdiction for compensation particularly when the work history effectively identified that the exposure to asbestos did not occur in NSW.
  6. [76]
    On the matter of prejudice the Regulator had been unable to find any authorities as it related to reasonable cause.  The authorities on reasonable cause seem to focus on what the individual worker thought or did or did not do at the time.

Conclusion

  1. [77]
    There are two separate appeals subject of determination by the Commission with each of the appeals subject to a level of commonality in that the outcomes sought are the same and the reasoning relied upon for each appeal was also the same in nature.

Background

  1. [78]
    The statement of agreed facts acknowledged that the appellant was made aware of a diagnosis of asbestos related plural plaques in April 2004 and diagnosed with asbestosis in July 2009.
  2. [79]
    In the absence of specific dates for each diagnosis I am inclined to err on the side of caution and commence the enlivening of the six month time period from 30 April 2004 and 31 July 2009 respectively, ceasing on:
  • 1 November 2004; and
  • 1 February 2010.
  1. [80]
    Neither application for compensation (on the above dates) met the time limit provisions of s 131 of the Act.
  2. [81]
    In May 2010 (a date beyond the end of the six month limit of s 131 of the Act) the appellant lodged a claim with the DDB in NSW that was subsequently rejected in September 2010.
  3. [82]
    The evidence is uncontested that Christine Green was the instigator of that claim firstly through sourcing information from her son's mother-in-law and then the completion of the application form requiring only her husband to add his signature prior to the lodgement of the claim.
  4. [83]
    Green it is accepted was a person of limited education who spent his working life in manual labouring occupations and relied heavily upon his wife to manage his life in respect of administrative type issues as well as act as his carer.  In terms of what might be described as an "unsophisticated" person Green would fit in my view comfortably into such a category of person.
  5. [84]
    Green gave the only evidence with regards to Christine Green's employment situation describing her as a legal support officer in the psychiatric unit at the Nepean Hospital in NSW which required amongst her other duties an interaction with magistrates relating to the discharge of patients from the psychiatric unit.  Christine Green whose evidence was given seven months after her husband's chose not to seek to correct or challenge her husband's evidence on her employment situation.  Christine Green was also according to her husband a qualified Justice of the Peace which had not been challenged by her in terms of correctness or otherwise.  Christine Green on the limited evidence available is less likely to fall into the category of an "unsophisticated" person.
  6. [85]
    In August 2015 it was again Christine Green who obtained information about the option of lodging another claim, this time with WorkCover in Queensland and it was Christine Green who arranged legal representation to process that application.

Legislative Requirements

  1. [86]
    Section 131(1) of the Act states on the time for applying for compensation:

"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. [87]
    The appellant in respect of both applications was around 11 years and 5.5 years respectively outside of the abovementioned time limit.
  2. [88]
    If an application had not been lodged within the six month period after an entitlement to compensation arises there are provisions at s 131(5) of the Act where the time for applying can be waived providing grounds exist in respect of the following criteria:

"(a) mistake; or

  1. (b)
    the claimant's absence from the State; or
  1. (c)
    a reasonable cause."
  1. [89]
    In terms of the two appeals to be decided no argument was pressed with regards to a mistake or absence from the State to support a waiving of the time for applying but a reliance that grounds existed by way of "reasonable cause".

Reasonable Cause

  1. [90]
    In the matter of Cook v Q-COMP[18] it was observed by Linnane VP:

"As Sholl J stated in Quinlivan v Portland Harbour Trust [1963] VR 25 at p. 28 a 'reasonable cause' is one:

'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.'."

  1. [91]
    In Black v City of South Melbourne[19] it was stated:

"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 an act or omission which was in the circumstances reasonable."

Further it was stated:

"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."

  1. [92]
    The appellant's first diagnosis of an asbestos related condition was in April 2004 when it was found that he had the condition of pleural plaques.  There was no application lodged with WorkCover or any other authority for compensation in the six month time period pursuant to s 131 of the Act nor was there any evidence of any enquiry having been made by the appellant or on his behalf around the issue of an entitlement to claim compensation.
  2. [93]
    The second diagnosis relating this time to the condition of asbestosis was made in July 2009 and as was the case in terms of the first diagnosis there was no evidence of any application being lodged for compensation in the relevant time period or of any enquiry having been made by the appellant or on his behalf of an entitlement to claim compensation.
  3. [94]
    Green's evidence in the proceedings about his knowledge at the relevant times regarding compensation was contained in his statement (dated 1 May 2017) where he stated at paragraph 22:

"All I know of asbestos related compensation payments I read and heard in the news when Bernie Banton was fighting to get compensation.  I did not have any knowledge besides that.  I did not really understand who he was fighting and how."

  1. [95]
    In the course of cross-examination he gave further evidence in regards to his knowledge of Banton's activities:

"Well, only because we watched Bernie on TV.  He was - he had his oxygen mask on and everything.  And I thought he was there to help people out who ever worked for - in asbestos." [Transcript p. 2-8]

  1. [96]
    It is a matter of public record that Banton gained a degree of public exposure throughout Australia as a campaigner around asbestos-related conditions/illnesses and often appeared on television with an oxygen tank by his side.  It is also on the public record that Banton died on 27 November 2007.
  2. [97]
    The level of importance that can be attached to Banton's death on 27 November 2007 is that Green's knowledge about his activities in respect of asbestos related conditions was obtained well before the diagnosis of asbestosis in 2009 and it was reasonable to expect that in respect of the 2009 appeal he was aware that compensation for conditions such as that diagnosed was in the mix.
  3. [98]
    In a consideration of the reasonable cause argument the authorities particularly in Quinlivan v Portland Harbour Trust[20] defer to a reasonable standard of conduct by the person whom had failed to give the notice within the statutory time period.  If the conduct of Green was to be accepted in isolation his level of education, employment history, age and overall health would likely be considered as factors in respect of whether an act or omission that may have prevented the appropriate notice being given to enliven the applications for compensation.
  4. [99]
    The evidence however before the proceedings confirmed that Green had abrogated all of those responsibilities regarding any and all administrative processes in his life at the relevant times to his wife which was confirmed in Christine Green's statement tendered in the proceeding where she stated at paragraph 11:

"While Norm signed the form it was me that completed the form for him because I have always been responsible for all of Norm's paperwork and administration type tasks."

  1. [100]
    Christine Green's statement at paragraph 11 was in reference to an application lodged with the DDB in May 2010 that was subsequently rejected.  In regards to the September 2010 letter Green claimed to have not sighted the claim rejection letter until giving evidence in these proceedings in July 2017 whilst Christine Green had found the reasoning contained in the letter that her husband's exposure was not sufficient to cause his condition, somewhat confusing to her because she thought he had an asbestos condition.
  2. [101]
    For completeness the evidence of Christine Green was that she attended all medical examinations with her husband for support and to explain things to him as he never fully understood all the advice he received from the treating doctors.
  3. [102]
    To apply the test in Quinlivan v Portland Harbour Trust[21] as to the conduct of Christine Green it would be difficult to find her to be a person that could be described as "unsophisticated" as she held employment as a legal support officer at the Nepean Hospital that required her to provide material to magistrates for patients being discharged from the psychiatric unit in addition to being a qualified Justice of the Peace.

Finding

  1. [103]
    On consideration of the evidence, material and submissions before the proceedings it had not been established to the requisite standard of proof that the appellant through his wife Christine Green failed to lodge claims for compensation within the six month statutory period for lodging such claims due to reasonable cause that may have led to an act or omission operating to prevent meeting the timelines.
  2. [104]
    In consideration of the reasonableness of Christine Green's conduct I am drawn to the observations of Keane JA in NF v State of Queensland[22]:

"The person is expected then to take steps to see whether there is a worthwhile right of action, and the question is whether he or she could reasonably be expected to take a certain step, which if taken, would reveal the decisive fact.  The reasonableness of the step is assessed by asking whether a person who was or should have been investigating the prospects of a successful action, should have taken that step."

  1. [105]
    This is exactly what Christine Green had done in respect of her conduct in 2010 and 2015 leaving little doubt of her capacity to instigate applications for compensation albeit in the circumstances significantly outside the statutory time limitations.  Christine Green had the capacity to make the applications within the time periods contained in s 131 of the Act.
  2. [106]
    On finding that no reasonable cause existed with regards to the failure to lodge the applications within the time frames it is not necessary to give consideration to the exercise of a discretion.
  3. [107]
    The appeals are dismissed.
  4. [108]
    The decisions of the Regulator dated 19 September 2016 are confirmed.
  5. [109]
    The matter of costs is reserved.
  6. [110]
    I so order.

Footnotes

[1] Quinlivan v Portland Harbour Trust [1963] VR 25

[2] Black v City of South Melbourne [1963] VR 34

[3] State of Queensland (State Library of Queensland) v Simon Blackwood [2014] QIRC 126

[4] NF v State of Queensland [2005] QCA 110

[5] Black v City of South Melbourne [1963] VR 34

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

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

[8] Armstrong v Local Government Workcare [2014] ICQ 7

[9] Blackwood v Toward [2015] ICQ 8

[10] ANZ Banking Group v Q-COMP [2004] QIC 21

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

[12] Black v City of South Melbourne [1963] VR 34

[13] Quinlivan v Portland Harbour Trust [1963] VR 25

[14] Polar Aviation Pty Ltd v Civil Aviation Authority (No 2) [2010] FCA 404

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

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

[17] NF v State of Queensland [2005] QCA 110

[18] Cook v Q-COMP (2008) QGIG 220

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

[20] Quinlivan v Portland Harbour Trust [1963] VR 25

[21] Quinlivan v Portland Harbour Trust [1963] VR 25

[22] NF v State of Queensland [2005] QCA 110

Close

Editorial Notes

  • Published Case Name:

    Green v Workers' Compensation Regulator

  • Shortened Case Name:

    Green v Workers' Compensation Regulator

  • MNC:

    [2018] QIRC 18

  • Court:

    QIRC

  • Judge(s):

    Member Thompson IC

  • Date:

    01 Mar 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Armstrong v Local Government Workcare [2014] ICQ 7
2 citations
Jump To
Cite 1 - [2014] ICQ 7
Cite 2 - [2014] ICQ 7
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
Banking Group v Q-COMP [2004] QIC 21
2 citations
Jump To
Cite 1 - [2004] QIC 21
Cite 2 - [2004] QIC 21
Black v City of South Melbourne (1963) VR 34
6 citations
Jump To
Cite 1 - (1963) VR 34
Cite 2 - (1963) VR 34
Cite 3 - (1963) VR 34
Cite 4 - (1963) VR 34
Cite 5 - (1963) VR 34
Cite 6 - (1963) VR 34
Cook v Q-COMP (2008) QGIG 220
2 citations
Jump To
Cite 1 - (2008) QGIG 220
Cite 2 - (2008) QGIG 220
NF v State of Queensland [2005] QCA 110
4 citations
Jump To
Cite 1 - [2005] QCA 110
Cite 2 - [2005] QCA 110
Cite 3 - [2005] QCA 110
Cite 4 - [2005] QCA 110
Polar Aviation Pty Ltd v Civil Aviation Authority (No 2) [2010] FCA 404
2 citations
Jump To
Cite 1 - [2010] FCA 404
Cite 2 - [2010] FCA 404
Quinlivan v Portland Harbour Trust (1963) VR 25
6 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
Cite 6 - (1963) VR 25
State of Queensland (State Library of Queensland) v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 126
2 citations
Jump To
Cite 1 - [2014] QIRC 126
Cite 2 - [2014] QIRC 126
Workers' Compensation Regulator v Toward [2015] ICQ 8
2 citations
Jump To
Cite 1 - [2015] ICQ 8
Cite 2 - [2015] ICQ 8

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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