Toombs v Workers' Compensation Regulator
[2018] QIRC 77
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- Toombs v Workers' Compensation Regulator[2018] QIRC 77
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Toombs v Workers' Compensation Regulator[2018] QIRC 77
Toombs v Workers' Compensation Regulator[2018] QIRC 77
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Toombs v Workers' Compensation Regulator [2018] QIRC 077 |
PARTIES: | Toombs, Maurice Daniel (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2018/29 |
PROCEEDING: | Appeal |
DELIVERED ON: | 27 June 2018 |
HEARING DATE: | 12 June 2018 |
MEMBER: HEARD AT: | O'Connor DP Cairns |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL Where a worker suffered from an "insidious disease", namely peripheral neuropathy, within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 – where the Workers' Compensation and Rehabilitation Act 2003 required that a notice of claim in respect of such a disease be lodged no more than six months after the diagnosis of the condition by a doctor – where appellant diagnosed in February 2012 – where the appellant lodged an application for compensation in December 2014 – whether the appellant’s application was out of time. Application for compensation lodged two years after date of entitlement to compensation for injury arose – whether time limit for lodgement should be waived – whether failure to lodge was due to mistake or a reasonable cause – appellant bears onus of proof. |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2016 (Qld) s 36A, s 131(5) Armstrong v Local Government Workcare [2014] ICQ 007 ANZ Banking Group v Q-COMP (2004) 175 QGIG 1125 Black v City of South Melbourne (1963) VR 34 |
APPEARANCES: | Mr M D Toombs, the appellant in person. Mr S McLeod of counsel, directly instructed by the respondent. |
Reasons for Decision
- [1]This appeal arises from a decision of the respondent dated 9 January 2018 confirming an earlier decision of WorkCover Queensland not to waive the statutory time limit for applying for workers' compensation in accordance with sections 36A and 131(5) of the Workers' Compensation and Rehabilitation Act 2003.
- [2]Mr Maurice Toombs, lodged a partially completed application for workers' compensation on 18 December 2014. The appellant's injury is described as peripheral neuropathy secondary to chronic Gramaxone exposure which is alleged to have been caused as a consequence of exposure to chemicals in the course of various periods of employment with Consolidated Fertilisers in the 1970's and 1980's. A completed claim form was lodged on 11 January 2015.
- [3]The respondent contends that the appellant was diagnosed by Dr Craig Costello a consultant neurologist on 9 February 2012 with neuropathy.
- [4]This appeal involves a determination of two questions:
- for the purposes of s 36A of the Act when was the appellant diagnosed with a latent onset injury?
- should the appellant be allowed to make an application for compensation more than six months after the entitlement to compensation arose?
- [5]The second question is resolved by determining whether the appellant's failure to lodge the application for compensation was due to mistake, or his absence from the State, or a reasonable cause.[1]
The Act
- [6]A "latent onset injury" is defined in Schedule 6 of the Act as "an insidious disease". An "Insidious disease" is not defined in the Act, but, in these circumstances, it may be taken to mean a disease which develops gradually and imperceptibly.
- [7]It is not in issue that peripheral neuropathy is an insidious disease.
- [8]Sections 36A and 131 of the Act relevantly provide:
36A Date of injury
(1) This section applies if a person—
(a) is diagnosed by a doctor after the commencement of this section as having a latent onset injury; and
(b) applies for compensation for the latent onset injury.
(2) The following questions are to be decided under the relevant compensation Act as in force when the injury was sustained—
(a) whether the person was a worker under the Act when the injury was sustained;
(b) whether the injury was an injury under the Act when it was sustained.
(2A) However, subsection (2)(b) does not apply if the latent onset injury is a specified disease and section 36D applies to the person.
(3) Section 131 applies to the application for compensation as if the entitlement to
…
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 than 20 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.
The Facts
- [9]The appellant was employed as a process worker with Consolidated Fertilisers which traded as Crop King. He worked for Consolidated Fertilisers in two periods. The first period was for approximately 18 months between 1974 and 1975. The second period commenced in 1982 and concluded in 1987. In addition to working at Consolidated Fertilisers the appellant worked for Hancock Sawmill and Plymill between 1970 to 1974 and briefly for TJ Watkins Builders in 1972 and then for the Cairns City Council between 1976 to 1980.
- [10]It is not in contention that the appellant is a worker for the purposes of the Act.
- [11]The appellant gave evidence that whilst working at Consolidated Fertilisers his duties required him to unload railway wagons and shipping containers which were packed with 25 kilogram bags containing BHC, an organochlorine pesticide. The appellant worked between eight to ten hours per day, sometimes longer. The bags were unloaded by hand; where made of paper; and the contents would leak through the joints of the bag. As a consequence, the appellant would come in direct contact with the BHC.
- [12]The unloading of the railway wagons and shipping containers was dusty and hot work. Ventilation was poor. The only protective equipment supplied to the appellant was limited to a mask and barrier cream for his hands. The appellant told the Commission that it was not possible to wear the mask after five or ten minutes because "…once you’d start sweating, the BHC would just burn and it would just get under your skin and just burn like hell."[2]
- [13]The appellant told the Commission that Consolidated Fertilisers paid the appellant and his co-workers overtime rates as an incentive to unload the bags of BHC as it was a task that neither the appellant or his co-workers felt comfortable undertaking.
- [14]Sometime in January 1975 a wet bag of BHC broke over the appellant's head covering his body, including his mouth, nose and lips. He reacted badly to the exposure to the BHS by vomiting blood and was hospitalised for a few days at the Cairns Base Hospital.
- [15]During the second period of employment with Consolidated Fertilisers, the appellant said that he was reluctant to continue to unload the bags of BHC and did his best to "dodge" any interaction with gammaxene. Ultimately the appellant's employment was terminated because of his refusal to unload the bags of BHC. It was the appellant's belief that it was the exposure to gammaxene which had made him ill.
- [16]The Commission was told that the appellant's health deteriorated over the subsequent months and years. He experienced high blood pressure and around 45 years of age he developed bad pains in his feet.
- [17]On 15 June 2011, Dr Mohammed at the Babinda Hospital referred the appellant to the Cairns Base Hospital for a nerve trace test. The test was reviewed at the Cairns Base Hospital by Dr Vanitha Parmanand, a neurologist. In cross-examination, the appellant agreed that Dr Parmanand diagnosed him with peripheral neuropathy. He remembered her asking him whether he had been exposed to any pesticides in the past. The appellant advised her that he had been exposed to BHC whilst he was employed at Consolidated Fertilisers.
- [18]The appellant attended on numerous general practitioners at the Babinda Medical Centre including Dr Renee Cremin.
- [19]The appellant was referred by Dr Luke Conway of the Babinda Medical Centre to Dr Craig Costello, a consultant neurologist at the Cairns Base Hospital on 8 February 2012. The appellant told the Commission that Dr Costello told him that he had Neuropathy.[3]
- [20]In cross-examination the appellant was asked if he had seen a copy of the report of Dr Costello dated 9 February 2012. He was asked:
Mr McLeod: So do you recall reading that report from Dr Costello some time in February or early March 2012?
Mr Toombs: Yeah. Well, I would have read it.
Mr McLeod: Sorry?
Mr Toombs: I would have read it. If I had it I would have read it.
- [21]The appellant remembers attending on Dr Di Palma at the Innisfail Family Health Clinic sometime in 2012. He told the Commission that Dr Di Palma tried to explain to him, in "layman’s language", what was wrong with him. The appellant told the Commission that Dr Di Palma said:
You imagine if you’re, like, left your wiring in a car, went outside, the cover comes off. It will short out on, you know, other – anything close to it, stealing that”. He said, that’s basically what was wrong with me. He said, “This disease, this BHC, is eating the – or killing the lining on the nerves and so they short out everywhere. Well, that’s what the sharp pains are.[4]
- [22]In cross-examination the appellant was asked:
Mr McLeod: And I think you gave some evidence that you saw him in 2012 and I just want to get this right. And did he say to you that BHC was killing the lining on your nerves?
Mr Toombs: Well, I asked him what – mostly if he could explain what was wrong with me by what they were saying, and that’s how he explained it to me in layman’s terms.
….
Mr McLeod: And would it be fair to say when he told you about this, that the BHC was effectively killing the lining on the nerves in your body, you related that back to your exposure to the toxic chemicals when you worked out at Consolidated Fertilisers back in nineteen – in mid-1970 and then in the 1980s?
Mr Toombs: Yeah. Yeah.
- [23]The appellant recalled attending on a general practitioner at the Babinda Medical Centre around March or April 2013. A doctor, whose name the appellant could not recall, gave him a printout of an article on the "Association of Organochlorine Pesticides with Peripheral Neuropathy in Patients with Diabetes or Impaired Fasting Glucose"[5].
- [24]In cross-examination, the appellant was asked:
Mr McLeod: So when you saw this particular doctor who gave you the – the print-out, you were under the clear impression that the cause of your neuropathy was due to your exposure working at?
Mr Toombs: Yeah.
Mr McLeod On those two periods of times with Consolidated Fertilisers. Okay?
Mr Toombs: The same as I was aware of them causing – when they put me in – when I was in the hospital and they wouldn’t take any notice of me, kept telling me there was no such poison.
Mr McLeod: That was back in 1975?
Mr Toombs: Yeah.
Mr McLeod: Right. When the bag fell?
Mr Toombs: Yeah.
- [25]The doctor at the Babinda Medical Centre advised the appellant to seek legal advice to ascertain whether the appellant had any rights to seek workers' compensation.[6] It was around April 2013 that the appellant sought the assistance of Maurice Blackburn Solicitors. Prior to seeing Maurice Blackburn, the appellant had seen three or four solicitors.[7] It is not clear from the evidence what level of involvement Maurice Blackburn had. What is clear is that it was Maurice Blackburn who assisted the appellant to lodge the application for workers' compensation in December 2014. Maurice Blackburn subsequently withdrew as solicitors for the appellant.
- [26]The appellant was asked why he did not submit a workers' compensation application until December 2014. He was asked in evidence-in-chief:
His Honour: Mr Toombs, can you tell me when you got the medical certificates, and when you got your treatment from the doctors, why haven’t you put an application for compensation in earlier?
Mr Toombs: What, for – for
His Honour: Yes?
Mr Toombs: seventy-five or
His Honour: Yes. For what happened to you at work?
Mr Toombs: Well, they reckoned there was no such poison, they kept telling me in 1975 but, as I say, then I come good, so I never worried about it.
Medical Evidence
- [27]The regulator called Dr Craig Costello a consultant neurologist. Dr Costello first saw the appellant at the Cairns Base Hospital on 8 February 2012. In a report prepared on 9 February 2012, Dr Costello noted that the appellant has long term sensory symptoms predominately in his lower limbs and more recently in his hands. Dr Costello was of the view that the symptoms were "… classic for a length dependent polyneuropathy and are burning and hyperaesthetic in nature."[8]
- [28]After summarising the findings of previous nerve conduction studies, Dr Costello opined:
Overall, the features of this nerve conduction study are axonal in nature. With axonal loss there is mild secondary slowly of conduction velocities. This slowing is not in the demyelinating range. These changes are also sensory more that motor. Notwithstanding the technical issues, I believe these findings are consistent with a sensory greater than motor axonal peripheral neuropathy.
Axonal neuropathies are usually toxic in nature. In Maurice's case this may be multifactorial. Some of this is likely to be related to previous heavy alcohol use and some is also likely to be related to his impaired glucose tolerance. I note Maurice's history of Gramoxone exposure. This is a toxic substance, I am unsure whether this is a component or not, but it may well be.[9]
- [29]The report of Dr Costello also identified that the appellant's medical history included atrial fibrillation, congestive heart failure, impaired glucose tolerance, anxiety, depression and arthritis.
- [30]Dr Costello again saw the appellant following a referral from Dr Tanya Truong, a general practitioner at the Babinda Medical Practice. In the report dated 11 July 2014, Dr Costello, after outlining the appellant's history, wrote:
Mr Toombs provided me with an article entitled, 'Association of Organochlorine Pesticides with Peripheral Neuropathy in Patients with Diabetes or Impaired Fasting Glucose'. The authors of this article were Duk-Hee-Lee et al. It was published in Diabetics: Volume 57 November 2008, pgs 3108-3111.
The above article is a cross-sectional designed study which shows evidence supportive of Organochlorine pesticides being associated with higher risks of peripheral neuropathic complications in patients with diabetes or impaired glucose tolerance above and beyond the influence of the blood glucose abnormalities themselves.
Whilst it is impossible to prove it is also impossible to exclude the likelihood that persistent exposure to a known neurotoxin such as Organochlorine is a contributing factor in Mr Toombs' axonal neuropathy. As previously noted in my report from the Cairns Base Hospital I suspect Mr Toombs' symptomologies are multifactorial but I feel there is sufficient evidence supportive of a contribution from his past confirmed Organochlorine exposure.[10]
Consideration
- [31]The regulator contends that Dr Costello diagnosed on 9 February 2012. It is not in contention that the diagnosis of axonal peripheral neuropathy is not an insidious disease. In Armstrong v Local Government Workcare, Martin J addressed the meaning to be given to the word "diagnosed" in s 36A(1)(a) of the Act. His Honour wrote:
[26] The intent of s 36A is to set up a mechanism whereby someone with an insidious disease can seek compensation if other prerequisites are met. It is inconsistent with the premise of s 36A, namely, that a person is diagnosed with a latent onset injury and then applies for compensation, that the diagnosis is not conveyed to the person. It is not consistent with s 36A that the diagnosis should remain a secret from the patient. “Diagnosis” has been described as a mere act of cerebration by a doctor – the formation of an opinion and nothing more. But, in circumstances where it is characterised as the trigger for the entitlement to compensation, it would be inconsistent with the intent of this archetypal piece of remedial legislation for “diagnosis” to be construed in a way that would allow an uncommunicated opinion to lie quietly, ticking away, as the time limit for making an application ran out.
[27] For a “diagnosis” of a latent onset injury to activate a time period in a statute which has, as one of its objects, the establishment of a scheme to provide “benefits for workers who sustain injury in their employment” it must be a diagnosis which is given to the prospective applicant.[11]
- [32]The importance of the date of diagnosis arises from s 36A(4) which provides that, in relation to a person’s claim, the date of diagnosis is taken to be the date on which the injury was sustained.
- [33]Section 36A does not require a doctor to evaluate a link between the injury and employment. Nor does it require some determination whether a person was a worker for the purposes of the relevant Workers' Compensation legislation or whether the injury was an injury under the relevant legislation. In Armstrong Martin J wrote:
…s 36A(2) directs someone (presumably the insurer) to decide whether the applicant was a worker under the Act and whether the injury was an injury under the Act. In other words, the aetiology of the injury is to be determined by someone else. Whether the applicant has been told what caused the injury is not relevant to s 36A. It, and s 131, provide an applicant with a six month period in which to determine whether to make an application.
- [34]By the express terms of s 131(1) of the Act, a claim is valid and enforceable only if the application for workers' compensation is lodged within 6 months after the entitlement for compensation arises. As observed by his Honour President Hall in ANZ Banking Group v Q-COMP, "non-compliance with the six-month time limit … is a matter of some gravity."[12]
- [35]Pursuant to s 131 of the Act, an application for workers' compensation must be lodged within 6 months after the entitlement for compensation arises. However, s 131(5) of the Act allows the insurer to waive the requirements of sub-section (1) if it is satisfied that the failure to lodge the application was due to mistake or reasonable cause. There was no suggestion that the Appellant was absent from Queensland during the relevant period.
- [36]I accept the contention of the respondent that for the purposes of s 36A the appellant was diagnosed by Dr Costello with axonal peripheral neuropathy on 9 February 2012. I further accept that the diagnosis was communicated at the same time to the appellant by Dr Costello. The appellant argued that the diagnosis given by Dr Costello on 11 July 2014 was clearer than the one given in February 2012. In cross-examination, Dr Costello was asked by the appellant:
Mr Toombs: would it be fair to say that this second one is a better diagnosis than the first one? Look, I don’t think I’ve proffered a different diagnosis in the second letter to the first letter. I might have used different sentence structure or something like that, but the context and the content of the letter, in my opinion, or of the two letters, in my opinion, says effectively the same thing.[13]
- [37]Notwithstanding the diagnosis of Dr Costello, the evidence suggests that Dr Parmanand a neurologist at the Cairns Base Hospital also diagnosed the appellant with Peripheral Neuropathy on or about 15 June 2011 as did Dr Di Palma some time in 2012. The appellant seemed to discount the diagnosis of Dr Di Palma on the basis that he wasn't a neurologist suggesting: "So they can’t make a diagnosis like that. They can only make an assumption, is what they tell me."[14]
- [38]It also needs to be remembered that in March or April 2013, the appellant attended on a general practitioner at the Babinda Medical Centre and, following some discussion with the doctor, the appellant was provided with a journal article dealing with the link between organochlorine pesticides and peripheral neuropathy. The appellant said in cross-examination that the doctor advised him to seek legal advice whether, in fact, he had any rights to claim workers' compensation arising from his stated condition.[15]
- [39]In accepting that 9 February 2012 as the date of diagnosis, then the appellant's application for compensation was lodged over two years outside the legislative timeframe. For the appellant's application for compensation to be valid and enforceable it should have been lodged with WorkCover Queensland by August 2012.
- [40]It was clear from the appellant's evidence that it was his understanding that his condition being diagnosed as peripheral neuropathy relates back to his exposure to the toxic substance BHC when he worked during the two periods in the 1970s and the 1980s with Consolidated Fertilisers.
- [41]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.[16]
- [42]The onus of proof rests on the appellant to demonstrate, on the balance of probabilities, that his failure to lodge the application for compensation within the statutory timeframe was due to a mistake or reasonable cause. He has failed to do so. The appellant adduced no evidence in relation to s 131(5). There is no evidence that there was a reasonable cause for failing to file the application within the six month period. Nor is there any evidence of mistake. In particular, the appellant made no submissions about whether his failure to lodge an application for compensation within the prescribed period could be explained by reference to either mistake or a reasonable cause. On that basis, I cannot conclude that there was mistake or reasonable cause. As a consequence, the discretion is not enlivened within the Act.
Order
- The appeal is dismissed;
- The respondent's review decision dated 9 January 2018 is confirmed; and
- The appellant pay the respondent's costs of and incidental to the appeal.
Footnotes
[1] s 131(5) of the Act.
[2] T1-6 Ll. 19-20.
[3] T1-10 Ll. 46-47; T1-16 Ll.30-34
[4] T1-9 Ll. 45-47; T1-10 Ll. 1-5.
[5] Exhibit 1.
[6] T1-20 Ll. 42-43; T1-20 Ll. 45-46.
[7] T1-14 Ll.35-36
[8] Exhibit 4.
[9] Exhibit 4.
[10] Exhibit 5.
[11] [2014] ICQ 007.
[12] (2004) 175 QGIG 1125.
[13] T1-35 Ll.39-43.
[14] T1-13 Ll.1-4.
[15] T1-20 Ll.41-46.
[16] (1963) VR 34.