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Wilson v Workers' Compensation Regulator QIRC 108
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Wilson v Workers' Compensation Regulator  QIRC 108
Wilson, Karen Anne
Workers' Compensation Regulator
Appeal against decision of the Workers' Compensation Regulator
22 July 2019
7 March 2019
29 March 2019 (written submissions of Appellant)
23 April 2019 (written submissions of Respondent)
3 May 2019 (written submissions in reply of Appellant)
WORKERS' COMPENSATION – Application for compensation lodged one year 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.
Workers' Compensation and Rehabilitation Act 2003
Black v City of South Melbourne  VR 34
Carlton v Blackwood  ICQ 001
Pollock v Wellington (1996) 15 WAR 1
Quinlivan v Portland Harbour Trust  VR 25
Simon Blackwood (Workers' Compensation Regulator) v Adams  ICQ 001
Yousif v Workers' Compensation Regulator  ICQ 004
Mr T. O'Brien, Counsel, instructed by Carbone Lawyers
Mr P. O'Neill, Counsel, directly instructed by the Workers' Compensation Regulator
Reasons for Decision
- Ms Karen Anne Wilson ("the appellant") was employed as the General Manager of Maintenance for Australian Maritime Systems ("AMS") throughout 2016.
- The appellant maintains she sustained an injury on 28 June 2018 in a poker machine gaming room located within a hotel in Melbourne where she was staying, after attending a series of work meetings during the day. Approximately one year later, she lodged a claim for workers' compensation in respect of that injury.
- Other than where the time limit is waived, the relevant legislative scheme provides that an application for compensation is valid and enforceable only if the application is lodged by the claimant within six months after the entitlement to compensation arises.
- The appellant has filed a notice of appeal in the Queensland Industrial Relations Commission against a decision by the Workers' Compensation Regulator ("the respondent") confirming a decision of WorkCover not to waive the time for applying for compensation in accordance with s 131 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
- The appeal is a hearing de novo. The Commission is required to determine whether the time limit for lodging the application for compensation should be waived because the appellant's failure to lodge the application was due to one of the reasons listed in s 131(5) of the Act.
- The appellant bears the onus of proof on the balance of probabilities. That is, she must satisfy the Commission that there was a legally valid reason why she failed to lodge the application in time and, further, that the Commission should decide that the time limit be waived. Only if she can satisfy the Commission about those matters will her claim for compensation be considered.
- The respondent contends the appellant's failure to lodge the application for compensation was not due to any of the reasons set out in s 131(5) of the Act, i.e. a mistake, her absence from the State or a reasonable cause.
The Legislative Scheme
- For the purposes of this appeal, it is necessary to consider ss 131 and 141 of the Act.
- The relevant subsections of s 131 of the Act provides:
- (1)An application for compensation is valid and enforceable only if the application is lodged by the claimant within six months after the entitlement to compensation arises.
- (2)An insurer may waive s 131(1) 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.
- Section 141 provides in part that the entitlement to compensation for an injury arises on the day the worker is assessed by a doctor. However, in respect of when the entitlement to weekly payments of compensation start:
- (a)if a doctor 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 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 assesses the injury.
The appellant's case
- As mentioned earlier, the appellant submits her injury occurred on the evening of 28 June 2016 in a poker machine gaming room located within a hotel where she was staying overnight, after attending a series of work meetings throughout the day.
- According to the appellant's Statement of Facts and Contentions, she entered the gaming machine area of the hotel where she:
...had a win on the computer and pressed the button to be paid out and waited for the attendant. I was on the phone to my partner at the time. When the woman approached I got up to walk away to let her get to the machine. She started to speak to me so I asked my partner to hang on a sec so I could talk. The attendant said I needed to press another button and as she forced me to turn back to do this, my left foot caught of [sic] the leg of the chair…..falling backwards landing on my coccyx,…and continued to fall hurting my back and hitting my head on a steel cabinet.
- The appellant was first assessed by a doctor for the injury which is the subject of these proceedings on 29 June 2016 at the Sale Hospital.
- A few days later, after returning from Victoria, the appellant attended another appointment with her General Practitioner, Dr David Nixon. He told the Commission he assessed the appellant on that day, 4 July 2016, as experiencing an exacerbation of neck pain, along with some back pain.
- Having regard to the time constraints within s 131(1) of Act, it was necessary for the appellant to lodge the application for workers' compensation, ideally (at the latest) on or before 4 January 2017. Instead, the application was lodged approximately one year after the incident leading to the claimed injury, on or around 4 July 2017.
- In this matter, the appellant has conceded the application for compensation was lodged out of time.
- The foundations upon which the appellant based her argument that the Commission should waive the requirement in s 131(1) for her to lodge the application within six months were contained within her Statement of Facts and Contentions:
2 – The Regulator has not taken into account any of the specialist advice which has been provided by 5 medical professionals stating that I was in no way competent during this period to have researched the legalities of the Workers' Compensation Act and submitted a claim for WorkCover during the first 6 months following the injury (a timeframe I was unaware existed).
3 – I reported my injury to my employer as was the procedure for the company I worked for. My assumption was that they would report this and that when capable I would then be able to follow on with the details of a claim when required.
4 – The Regulator referred to the fact that I had consulted a solicitor in Victoria in terms of a Public Liability claim. I did not do this without help. I was aided to function in regards to this by my cousin (a solicitor in NSW) who assisted me to engage with a Victorian law firm… Emails can be provided showing the correspondence with my cousin who reviewed the solicitor's details.
5 – I also contest that I had not completed work for the day as previously noted...
6 – I am not a solicitor and have never submitted a Workcover claim in my working life. I made numerous attempts to engage a solicitor…
Matters in Contention
- Having regard to the concession by the appellant that the application for compensation was lodged out of time, the remaining issue for determination by the Commission is whether the appellant can establish a ground to waive the late lodgement of the application pursuant to section 131(5) of the Act.
- It is appropriate, therefore, to consider the following questions:
- (a)Why did the appellant fail to lodge the application within the prescribed period?
- (b)Should the Commission waive the requirement in s 131(1) to lodge the application for compensation within six months after the entitlement to compensation arose?
The Injury and subsequent treatment
- Having lost her footing in the poker machine room on the evening of 28 June 2016, the appellant described how she travelled to Sale, in some discomfort, where her partner was staying for the weekend. The appellant presented to the emergency department and was discharged from the Sale Hospital on 1 July 2016. She was prescribed Endone and Oxycontin to treat her pain.
- In her evidence to the Commission the appellant maintains she did not receive a definitive diagnosis in respect of her injury until November/December 2016.
- The appellant told the Commission she was in pain, distressed and quite foggy in the head when she arrived back in Brisbane from Victoria. She maintained she was unable to do very much and required support and assistance for various daily functions in the months following her fall. By way of example, she explained:
I was unable to drive. I was unable to cook, clean, take-care-of-myself duties. I needed assistance with showering and dressing – to that extent incapacitated. I was basically passing out during the day from falling asleep, unaware that I was falling asleep from time to time and had fallen asleep on some phone conferences, which was embarrassing, but the level of medication created a – a drowsiness that – yeah, it just made me pass out.
- Dr Nixon told the Commission the appellant had been his patient for approximately four to five years. In his initial consultation following her return from Melbourne, Dr Nixon determined she had an exacerbation of neck pain, along with some back pain. He prescribed Endone and Oxycontin for the pain.
- A record contained in the appellant's patient summary for an appointment on 4 July 2016, with her GP, in the week following the incident noted:
Had a fall last week in Melbourne and hurt back and neck.
Was at a Hotel and took some Endone that she already had
Then presented to Sale and presented to ED there
started Physio this morning with some light exercises with the pain…
Is having to wear a soft collar and told to take it off every few hours until ...too painful
Is still having to Ice bottom, head and neck. Heat to back
still experiencing some blurry vision.
- During the appointment, Dr Nixon prescribed: "Endone 5 mg, 1 three times a day as directed prn" and "Oxycontin 10mg Slow Release Tablets (Oxycodone Hydrochloride) 1 in the evening". As best I understand it, the Oxycontin was prescribed to assist the appellant to go to sleep.
- Although Dr Nixon conceded he had limited recollection of his consultations with the appellant in the absence of her medical records, he considered that the reason for the appellant's absence from work, in the period after she was treated for her injury, was due to her pain and inability to sit and concentrate for long periods of time.
- Dr Nixon told the Commission the appellant's pain did not improve to any great extent. As far as he could recall, her level of pain continued on to the end 2016. Dr Nixon was of the opinion she would have had difficulty attending to administrative tasks during this period.
- Although Dr Nixon considered that medication such as Endone and Oxycontin could lead to cognitive slowing and lack of acuity, he was not unable to say with any certainty what the effects of the medication were on the appellant around the time of her injury.
- Under cross-examination, Dr Nixon acknowledged he was already prescribing Endone, Diazapam and Lyrica for other conditions experienced by the appellant prior to June 2016. Contrary to his opinion that the appellant's pain continued on with limited improvement until the end of 2016, Dr Nixon acknowledged, under cross-examination that in late August 2016, his consultation notes confirmed there had been an improvement in the appellant's condition, which led to him reducing her pain-killing medication.
- Although Dr Nixon initially struggled to concede the appellant was capable of undertaking administrative tasks and possessed a reasonable degree of functional capacity in the months after 28 June 2016 (in circumstances where she was working from home and travelling for work), he eventually conceded that her ability to work from the office indicated she had some degree of functionality.
- Under cross-examination, the appellant acknowledged she had been prescribed and was taking both Endone and Lyrica prior to the injury which forms the basis of this appeal, but she maintained Dr Nixon directed her to increase the dose of Endone following the 28 June 2018 incident.
- Having regard to the appellant's medical records in the 18 months prior to the incident in the poker machine room on 28 June 2018, I note she was prescribed Endone by Dr Nixon on at least ten occasions.
- The accompanying description for the prescription in the appellant's medical records was regularly noted by Dr Nixon as: "Endone 5mg Tablet (Oxycodone Hydrochloride) 1 Three times a day as directed prn".
- In the 18 months prior to 28 June 2018, I accept the appellant was also prescribed Lyrica, Panadeine Forte and Mobic, but nowhere near the extent and consistency with which the Endone was prescribed. Separately, she was also prescribed Dothep by Dr Martin Deveraux, a Rheumatologist. The appellant was initially referred to Dr Deveraux in May 2016, before the 28 June 2016 incident.
- Dr Nixon ceased Dothep (which can be used for the treatment of depression) at a consultation with the appellant on 16 August 2016. The appellant's medical notes contain a record of a request for a new script for Dothep from Dr Nixon in January 2017, 18 months after she injured herself in Melbourne.
- The appellant attended upon Dr Nixon on four more occasions in the month after the 4 July 2016 appointment. The appellant's patient records confirm Dr Nixon prescribed a further slow release Oxycontin tablet (20 mg) to be taken twice a day, in addition to another slow release Oxycontin tablet (10 mg) to be taken in the evening and the Endone 5 mg Tablet in the same way it had been prescribed during the previous 18 months before the injury.
- A record of an appointment the appellant attended with Dr Nixon for 16 August 2016 noted:
Looking a lot better today
is here to discuss pain management today
Isn’t having to take as much pain medication now
Has only had to have 2 Endone so far today
has started to drive short distances
- At the conclusion of the 16 August 2016 appointment, Dr Nixon ceased both the Endone and the Oxycontin prescriptions, instead prescribing Tramadol (50 mg), 1 tablet (twice a day). At a subsequent appointment on 19 August 2016, Dr Nixon ceased the Tramadol prescription, and prescribed: "Endone 5 mg Tablet (Oxycodone Hydrochloride) 1 Three times a day".
- Thereafter, in the months until January 2017, Dr Nixon generally continued to prescribe Endone in his usual way for the appellant, along with an Oxycontin 10 mg slow release tablet to be taken by the appellant twice a day.
Employment history and knowledge of workers compensation processes
- The appellant was promoted to the position of General Manager of Maintenance for AMS in June 2016. The position was based in Brisbane where the appellant resided, but she was often required to travel for the role.
- Prior to her employment with AMS, the appellant held various senior management roles with other organisations, predominantly in finance or contract management. Depending on the role she undertook, the responsibilities often included management of anywhere between three and ten direct reports.
- In some instances, the appellant was responsible for direct reports who also had other staff reporting into their respective positions, further increasing the number of employees within the division or area for which the appellant was ultimately responsible.
- The appellant, while giving evidence, highlighted the failure of both her employer and doctor to advise her to lodge a workers' compensation claim following her fall, but later acknowledged she was aware of the workers' compensation scheme. She was also cognisant that a worker could apply for compensation in the event they were injured.
- By way of example, in an email exchange which took place on Wednesday, 13 July 2016 between the appellant and an AMS, QHSE Manager, TJ Phillips, in the weeks after her fall, the appellant was requested to "follow up with Heath as to why he failed to report as per the AMS procedure? This will need to be appropriately address [sic] and recorded".
- The appellant responded, noting "[t]he issue is he didn't think it was a serious injury and didn't happen on site so perhaps wasn't thought to be at work. Let's see what the doctor says then address the reporting side".
- Likewise, in respect of her own injury and within the same email exchange, the appellant noted:
In terms of me it was after work at the hotel near the Mentone depot. Was there for AMSA audits and meeting.
Was playing the pokies, had a win, got up to step back and let the lady pay me out and then lost my footing…
- During cross-examination, the appellant rejected the notion that the reason why she did not lodge an application for compensation was that she did not believe it was a work-related incident or that she was entitled to claim.
Activities undertaken following 28 June 2016 incident
- Although the appellant contends she experienced 'moderately severe to severe' pain and that the medication prescribed by Dr Nixon impaired her mental acuity, in turn impacting her capacity to lodge a workers' compensation claim in the six months following the 28 June 2016 incident, the materials before the Commission indicate she:
- (a)resumed working as early as mid-July 2016, albeit predominantly from home;
- (b)was able to send, receive and respond to work emails in a coherent and professional manner from mid-July 2016 onwards;
- (c)was able to conduct a meeting with a team member (albeit from home) on 19 July 2016;
- (d)increased her combined workplace and home working hours to the extent that she was working up to 28 hours in any one week;
- (e)engaged with her employer about administrative issues associated with her employment, including the requirement to complete a leave form;
- (f)commenced driving short distances;
- (g)engaged with a cousin (a lawyer) in July/August 2016 based in Sydney in respect of initiating personal injury compensation proceedings relating to her fall in the poker machine room on 28 June 2016;
- (h)engaged directly with the Victorian Law Institute (via email and over the phone) to obtain the details of a specialist compensation law firm;
- (i)spoke directly to at least one Victorian-based solicitor for the purpose of initiating personal injury proceedings;
- (j)was forwarded a retainer agreement and associated documentation from the law firm, which she forwarded to her cousin for her consideration;
- (k)signed retainer documentation, arranged for the materials to be returned to the solicitor and authorised the release of her medical records; and
- (l)undertook travel to Sydney, Canberra and Melbourne for both work and personal reasons in the months of September 2016, November 2016 and January 2017.
What was the injury for which compensation is sought?
- Having regard to the record of the appellant's attendance at an appointment with Dr Nixon on 4 July 2016, it is clear she reported an incident while traveling for work, whereby she fell and hurt her back and neck. The record of the appointment includes a reference to the appellant advising her GP she had commenced physiotherapy and was wearing a soft collar to manage the pain.
- Limited, if any, evidence of a formal diagnosis was provided to the Commission during the proceedings.
- The Commission had the benefit of hearing Dr Nixon's oral evidence and was also provided a copy of the appellant's patient health summary from the Gumdale Medical Centre.
- Dr Nixon told the Commission the appellant experienced an exacerbation of neck pain, along with some back pain. He prescribed Endone and Oxycontin for the pain.
- As such, I am satisfied that the appellant was aware she had suffered an injury to her lower back and neck by on or around 28 June 2016 and was assessed by a doctor for that injury, on or before 4 July 2016.
Why did the appellant fail to lodge the application within the prescribed period?
- Section 131(5) of the Act provides that an insurer may waive s 131(1) for an application for compensation if the insurer is satisfied that a claimant's failure to lodge the application was due to mistake, or the claimant's absence from the State, or a reasonable cause
- There is no suggestion in this matter that the appellant was absent from the State of Queensland. As such, the appellant can only succeed if the Commission is satisfied that the lateness of her application was due to mistake on her part, or that there was "a reasonable cause" for the delay.
- Although the appellant has included additional reasons in her written submissions detailing why she did not lodge her application within the prescribed period (which I will address separately below), having regard to the Statement of Facts and Contentions filed in support of her matter, the reasons relied upon (as best I understand them) are:
- the degree of pain and discomfort the appellant was experiencing in combination with the effects of her pain medication prevented her from lodging an application;
- she lacked the competency to research the workers' compensation system and, in turn, lodge an application;
- she reported her injury to her employer and assumed "they would report this and that when capable I would then be able to follow on with the details of the claim when required"; and
- she hadn’t previously lodged a workers' compensation claim but made numerous attempts to engage a solicitor.
- Although not set out in her Statement of Facts and Contentions, the appellant, in her written submissions filed at the conclusion of the proceedings, also raises an alleged failure on the part of her solicitor(s) to advise her about the option of making a workers' compensation claim as a reasonable cause for her failure to lodge a claim.
Severity of Injury & Impact of Pain Medication
- Dr Nixon, although unable to recall the specific details of his consultations with the appellant, was of the view her pain continued, largely unimproved, until the end of 2016.
- The appellant told the Commission the pain medication she was taking at the time, in conjunction with the pain associated with her injury, left her foggy and unable to function. While the appellant acknowledged she was prescribed Endone prior to the incident on 28 June 2016, she suggested she took it more on as needs basis at that time, which differed from her circumstances after the incident, in that Dr Nixon suggested she increase the dose to assist her to better manage the pain.
- The appellant's medical records indicate she continued to be prescribed a similar dose of Endone by Dr Nixon both before and after the incident on 28 June 2016. It is clear Dr Nixon also prescribed slow release Oxycontin after this time. The recorded dose of Oxycontin prescribed by Dr Nixon decreased or increased in the months leading up to January 2017 and beyond.
- Although Dr Nixon was of the opinion that pain medication could impact acuity and cognition, he was unable to explain to the Commission, with any certainty, the extent of the impact of the medication on the appellant. He also acknowledged that by mid-August 2016, the appellant's pain appeared to have improved such that there is a record of the pain medication either being ceased and/or reduced for a period.
- As touched on above, an analysis of subsequent patients records indicates Dr Nixon resumed prescribing both Endone and other forms of pain medication over the 14 months that followed the cessation of the pain medication in August 2016.
- The appellant maintains the severity of her injury and the impact of the pain medication prescribed by Dr Nixon in the six months following her fall in Melbourne in June 2016 impaired her cognition and ability to function, which extended to preventing her from lodging an application for compensation.
- The difficulty I have with this submission is that, to a large extent, it is at odds with other evidence before the Commission highlighting the appellant's gradual recovery from her fall in Melbourne and an improved capacity to function at a reasonably high level in other areas of her life between late July 2016 and January 2017, for example:
- the appellant resumed working, albeit from home, undertaking responsibilities associated with her senior management role within weeks of injuring herself;
- in the month of August 2016, Dr Nixon reduced the appellant's pain medication, noting an improvement in her condition and pain levels;
- over time, the appellant gradually returned to work, such that it appears she was undertaking a combination of work and home hours from August 2016 onwards and possibly earlier;
- the appellant continued to increase her working hours in the months leading up to January 2017;
- the appellant undertook travel to other states, as part of her role in the six months following her fall in Melbourne;
- in late July/early August 2016 the appellant had sufficient capacity such that she was able to take steps to locate and initiate contact with a Victoria law firm. In the same period, she took steps to sign a retainer arrangement with a view to have the firm represent her in personal injury compensation proceedings related to the incident in Melbourne on 28 June 2016;
- the appellant possessed the functional capacity to email, make phone calls, book travel, undertake travel, sign and return documents and drive short distances. The quality of the communication contained in the emails provided to the Commission, on the face of it, appeared to be coherent and professional; and
- the appellant continued and in fact increased the extent of her travel for work purposes well into 2017.
- While I accept the appellant experienced significant pain in the weeks following her fall and that her pain, either from the fall and/or other conditions that were present in her life before her fall, continued to be a problem for her, the activities undertaken by the appellant as set out above are largely at odds with her contention that she was prevented, in a functional or cognitive sense, from taking steps to inquire about or lodge a workers' compensation application in the six months following her fall.
- Accordingly, I have not been persuaded the pain associated with the appellant's injury in combination with the impact of the medication she was consuming at the time to manage her pain, operated to the extent that she was prevented from undertaking administrative tasks, including the lodgement of a workers' compensation claim.
Failings of employer
- In addition to raising concerns about her employer not reporting the fall/injury, the appellant maintains her employer failed her by not advising her to make a workers' compensation claim.
- The appellant maintains she contacted AMS on 28 June 2016 and 13 July 2016 regarding her injury, on the understanding her employer would advise of any right to claim workers' compensation.
- In support of this claim, the appellant provided the Commission with a copy of a brief SMS message dated Saturday, 29 June 2016, between herself and Mr Richard Moreton, the acting CFO for AMS, that read as follows:
In Sale Hospital getting scans done.
Got into trouble for waiting till today.
But they still gave me morphine so feeling great. (for the next 10 min)
Will give you an update tomorrow.
- In an email to 'TJ Phillips' (the QHSE Manager for AMS) on 13 July 2016, she wrote:
It's funny how the rumour mill spreads. Not [sic] idea who knows but AMSA knew the next day. I tried to keep it quiet as I didn’t want any worry or fuss. Didn’t tell family or friends either to keep it simple.
In terms of me it was after work at the hotel near the Mentone depot. Was there for AMSA audits and meetings.
- The enquiry from TJ Phillips on 13 July 2016, a dedicated health and safety professional with AMS, presented the appellant with an opportunity to raise a query about her injury in the event she considered or possibly wondered whether it arose out of, or in the course of, her employment. Certainly, the email exchange indicates TJ Phillips and the appellant were also discussing the injury of another employee within the appellant's team where there was some question as to whether the injury occurred at work.
- Yet despite prodding on the same day by TJ Phillips in respect of her own injury, there was no positive action taken on the part of the appellant to actively report the injury as arising out of work and/or an indication that she wished to pursue a claim through her employer.
- Having regard to the appellant's age, prior work experience, the nature of the senior management roles undertaken by her in the past along with her responsibilities for managing staff at AMS and other employers, I agree with the respondent's description of the appellant as a sophisticated applicant for workers' compensation benefits.
- After considering the evidence before the Commission, it is clear the appellant, instead, chose to pursue a personal injury claim.
Failings of legal advisor
- The appellant submits that in the period immediately after her fall she took 'steps to see whether there is a worthwhile right of action'.
- The respondent argues that in circumstances where it was not put on notice within any version of the appellant's Statement of Facts and Contentions that this would be an argument relied by the appellant during the proceedings to support her position that a reasonable cause had been established, it would be inappropriate for the Commission to allow the appellant to pursue this argument in her written submissions.
- In support of its position, the respondent relies on various authorities including Yousif v Workers’ Compensation Regulator, where Martin P noted:
A Statement of Facts and Contentions is not attended with the same level of formality as pleadings in the traditional sense are. The Commission is relieved, by s 531 of the IR Act, of many of the strict rules which apply in the civil courts. But the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respect cases. This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal. It follows, then, that the Commission is entitled to rely on the Statement as a complete statement of a party's case and, if an admission is made, to rely on that admission.
- The practical impact of the appellant's failure to put the respondent on notice in respect of her concerns about the alleged failure of solicitors to properly advise her, is that the respondent had been denied the opportunity to call evidence to meet the argument.
- Having regard to the authorities in respect of this matter, I agree with the respondent's position and am unable to accept the alleged failure by the appellant's solicitors to advise her properly, as a valid ground for a reasonable cause.
- Even if I were to be wrong in respect of my concerns about the appellant's failure to properly set out her arguments in her Statement of Facts and Contentions, I could not have been persuaded, in any event, that there had been a failure by a solicitor to appropriately advise the appellant, given the lack of any reliable evidence before the Commission to support such a position. (For example, instructions provided to solicitors approached by the appellant in respect of her injury and/or advice provided to the appellant by solicitor(s) and the timing of that advice in relation to her options).
Ignorance of workers' compensation system and right to claim
- During cross-examination, the appellant was asked a series of questions around the reasons why she did not lodge an application, including:
See, I put to you that – what it will ultimately come down to, Ms Wilson, I'll put to you that the reason you didn't make any inquiries, the reason why you didn't believe, in fact, lodge an application for compensation was that you simply believed that wasn't a work related incident and you weren't entitled? --- No, that's not correct.
It's either that or you're ignorant of your entitlement to claim worker's compensation? --- Yes, that is, that's correct.
- The respondent submits that this is in fact the true reason why the appellant did not lodge an application for compensation. Moreover, that ignorance of the right to claim compensation does not constitute either a mistake or a reasonable cause for the purposes of s 131(5) of the Act.
- Certainly, in Black v City of South Melbourne, the Full Court of the Supreme Court of Victoria confirmed that ignorance of the law is not a relevant mistake for the purposes of limitation or notification provisions similar to those contained in s 131 of the Act.
- The respondent goes further in its submissions, suggesting the appellant made a deliberate decision to pursue a public liability claim instead of a workers' compensation claim.
- The appellant confirmed in her evidence that she was unaware of any entitlement to claim workers' compensation. In circumstances where the incident which is the subject of these proceedings occurred while the appellant was playing poker machines in a hotel during the evening, one can appreciate why she may not have considered that she had a legitimate workers' compensation claim. Even so, there is insufficient evidence before the Commission to determine whether she may have arrived at such a conclusion, based on advice she sought from her solicitor(s).
- In any event, I am satisfied having regard to past decisions in respect of the issue of mistake and the evidence in these proceedings, that the appellant's failure to lodge the application within the prescribed period due to her ignorance about her right to make a claim was not due to a 'mistake'.
- Other events, which took place beyond the six-month limitation period, but briefly referred to in the appellant’s evidence and submissions include:
- the appellant's cousin passing away from cancer;
- the appellants aunt passing away;
- the appellant undergoing throat surgery;
- the appellant undergoing cataract surgery; and
- the appellant undergoing a nerve numbing test.
- No reliable evidence, either from the appellant herself or a treating medical practitioner highlighting how these events impeded her ability to lodge a workers' compensation claim, was provided to during the proceedings.
- I note also that in Black 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.
- Having regard to that decision, the fact that the limitation period had expired before these events occurred and also the lack of reliable evidence in respect of how these events impacted the appellant's capacity to lodge a workers' compensation claim, I am unable to conclude they fall into the category of 'reasonable cause' for the purposes of this matter.
- As best I understand it from her final written submissions, the appellant identifies three grounds as being either a mistake or reasonable cause for not lodging her application for compensation within the prescribed period:
- (a)the injury itself caused the delay due to severe pain levels and the impact of the pain relief prescribed;
- (b)the appellant took reasonable steps to determine whether there was a worthwhile right of action, which included retaining solicitor (s) on the understanding that they would advise on all claims available; and
- (c)the appellant took steps to report her injury to her employer with the understanding that her employer would advise of any right to claim workers' compensation.
- In Quinlivan v Portland Harbour Trust, Scholl J said that the expression "reasonable cause" means to refer to:
… 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.
- In Black, the Full Court, which cited with approval the passage from Quinlivan set out above, compared "reasonable cause" with "mistake":
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.
- Although I accept the appellant experienced a high level of pain due to her fall and it is clear her pain medication was increased by Dr Nixon in the weeks following the injury, I am not satisfied her cognition and acuity were so profoundly impacted that she was prevented from making an application or making enquiries as to how to make an application for workers’ compensation in the six months following the event.
- In Pollock v Wellington, Anderson J said:
Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be grounded upon those facts.
- Although Dr Nixon's verbal evidence was that the appellant's pain continued (unimproved) until the end of 2016, there is more reliable evidence before the Commission that indicates the appellant not only improved (in terms of her pain levels) during this period but was also able to undertake a series of administrative tasks associated with work that required a reasonable degree of functionality and cognition. Moreover, the appellant was able to engage with solicitor(s) in respect of a personal injury matter, travel interstate and drive.
- Accordingly, I do not accept the first ground relied upon as being a reasonable cause.
- In respect of the second ground, I note this was not raised by the appellant in her Statement of Facts and Contentions as a reason for the delay and it would be inappropriate for the Commission to consider it at this late stage.
- As stated earlier, even if the Commission were inclined to consider (b), there is insufficient evidence before the Commission, e.g. the instructions given to the solicitor(s) and what advice was sought, when the advice was sought, the nature of the advice provided to the appellant and the timing of the advice, to determine whether there was a failing on the part of the solicitor(s) contacted by the appellant in respect of her injury.
- The third ground proffered should also be rejected. I do not accept the appellant was unsophisticated or lacked an understanding of the WorkCover reporting and claims process. During the proceedings she presented as an articulate person with significant management experience. I accept she possessed a reasonable level of knowledge about workers compensation processes.
- I am satisfied the appellant’s employer took steps to engage with her about her fall in Melbourne. In my view, she had ample opportunity to report the fall with a view to making a workers' compensation claim in the event she considered it arose out of, or in the course of employment.
Should the Commission waive the requirement in s 131(1) of the Act to lodge the application for compensation within six months after the entitlement to compensation arose?
- 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 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.
- For the reasons set out above, I make the following Orders:
- The appeal is dismissed.
- The decision of the Regulator dated 29 August 2017 is affirmed.
- The Appellant is to pay the Respondent's cost of and incidental to this appeal.
 Workers' Compensation and Rehabilitation Act 2003 s 141(1)(a).
 Simon Blackwood (Workers' Compensation Regulator) v Adams  ICQ 001; Carlton v Blackwood  ICQ 001.
  ICQ 004.
  VR 34, 37 ('Black').
 Quinlivan v Portland Harbour Trust  VR 25, 28 ('Quinlivan').
 (1996) 15 WAR 1, 3.
- Published Case Name:
Karen Anne Wilson v Workers' Compensation Regulator
- Shortened Case Name:
Wilson v Workers' Compensation Regulator
 QIRC 108
22 Jul 2019