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The University of Queensland v Workers' Compensation Regulator[2022] QIRC 131

The University of Queensland v Workers' Compensation Regulator[2022] QIRC 131

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

The University of Queensland v Workers' Compensation Regulator [2022] QIRC 131

PARTIES:

The University of Queensland

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2021/97

PROCEEDING:

Appeal against the decision of the Workers' Compensation Regulator

DELIVERED ON:

6 April 2022

HEARING DATES:

14 December 2021

MEMBER:

HEARD AT:

O'Connor VP

Brisbane

ORDERS:

1. The Appeal is dismissed;

2. The Regulator's decision of 18 June 2021 is confirmed;

3. The matter be returned to the self-insurer to proceed further with the determination of the workers entitlement to compensation pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003; and

4. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

  1. (a)
    the parties are to exchange and file written submissions on the costs of the hearing by 4.00 pm on Friday, 22 April 2022; and
  1. (b)
    unless otherwise ordered, the decision on costs be determined on the papers.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – APPLICATION FILED OUT OF TIME – appeal against review decision – where worker employed as an anatomy mortuary technician – where worker made an application for compensation for psychological injuries – where Appellant rejected the application on the basis the worker did not file the application within the time required by s 131 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where worker appealed the appellant's decision – where Respondent determined application valid and enforceable – where Appellant has not waived the requirements of s 131(1) of the Workers' Compensation and Rehabilitation Act 2003

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32, s 131, s 141

CASES:

Armstrong v Local Government Workcare [2014] ICQ 7

Black v City of South Melbourne [1963] VR 34

Commonwealth of Australia v Connors (1989) 86 ALR 247

Green v Workers' Compensation Regulator [2019] ICQ 3

Perdis v Nominal Defendant [2004] 2 Qd R 64

Quinlivan v Portland Harbour Trust [1963] VR 25

Simon Blackwood (Workers' Compensation Regulator) v Ian Andrew Toward [2015] ICQ 8

Telstra Corporation v Roycroft (1997) 77 FCR 358.

Thorsten Groos v WorkCover Queensland (2000) 165 QGIG 106

Van Dongen v Northern Territory of Australia [2005] NTCA 6

APPEARANCES:

Mr SP Gray of Counsel instructed by Ms E Martin of HWL Ebsworth Lawyers for the Appellant.

Mr SP Sapsford, Counsel, directly instructed by Ms C Shedden, Workers' Compensation Regulator, the Respondent.

Reasons for Decision

  1. [1]
    The University of Queensland ('the Appellant') filed a notice of appeal on 15 July 2021 to set aside the decision of the Workers' Compensation Regulator ('the Respondent') dated 18 June 2021 not to waive the time for applying for compensation in accordance with s 131 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCR Act'). It is against this decision that the appellant now appeals to the Commission.

Background

  1. [2]
    On 11 August 2020 Ms Chantal Nicholson ('the Worker') filed an application for workers' compensation for psychological injuries, specifically 'work related stress/adjustment disorder'.
  1. [3]
    Ms Nicholson commenced full‑time employment with the University of Queensland in September 2016 and at the time of the nominated injury, was employed as an Anatomy Mortuary Technician.
  1. [4]
    On 17 December 2020 by written Reasons for Decision, the University of Queensland Self Insurer rejected Ms Nicholson's application as it had been lodged out of time.
  1. [5]
    The decision by the University of Queensland Self Insurer that the application was lodged out of time was based on the determination that Ms Nicholson's injury was first assessed on 14 March 2019.  Ms Nicholson sought a review of the decision of 17 December 2020 to reject the application.
  1. [6]
    On 18 June 2021 the Respondent set aside the University of Queensland Self Insurer's rejection of Ms Nicholson's application for review and substituted a decision that the application was valid and enforceable in accordance with s 131 of the WCR Act.  In making its decision the Respondent determined Ms Nicholson's injury was first assessed on 9 March 2020.[1] 

The Statutory Scheme

  1. [7]
    Pursuant to s 131 of the Act, an application for workers' compensation must be lodged within the 6 months following the compensation entitlement arising. However, s 131(5) of the Act allows the insurer to waive the requirements of s 131(1) if it is satisfied that the failure to lodge the application was due to mistake or reasonable cause. In this appeal there is no suggestion that the appellant was absent from Queensland during the relevant period.
  1. [8]
    Section 131 of the WCR Act provides:

131 Time for applying

  1. (1)
    An application for compensation for an injury is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation for the injury 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)
    Also, an insurer may waive subsection (1) for a particular application if -
  1. (a)
    it is satisfied that a doctor, nurse practitioner or dentist has assessed the injury as resulting in total or partial incapacity for work; and
  1. (b)
    the claimant lodged the application within 20 business days after the first assessment under paragraph (a).
  1. (6)
    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.

Appellant's Facts and Contentions

  1. [9]
    The Appellant states that Ms Nicholson attended an appointment with Dr San San Oo at the Oxley Family Medical Centre on 14 March 2019. The Appellant states that Ms Nicholson was complaining of work stress, anger, crying and not sleeping.  Dr Oo considered Ms Nicholson was suffering from anxiety and she was certified by Dr Oo as being unfit to work for a period of two days.
  1. [10]
    On 15 July 2021 Dr Oo provided a report to the Appellant in which she stated that Ms Nicholson's consultation on 14 March 2019 was for 'anxiety affecting her sleep and angry [sic] and crying',[2] and that her symptoms were related to and/or contributed to by work stress in relation to her employment.
  1. [11]
    In determining the application Ms Nicholson was referred to psychiatrist Dr Valappil, who in a report dated 12 October 2020, expressed the view that Ms Nicholson's symptoms began in 2019 and the injury had manifested into its fully developed state by November/December 2019.  According to the medical evidence, the injury is the same injury Ms Nicholson consulted Dr Oo about on 14 March 2019.[3]
  1. [12]
    The Appellant has not waived the requirements of s 131(1) of the WCR Act.
  1. [13]
    The Appellant contends the injury was assessed on 14 March 2019.  Section 141(1)(a) and (b) of the WCR Act states:

Time from which compensation payable

  1. (1)
    The entitlement to compensation for an injury arises on the day the worker's injury is assessed by -
  1. (a)
    a doctor;
  1. (b)
    if the injury is a minor injury - a nurse practitioner acting in accordance with the workers' compensation certificate protocol; …
  1. [14]
    In Simon Blackwood (Workers' Compensation Regulator) v Ian Andrew Toward ('Blackwood v Toward'),[4] Martin J examined the proper construction of s 141 of the Act and relevantly said:

In order for a doctor to "assess" an injury as an "injury" within the meaning of the Act there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment. …[5]

  1. [15]
    The Appellant contends Dr Oo made an assessment of the injury and concluded that Ms Nicholson's, 'symptoms were related to and or contributed by work stress, ongoing at her employment [sic]'.  Therefore, the injury was assessed on 14 March 2019, the injury resulted in incapacity for work on 14 March 2019 and Ms Nicholson's entitlement to compensation arose on 14 March 2019.[6]
  1. [16]
    The application was lodged more than six months after Ms Nicholson's entitlement to compensation arose.  Ms Nicholson's failure to lodge her application within the required time is not occasioned by mistake, her absence from the State or a reasonable cause.  In the absence of evidence, it must be determined that none of the factors in s 131(6) of the WCR have been met.

Respondent's Facts and Contentions

  1. [17]
    It was contended by the Regulator that:
  1. (a)
    Ms Nicholson was not aware as a consequence of the consultation with Dr Oo on 14 March 2019 that she had suffered a compensable injury;
  1. (b)
    The consultation on 14 March 2019 was brief, no diagnosis was given, no treatment was recommended, and a generic medical certificate was issued for two days off work;
  1. (c)
    From the consultation on 14 March 2019 until her attendance on a General Practitioner on 9 March 2020, Ms Nicholson did not seek any further medical opinion, assessment or treatment and continued to work for her employer without incapacity;
  1. (d)
    It was not until 9 March 2020 that Ms Nicholson reached a point where she was unable to continue in her employment due to psychiatric illness;
  1. (e)
    Ms Nicholson was not possessed of the requisite knowledge or experience to form a conclusion that she was suffering from an injury on 14 March 2019 and the generic medical certificate issued to her by Dr Oo did not provide her with information.
  1. [18]
    The Respondent contends the clinical note of Dr Oo with respect to the consultation of 9 March 2020 relevantly reveals a consultation in relation to 'work stress' and 'anxiety' and certification by way of generic medical certificate for incapacity of one day. 
  1. [19]
    The Respondent submits Ms Nicholson had no prior knowledge of the workers' compensation system in Queensland having moved to Queensland in 2010 and not having made a prior application for compensation.
  1. [20]
    In her letter dated 15 July 2021, Dr Oo specifically refers to 'symptoms' and not injury and this supports the clinical note of 14 March 2019 where there was no assessment (by way of psychometric testing or otherwise), no formal diagnosis and no provision of medication or other treatment. 
  1. [21]
    The absence of a formal diagnosis on 14 March 2019 is corroborated by the expert evidence of Dr Valappil who confirms that Ms Nicholson's psychiatric/psychological injury first manifested in its fully developed state by November/December 2019.
  1. [22]
    When Ms Nicholson became aware that she suffered from a diagnosable psychiatric condition on 9 March 2020, in particular following the Kessler Psychological Distress Scale (K10) assessment administered by Dr Oo and the definitive diagnosis by Dr Peter Lin, General Practitioner of an adjustment disorder on 18 March 2020, she applied for compensation within six months of that date.

Issue for determination

  1. [23]
    The issue for determination is whether Ms Nicholson has established mistake and/or reasonable cause in accordance with s 131(6) of the WCR Act for her failure to lodge her application for compensation within the time prescribed by s 131(1) of the WCR Act.

Appellant's Submissions

  1. [24]
    The Appellant submits the Regulator has conceded that Ms Nicholson was assessed for the purposes of s 141 of the WCR Act on 14 March 2019.  Any attempt to distinguish between that first assessment undertaken by Dr Oo and later assessments are inconsistent with that concession.
  1. [25]
    Ms Nicholson was aware she was suffering from some form of injury necessitating her taking time off work which she consciously chose to take as recreation leave instead of paid personal/carer's leave.[7]
  1. [26]
    The contentions of the Regulator are that there is some importance in the Kessler Psychological Distress Scale (K10) assessment undertaken by Dr Oo on 9 March 2020 is misguided.  The Appellant states it is well‑recognised that to find a worker has suffered an injury in accordance with the provisions of the WCR Act, that injury does not have to meet a formal diagnosis as required by the DSM-IV or DSM-V.[8]
  1. [27]
    At the time of her assessment on 14 March 2019 Ms Nicholson was entitled to compensation in accordance with the WCR Act as observed by Martin J in Blackwood v Toward.[9]
  1. [28]
    The Appellant submits that Ms Nicholson's evidence shows that she was aware of the Workers' Compensation scheme.  She was advised in her induction on 5 September 2016 about the ability to claim compensation.[10]
  1. [29]
    The Appellant contends that there are no circumstances that would warrant the discretion to exercise the extension of time.
  1. [30]
    The Appellant seeks the following orders:
  1. (a)
    the appeal is allowed;
  1. (b)
    the decision of the Review Unit is set aside and substituted with the decision that the application for compensation lodged by Ms Chantal Nicholson is not valid and enforceable in accordance with the provisions of s 131 of the WCR Act; and
  1. (c)
    the Respondent pay the Appellant's costs.[11]

Respondent's Submissions

  1. [31]
    The Respondent submits Ms Nicholson gave evidence that at no time prior to 9 March 2020 was she aware that she was suffering from a psychological or psychiatric injury and that her symptoms in March 2019 were vastly different to those in March 2020.  By that time, she was unable to work due to her symptoms, was assessed by the Kessler Psychological Distress Scale (K10) and was diagnosed with psychiatric injury.
  1. [32]
    The evidence of Dr Valappil in his report of 12 October 2020 states that the injury he diagnosed pursuant to DSM-5 of Adjustment Disorder with Mixed Anxiety and Depressed Mood had not manifested into its fully developed state until November -December 2019.
  1. [33]
    Submissions for the Respondent concede that Ms Nicholson's application was filed out of time,[12] however counsel for the Regulator submits that the factual matrix around her diagnosis leaves open the possibility for a 'mistake' as contemplated in s 131(6)(a), and that the Appellant has failed to discharge its burden to prove otherwise.[13]
  1. [34]
    The Respondent submits Ms Nicholson was not possessed of the requisite knowledge, skills or experience to recognise she was suffering an injury and by reference to her demeanour and symptoms could not be expected at that time to contemplate such a proposition.
  1. [35]
    The Respondent accepts the authority of Black v City of South Melbourne ('Black v Melbourne'),[14] which states 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 WCR Act.  However, the decision of the Court of Appeal in Van Dongen v Northern Territory of Australia ('Van Dongen') is apposite where it was noted by Riley J:

Mere ignorance of the law alone will not be sufficient. However ignorance of the law when combined with other factors may amount to reasonable cause.  For example, in Melbourne & Metropolitan Tramways Board v Witton [1963] VicRp 59, [1963] VR 417 the Full Court held that there may be reasonable cause for failure to give notice of an intended action where the proposed plaintiff was ignorant of the requirements of the relevant legislation and was reasonably waiting for her injuries to stabilise before consulting a solicitor and taking proceedings.  In that case Sholl J said (at 420):

 "In my opinion, the conduct of the applicant was conduct which a reasonable man would consider proper and sensible in the circumstances, and sufficient to constitute such a cause for her failure to give notice as was consistent with a reasonable standard of conduct."[15]

  1. [36]
    For these reasons the Respondent submits the Appellant has failed to establish in accordance with its onus of proof that the failure to lodge the application for compensation in accordance with s 131(1) of the WCR Act was not due to mistake and/or reasonable cause.
  1. [37]
    The Respondent seeks:
  1. (a)
    the appeal be dismissed;
  1. (b)
    the Regulator's decision of 18 June 2021 be confirmed;
  1. (c)
    the Appellant pay the Respondent's costs of the hearing; and
  1. (d)
    the matter be returned to the self-insurer to further proceed with a determination of the Worker's entitlement to compensation pursuant to s 32 of the WCR Act.

Consideration

  1. [38]
    The question for determination is whether the application for worker's compensation was lodged outside of the six-month time limit; and, if so, whether the Commission can be satisfied that that was because of a mistake or a reasonable cause.
  1. [39]
    The Regulator has conceded that Ms Nicholson did not make her application for workers' compensation within six months of her entitlement to compensation arising.
  1. [40]
    In light of the concession, let me turn to addressing the question whether the failure to lodge the workers' compensation application within the statutory time limit was caused by mistake or a reasonable cause.
  1. [41]
    The Federal Court in Telstra Corporation Limited v Roycroft ('Roycroft'),[16] undertook an analysis of the ambit of 'mistake' in the cognate Commonwealth provisions. What can be gleaned from Roycroft is that 'mistake' includes mistake of law as well as of fact. However, ignorance of the law in the sense of a failure to advert to the existence of the right to claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other 'reasonable cause'.[17] The authorities show, there is a fine line between 'mistake' and 'ignorance'. If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant.
  1. [42]
    However, a distinction needs to be drawn between a circumstance where a worker has no knowledge of a work-related injury or the serious of it and not being aware at all that it was possible to make a claim.
  1. [43]
    The central thrust of the Respondent's case was that a reasonable cause existed to explain the failure to lodge within time. A 'reasonable cause' is a cause which a reasonable person would regard as sufficient – a cause which is consistent with a reasonable standard of conduct.[18]
  1. [44]
    Scholl J in Quinlivan v Portland Harbour Trust ('Quinlivan'),[19] said the following in relation to the meaning of 'reasonable cause':

… refer(s) 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.[20]

  1. [45]
    In Black v City of South Melbourne,[21] the Full Court of the Supreme Court of Victoria held that in considering reasonable cause:

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.

  1. [46]
    The case of Commonwealth of Australia v Connors ('Connors'),[22] concerned the cognate Commonwealth legislation. In Connors, the respondent had, in 1970, a severe heart attack at work. He was absent from work for two months on full pay. When he returned to work, he was retrenched on the grounds of invalidity. In October 1985 he sought compensation based on his heart attack and made a formal claim in February 1986. In the Administrative Appeals Tribunal, it was found that:

“There appear to be several factors which explain the failure of the applicant to cause an adequate notice to be given to the appropriate person as soon as practicable after his attack:

(1) The fact that he was not suffering any loss at work because of it.

  1. (2)
    The fact that he knew that those in authority over him were as aware as he was of the fact of the heart attack and his inability, on medical advice, to return to work for two months.

(3) His ignorance of any right to claim compensation at that stage or later and accordingly his failure to consider or seek advice as to the adequacy of the notice which his employer had however clearly received in the sense that he had full knowledge of the heart attack.”[23]

  1. [47]
    In the Full Court of the Federal Court, the majority (Northrop and Ryan JJ) held that those facts were not sufficient to constitute 'reasonable cause' under the relevant legislation. They said:

In our opinion, those facts are not sufficient to constitute other ‘reasonable cause’ under s 16 of the 1930 Act. The notice of accident had to be given as soon as practicable after 6 November 1970. On any view, if the respondent had known of the existence and extent of his rights under the 1930 Act, he could have given notice of the accident at any time after he returned to work in January 1971 and likewise could have made his claim within six months of 6 November 1970. In order to come within the provisos to s 16(1), it is necessary that the want of giving notice and the want of making the claim ‘was occasioned by mistake ... or other reasonable cause’ (emphasis added). The findings of fact do no more than support a conclusion that he was ignorant, that is, that he did not know of his right to make a claim for compensation. Of course it followed from that conclusion that he was ignorant also of the requirements of giving notice and of making a claim within the times prescribed in s 16(1). The failure to give the notice and the failure to make the claim, on these findings, was occasioned by ignorance. Ignorance, in the sense we have used it as signifying failure to advert to the existence of the right cannot of itself constitute ‘reasonable cause’ under the 1930 Act.

As was said by the Court in Black's case (at 38), when considering ‘reasonable cause’: ‘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. In Quinlivan v. Portland Harbour Trust [1963] VR 25 at 28, Sholl J, used these words: ‘The sub-section 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.’

Applying that test, it is clear on the findings made that the only reason for the failure to give the notice and to make a claim was ignorance of the law. That does not constitute ‘reasonable cause. [24] (emphasis added)

  1. [48]
    Whether a 'reasonable cause' exists for the purposes of s 131(5) will always depend on the facts of the particular case and will require consideration of the knowledge of the applicant at the relevant time and the actions taken or not taken within the six-month time limit.[25]
  1. [49]
    In her oral evidence to the Commission, Ms Nicholson was at no time prior to 9 March 2020 aware of the fact that she was suffering from a psychological or psychiatric injury. Moreover, her symptoms were vastly different to the symptoms she was experiencing in March 2019. It was in March 2020 that Ms Nicholson became incapacitated to work. 
  1. [50]
    The clinical notes of Dr Oo of 14 March 2019 record that Ms Nicholson presented with symptoms of anxiety and insomnia noting 'work stress angry, crying, not sleeping' with the reason for the visit being anxiety.
  1. [51]
    The consultation on 14 March 2019 was said to be brief, it is apparent from the clinical records that no diagnosis was given. The reason for the visit was recorded as 'anxiety'. A generic medical certificate was issued for 14 March to 15 March 2019. However, Ms Nicholson elected to take recreational leave in lieu of relying on the medical certificate.[26]
  1. [52]
    During examination-in-chief, Ms Nicholson was asked about the consultation with Dr Oo on 14 March 2019 and her subsequent consultation in March 2020:

MR SAPSFORD:When you consulted with Dr Oo on 14 March 2019, were you prescribed any medication?

MS NICHOLSON:No.

MR SAPSFORD:And did Dr Oo inform you at any stage you had suffered an injury of a psychiatric nature?

MS NICHOLSON:No.

MR SAPSFORD:Did you discuss with Dr Oo the possibility of making a claim for workers’ compensation?

MS NICHOLSON:No.

MR SAPSFORD:Well, after 14 March 2019, what happened after that? Did you return to work?

MS NICHOLSON:I went back to work the next day.

MR SAPSFORD:I see. And did you continue working and, if so, for how long? Specifically, Ms Nicholson, it would be good if you’d address how long you continued working prior to any further medical visits you may have made?

MS NICHOLSON:Till the next year when I went to the doctor in March the following year.

MR SAPSFORD:Did you also go to Dr Oo in March of the following year?

MS NICHOLSON:Yes.

MR SAPSFORD:In the interim, how were you coping at work?

MS NICHOLSON:Okay.

MR SAPSFORD:What was the situation? Why did you go to Dr Oo in March of 2020?

MS NICHOLSON:I started to get – I started to get frustrated with my – I started to realise I wasn’t – something wasn’t right because I started to get frustrated with my daughter which isn’t normal.

MR SAPSFORD:Yes. Was there anything else?

MS NICHOLSON:Yeah. I was – things were happening to me like I was getting tight jaw, I was starting to not want to go to work, getting really short and impatient at home. Yeah.

  1. [53]
    In the period between 14 March 2019 and her attendance on Dr Oo on 9 March 2020, Ms Nicholson continued to work without any significant interruption. Dr Oo told the Commission that the clinical records did not record Ms Nicholson attending at the Oxley Medical Centre between March 2019 and March 2020 with any psychological or psychiatric symptoms.
  1. [54]
    As the evidence before the Commission unfolded, Ms Nicholson continued in her employment until she reached a point where she realised that 'something wasn't right'. She became frustrated. She developed a tight jaw; was reluctant to go to work; and became 'short' and impatient with people.
  1. [55]
    Ms Nicholson attended on Dr Oo on 9 March 2020 at which time the K10 test was undertaken. The evidence of Dr Oo was that the outcome of the K10 recorded Ms Nicholson's score as 44 out of 50 indicating psychological distress to a severe degree.[27] I accept that following this consultation, Ms Nicholson became aware that she had suffered from a diagnosable psychiatric condition.
  1. [56]
    The evidence before the Commission is that Ms Nicholson attended on Dr Peter Lim, Oxley Family Medical Centre on 15 March 2020. The clinical notes record that Ms Nicholson gave a history of a co-worker not pulling her weight; gets worked up day prior to work; headache on arriving work; not eating; can't wind down until 2am; dreaming about work; and frustrated to the point of crying. She was diagnosed with anxiety and prescribed diazepam.[28]
  1. [57]
    Ms Nicholson again attended on Dr Lim on 18 March 2020 and was, for the first time, diagnosed as suffering an adjustment disorder. The clinical notes record, 'Wants to go ahead with w/c. Has not discussed with union yet'. A workers' compensation medical certificate was issued.
  1. [58]
    It will be recalled that Dr Valappil opined in his report that Ms Nicholson's psychological and or psychiatric injury manifested itself in its fully formed state in November-December 2019.
  1. [59]
    On 22 March 2020 Ms Nicholson again attended on Dr Lim. The clinical records note that Ms Nicholson told Dr Lim that she: 'Has discussed with Union; Will address everything in writing first prior to WC application.' The notes further record, 'Has rung back later advising does not want WC currently. Needs med cert for rest of week'.[29]
  1. [60]
    On 15 July 2021 Dr Oo wrote to the Manager of Work Injury Management at the University of Queensland as follows:

Thank you for your email sent to us on 14/07/2021 requesting a medical report relating to the consultation recorded on 14/03/2019.

I hereby confirm that Ms Chantal Nicholson consulted me on 14/03/2019 for anxiety affecting her sleep and angry and crying.

According to the surgery records and my recall, I considered her symptoms were related to and or contributed by work stress, ongoing at her employment.

  1. [61]
    In cross-examination, the following exchange took place between Counsel for the Appellant and Dr Oo:

MR GRAY:Now, just with that final report that you were asked about, the letter you wrote on the 15th of July 2021, that was in response to a request you had received to clarify the diagnosis you made at the attendance on the 14th of March 2019, wasn’t it? Doctor, did you hear the question?

DR OO:Yeah. I thought you were – are you waiting for me? Well, it was the – I must – I must go and get the – the – the letter from them saying that – actually, I’ve got that letter written by me on the 15th of July 2021 there. So I confirm that she – Mrs – Chantal Nicholson consulted me for anxiety affecting her sleep and angry and crying.

MR GRAY:Yes. Because you were asked to identify the reasons or the contributing factors to Ms Nicholson’s anxiety, do you remember that request?

DR OO:Yes. I do. It is – I also mention in the last paragraph of the – the – the – the – the letter written by me, I say that it contributed by work stress.

MR GRAY:Yes. So what you had certified in that letter was that looking back at your consultation with Ms Nicholson on the 14th of March 2019 she was exhibiting symptoms of – she was angry, that’s correct?

DR OO:The – the angry and crying and the – and the sleep – affecting sleep, these are the history taking, history. History from the patient.

MR GRAY:Yes. And so she tells you that what’s occurring in the workplace is having an adverse effect on her mental health and wellbeing because it’s causing her - - -?

DR OO:The – yeah. The history said the work stress and affecting her sleep and angry and crying.

MR GRAY:Yes. And so you’ve described the reason for visit and anxiety and you said before that that’s not a diagnosis but it is still an indication that Ms Nicholson is suffering from a work-related injury that is causing her to suffer symptoms, though, isn’t it?

DR OO:At that stage, there is – that was the first episode that she came in to see me for that and then I – I said about anxiety. Anxiety’s a symptom at that stage.

MR GRAY:Yes?

DR OO:So I could not say that – I could not diagnose that it is, you know, a work-related psychological injury at the time.

MR GRAY:Well, Doctor, what you did obtain from Ms Nicholson was a description of that were caused by her workplace so there’s a connection between the symptoms that are being exhibited and her workplace as she describes to you, isn’t there?

DR OO:Sorry, I cannot answer that question. It is beyond my scope of expertise.

MR GRAY:Well, Doctor, your – a patient comes to you and says that I – as you’ve recorded, she tells you she has work stress, correct?

DR OO:Yes.

MR GRAY:And she says that she’s angry, she’s crying, she’s not sleeping. Now, these are all symptoms of a psychiatric or psychological type nature, aren’t they, because that’s what typically what happens with a psychiatric or psychological injury?

DR OO:Well, it is a – it is a – the mental stress symptom.

MR GRAY:Yes?

DR OO:It is a reaction – a reaction to the stress.

MR GRAY:Yes. And?

DR OO:So it is – yeah.[30]

  1. [62]
    No diagnosis was made on 14 March 2019. Whilst some symptomology was identified, namely, anxiety no specific diagnosis of a work-related injury was made or communicated.  That is the uncontradicted evidence of both Dr Oo[31] and Ms Nicholson.[32]
  1. [63]
    I remain unconvinced that it has been demonstrated that a conclusion or opinion that Ms Nicholson has suffered an injury within the meaning of the WCR Act was either formed or communicated to her on 14 March 2019.
  1. [64]
    In Armstrong v Local Government Workcare,[33] 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.[34]

  1. [65]
    It was submitted by the Regulator that Ms Nicholson lodged her application as soon as she became aware, she was suffering from a diagnosable psychiatric and or psychological injury. Whilst that submission is rejected by the Appellant, I accept that Ms Nicholson took reasonable steps to lodge her claim within the six months. Unremarkably she sought advice from her Union before making her application for compensation on 11 August 2020.
  1. [66]
    As was observed in Van Dongen,[35] each case must be assessed upon its own facts and circumstances. The particular circumstances of the case as they impact upon the reasonableness or otherwise of the conduct of the worker must be considered in order to determine whether reasonable cause is established.
  1. [67]
    Applying that test as expressed in Quinlivan,[36] it is clear on the findings made that the only reason for the failure to give the notice and to make a claim for workers' compensation was that she was unaware from her initial consultation with Dr Oo in March 2019 that she had sustained a psychiatric or psychological injury. Nothing has been raised by the Appellant to displace that conclusion.
  1. [68]
    Ms Nicholson's belief was reasonable having regard to the lack of communication from Dr Oo; the fact that she was not prescribed any medication; and that she continued to perform her work duties without any incapacity. In the circumstances, I am of the view that a reasonable cause has been established. The matters identified are, in my view, the kind of matters which might be expected to delay the giving of notice by a reasonable person and therefore establish that Ms Nicholson had reasonable cause not to lodge her application for workers' compensation within the legislative timeframe. I am satisfied that there was a proper basis to waive the time limit as provided for in s 131(1) of the Act.

Orders:

1.The Appeal is dismissed;

2.The Regulator's decision of 18 June 2021 is confirmed;

3.The matter be returned to the self-insurer to proceed further with the determination of the workers entitlement to compensation pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003; and

4.Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a) the parties are to exchange and file written submissions on the costs of the hearing by 4.00 pm on Friday, 22 April 2022; and

(b) unless otherwise ordered, the decision on costs be determined on the papers.

Footnotes

[1]  Respondent's statement of facts and contentions filed 18 November 2021, 3 [15].

[2]  Exhibit 9.

[3]  Appellant's statement of facts and contentions filed 23 September 2021, sch 1 [9].

[4]  [2015] ICQ 8 ('Blackwood v Toward').

[5]  Ibid [44].

[6]  Appellant's Facts and Contentions filed 23 September 2021 [5]-[8].

[7]  Appellant's submissions filed 14 December 2021 [39].

[8]Thorsten Groos v WorkCover Queensland (2000) 165 QGIG 106.

[9]Blackwood v Toward (n 4) [27]-[30].

[10]  Exhibit 2.

[11]  Appellant's submissions tendered at hearing [68].

[12]  Respondent's outline of Submissions filed 14 December 2021, 2 [5].

[13]  Ibid 6 [36]-[39].

[14]  [1963] VR 34, 37 ('Black v Melbourne').

[15]  Van Dongen v Northern Territory of Australia [2005] NTCA 6 [29] ('Van Dongen').

[16]  (1997) 77 FCR 358 ('Roycroft').

[17]Commonwealth of Australia v Connors (1989) 86 ALR 247 ('Connors').

[18]Perdis v Nominal Defendant [2004] 2 Qd R 64, applying Quinlivan v Portland Harbour Trust [1963] VR 25.

[19]  [1963] VR 25 ('Quinlivan').

[20]  Ibid 28.

[21]Black v Melbourne (n 14) 37.

[22]Connors (n 17).

[23]  Ibid 251.

[24]  Ibid 251-2.

[25]Green v Workers' Compensation Regulator [2019] ICQ 3 [11].

[26]  TR 1-13, LL10-11.

[27]  TR 1-24, LL 4-5.

[28]  Exhibit 6.

[29]  Ibid.

[30]  TR1-25, TR 1-26 LL 1-3.

[31]  Exhibit 7.

[32]  TR-9 LL 12-19.

[33]  [2014] ICQ 7 (citations omitted).

[34]  Ibid [26]-[27].

[35]Van Dongen (n 15).

[36]Quinlivan (n 19) 29.

Close

Editorial Notes

  • Published Case Name:

    The University of Queensland v Workers' Compensation Regulator

  • Shortened Case Name:

    The University of Queensland v Workers' Compensation Regulator

  • MNC:

    [2022] QIRC 131

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor VP

  • Date:

    06 Apr 2022

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
Black v City of South Melbourne (1963) VR 34
2 citations
Jump To
Cite 1 - (1963) VR 34
Cite 2 - (1963) VR 34
Commonwealth of Australia v Connors (1989) 86 ALR 247
2 citations
Jump To
Cite 1 - (1989) 86 ALR 247
Cite 2 - (1989) 86 ALR 247
Green v Workers' Compensation Regulator [2019] ICQ 3
2 citations
Jump To
Cite 1 - [2019] ICQ 3
Cite 2 - [2019] ICQ 3
Groos v WorkCover Queensland (2000) 165 QGIG 106
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 106
Cite 2 - (2000) 165 QGIG 106
Melbourne & Metropolitan Tramways Board v Witton [1963] VicRp 59
1 citation
Jump To
Cite 1 - [1963] VicRp 59
Melbourne & Metropolitan Tramways Board v Witton (1963) VR 417
1 citation
Jump To
Cite 1 - (1963) VR 417
Perdis v Nominal Defendant[2004] 2 Qd R 64; [2003] QCA 555
2 citations
Jump To
Cite 1 - [2004] 2 Qd R 64
Cite 2 - [2004] 2 Qd R 64
Quinlivan v Portland Harbour Trust (1963) VR 25
4 citations
Jump To
Cite 1 - (1963) VR 25
Cite 2 - (1963) VR 25
Cite 3 - (1963) VR 25
Cite 4 - (1963) VR 25
Telstra Corporation v Roycroft (1997) 77 FCR 358
2 citations
Jump To
Cite 1 - (1997) 77 FCR 358
Cite 2 - (1997) 77 FCR 358
Van Dongen v Northern Territory of Australia [2005] NTCA 6
2 citations
Jump To
Cite 1 - [2005] NTCA 6
Cite 2 - [2005] NTCA 6
Workers' Compensation Regulator v Toward [2015] ICQ 8
2 citations
Jump To
Cite 1 - [2015] ICQ 8
Cite 2 - [2015] ICQ 8

Cases Citing

Case NameFull CitationFrequency
The University of Queensland v Workers' Compensation Regulator [2022] ICQ 187 citations
The University of Queensland v Workers' Compensation Regulator (No 2) [2022] QIRC 2452 citations
The University of Queensland v Workers' Compensation Regulator (No 2) [2022] ICQ 273 citations
1

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