De Sousa v Workers' Compensation Regulator - [2019] QIRC 119

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	De Sousa v Workers' Compensation Regulator [2019] QIRC 119
PARTIES:	De Sousa, Janete Alves Appellant v Workers' Compensation Regulator Respondent
CASE NO:	WC/2017/231
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	22 August 2019
HEARING DATE:	3 June 2019 25 June 2019 (written submissions of the Appellant) 9 July 2019 (written submissions of the Respondent) 16 July 2019 (written submissions of the Appellant in reply)
MEMBER: HEARD AT:	Pidgeon IC Brisbane
ORDERS:	1. The appeal is dismissed. 2. The review decision of the Respondent dated 14 November 2017 rejecting the Appellant's application for compensation is upheld. 3. The Appellant is to pay the Respondent's costs of and incidental to this appeal.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – Where application for compensation lodged out of time – Whether reasonable cause for failure to lodge application within time limit.
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003 Augustynski v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 207 Green v Workers' Compensation Regulator [2019] ICQ 3. Jeffrey Beattie AND Q-COMP (WC/2012/469) Nuttall v Workers' Compensation Regulator [2017] QIRC 069 Qantas Airways Limited v QComp (2006) 181 QGIG 301. Re van Gelder and Commonwealth of Australia (1985) 7 ALN N374 State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447. Whitehead v Workers' Compensation Regulator [2017] QIRC 071
APPEARANCES:	Mr J Miles of Counsel, instructed by Johnathan C Whiting & Associates, for the Appellant. Ms D Callaghan of Counsel, directly instructed by the Workers' Compensation Regulator.

Reasons for Decision

Ms De Sousa (the Appellant) was employed by Oakey Beef (the employer) as a slicer in the employer's abattoir at Oakey from in or about June 2007 to in or about September 2017.
In the premises, the Appellant was, at all material times, a "worker" as defined by s 11 of the Workers' Compensation and Rehabilitation Act 2003 ("WCRA").
The Appellant states that over a period of time during her employment with the employer, she sustained a personal injury to her right shoulder.
The parties agree that the date of entitlement arose on 4 November 2016 when the Appellant consulted Dr Lucy-Anne Tolcher GP.[1]
[1] Written Submissions of the Appellant, [6]; Written Submissions of the Respondent, [8]; T1-6, ll 28-43.
The Appellant lodged her application for compensation on 19 June 2017, six weeks and five days after the six-month time limit for lodging the application for compensation expired on 4 May 2017.
The Appellant seeks an order to set aside the decision of the Respondent dated 14 November to reject her application for compensation.
In that decision, the Respondent set aside a decision of WorkCover Queensland rejecting the application for compensation on the grounds that the injury was not an "injury" as per s 32 of the WCRA.
Instead, the Respondent substituted a decision rejecting the application for compensation and decided not to waive the time limit in s 131(1) of the WCRA as it was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Sousa v Workers' Compensation Regulator

Details

AGLC: De Sousa v Workers' Compensation Regulator [2019] QIRC 119
Case: [2019] QIRC 119
Decision Date: 22 August 2019

CaseChat Overview and Summary

In the matter of De Sousa v Workers' Compensation Regulator, the appeal was heard by the Industrial Commission of Queensland. The Appellant, Ms De Sousa, sought to challenge the decision of the Workers' Compensation Regulator, which rejected her application for compensation due to it being lodged outside of the statutory time limit. The central issue for determination was whether Ms De Sousa had a reasonable cause for the delay in lodging her application, thus warranting a waiver of the time limit under section 131(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

The court considered the criteria for determining reasonable cause, including whether the Appellant's delay was due to mistake, her absence from the state, or another reasonable cause. The Appellant needed to demonstrate that the factors leading to the delay were reasonable and that the time limit should be waived. The Commission examined the Appellant's evidence and submissions to assess if the delay was attributable to circumstances that could be considered reasonable. The court also weighed the Respondent's arguments, which contested the Appellant's claims of reasonable cause.

After thorough consideration of the evidence, the Commission found that Ms De Sousa did not provide sufficient evidence to satisfy the onus of proof that her delay was due to a reasonable cause. The Commission held that the Appellant's reasons for the delay were not compelling enough to warrant a waiver of the statutory time limit. Consequently, the appeal was dismissed, and the decision of the Workers' Compensation Regulator was upheld. The Appellant was ordered to pay the Respondent's costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The review decision of the Respondent dated 14 November 2017 rejecting the Appellant's application for compensation is upheld.

3. The Appellant is to pay the Respondent's costs of and incidental to this appeal.

Background

Background to the litigation

The Appellant bears the onus of proof, on the balance of probabilities, to prove that her application was valid and enforceable.[4] That is, she needs to satisfy the Commission that the factors which she says caused the delay in making her claim for compensation are reasonable and that the Commission should decide that the time limit be waived. [4] State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447; Qantas Airways Limited v QComp (2006) 181 QGIG 301.Background and Chronology of Events Whether there was an injury is not in issue in this appeal. However, a chronology of events helps to understand the arguments put forward by both the Appellant and the Respondent regarding whether there was reasonable cause for the application to be lodged outside of the time limits. The following background is taken from the Respondent's Notice to Admit Facts and the Appellant's Response,[5] as well as the parties' Statements of Facts and Contentions.[5] Notice to Admit Facts filed by Respondent; Reply filed by Appellant. On 23 June 2014 (listed elsewhere as 5 June), the Appellant consulted general practitioner, Dr Maphosa, advising that she was a slicer in the meatworks and had pain in the right shoulder. Dr Maphosa recorded a differential diagnosis of repetitive strain injury or rotator cuff injury and referred the Appellant for an ultrasound. The ultrasound of the right shoulder was reported on 18 June 2014 as showing bulging of the subacromial bursa consistent with impingement syndrome. The Appellant also attended upon Mr Matthew Marten, chiropractor, at Work Healthy Australian on 11 June 2014 with shoulder pain caused by "repetitive movement with low muscle loading" which first occurred about three years before, and which the Appellant said was aggravated by her work practices of slicing. The Appellant continued to work as a slicer for the employer. On 12 October, the Appellant consulted a doctor complaining of pain in the right arm radiating up to the neck. She was prescribed Celebrex (a non-steroidal anti-inflammatory drug). The Appellant was seen by Dr Lucy Tolcher on 4 November 2016, who assessed the Appellant as having right shoulder pain with tenderness over the supraspinatus and teres minor insertion sites, decreased range of movement in all directions limited by pain and pain on apprehension test, associated with her work at the abattoir as a right hand slicer. The Appellant told Dr Tolcher that her shoulder pain had been present for one year, got worse in the last two months and then worse again in the last two weeks. The Appellant states that she told Dr Tolcher that the pain was caused by daily repetitive movements as a slicer in an abattoir, while the Respondent states that she told Dr Tolcher that the pain was aggravated by these daily repetitive movements. On 4 November (and according the Appellant, on 8 November) Dr Tolcher referred the Appellant to Body Fit physiotherapy for management of right shoulder pain due to repetitive movements performed as a right hand slicer at the abattoir.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In these circumstances, the decision the Commission is being asked to make is:a) whether the Appellant has reasonable cause for the failure to lodge her application within the time limit; andb) whether the discretion should be exercised in the Appellant's favour.[3][3] Green v Workers' Compensation Regulator [2019] ICQ 3, [8].The Act and Legal Considerations The relevant section of the WCRA provides: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.…(5) And 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 appeal is a hearing de novo. The Commission is required to determine whether the Appellant's failure to lodge the application in time was due to one of the reasons listed in s 131(5). The Appellant bears the onus of proof, on the balance of probabilities, to prove that her application was valid and enforceable.[4] That is, she needs to satisfy the Commission that the factors which she says caused the delay in making her claim for compensation are reasonable and that the Commission should decide that the time limit be waived. [4] State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447; Qantas Airways Limited v QComp (2006) 181 QGIG 301.Background and Chronology of Events Whether there was an injury is not in issue in this appeal. However, a chronology of events helps to understand the arguments put forward by both the Appellant and the Respondent regarding whether there was reasonable cause for the application to be lodged outside of the time limits. The following background is taken from the Respondent's Notice to Admit Facts and the Appellant's Response,[5] as well as the parties' Statements of Facts and Contentions.[5] Notice to Admit Facts filed by Respondent; Reply filed by Appellant. On 23 June 2014 (listed elsewhere as 5 June), the Appellant consulted general practitioner, Dr Maphosa, advising that she was a slicer in the meatworks and had pain in the right shoulder. Dr Maphosa recorded a differential diagnosis of repetitive strain injury or rotator cuff injury and referred the Appellant for an ultrasound. The ultrasound of the right shoulder was reported on 18 June 2014 as showing bulging of the subacromial bursa consistent with impingement syndrome. The Appellant also attended upon Mr Matthew Marten, chiropractor, at Work Healthy Australian on 11 June 2014 with shoulder pain caused by "repetitive movement with low muscle loading" which first occurred about three years before, and which the Appellant said was aggravated by her work practices of slicing. The Appellant continued to work as a slicer for the employer. On 12 October, the Appellant consulted a doctor complaining of pain in the right arm radiating up to the neck. She was prescribed Celebrex (a non-steroidal anti-inflammatory drug).