DeAlwis v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 158

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	DeAlwis v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 158
PARTIES:	DeAlwis, Duwadisawage Sricassimal (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent)
CASE NO:	WC/2014/345
PROCEEDING:	Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)
DELIVERED ON:	26 August 2015
HEARING DATES:	1 and 2 June 2015
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Thompson
ORDERS:	1. Application for compensation not valid or enforceable. 2. Appellant to pay the Regulator's costs incidental to and associated with the hearing of the jurisdictional matter.
CATCHWORDS:	WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Validity and enforceability of the application for compensation in accordance with s 131 of the Act - Time for applying - Standard of proof - Witness evidence - Application for compensation not valid or enforceable - Appellant to pay the Regulator's costs incidental to and associated with the hearing of the jurisdictional matter.
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 32, s 131, s 141, s 550 Simon Blackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 8 Groos v WorkCover Queensland (2000) 165 QGIG 106 Melbourne and Metropolitan Tramways Board v Witton (1963) VR 417
APPEARANCES:	Mr D. DeAlwis, Appellant. Mr P. Major, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.

Decision

On 30 April 2015 Duwadisawage Sricassimal (Siri) DeAlwis (DeAlwis) lodged a Notice of Appeal with the Industrial Registrar pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) released on 27 October 2014.
The decision of the Regulator confirmed the decision of WorkCover Queensland (WorkCover) to reject an application by DeAlwis for compensation in accordance with s 32 of the Act.
The Regulator raised a preliminary issue of whether the claim for compensation lodged by DeAlwis had been lodged within the allowed time and therefore valid and enforceable.
The purpose of this hearing was to make a determination in respect of the preliminary point.
Appellant
On 10 March 2015 DeAlwis filed with the Industrial Registrar a Statement of Stressors [Exhibit 2] listing stressors said to be causative of his psychiatric/psychological injury. The list identified that in the period from December 2008 until January 2009 the action of management had the effect of "punishing me [DeAlwis] for my criticism finally abandoned the system after five years as explained at item 15 below". The list identified other management actions that were alleged to be unreasonable as occurring in:

·        February 2009;
·        September 2009;
·        September 2010;
·        3 November 2011;
·        8 December 2008 to 20 September 2009/13;
·        17 February 2012;
·        2010 to 2013;
·        15 March 2013;
·        2013;
·        21 September 2013 to 19 February 2014;
·        20 February 2014;
·        20 March 2014; and
·        20 April 2014.

A workers' compensation medical certificate was tendered in proceedings [Exhibit 1] having been issued by Dr Craig Morris on 16 April 2014 which stated the following:

· "Worker's stated date of…

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 DeAlwis v Simon Blackwood (Workers' Compensation Regulator)

Details

AGLC: DeAlwis v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 158
Case: [2015] QIRC 158
Decision Date: 26 August 2015

CaseChat Overview and Summary

The applicant, DeAlwis, sought workers' compensation in relation to a psychological injury, but was uncertain about the exact date on which his entitlement began as no one had accepted liability. The case before the court was an appeal against a decision of the Workers' Compensation Regulator, Simon Blackwood, who had determined that DeAlwis' application for workers' compensation was not valid or enforceable. The key issue before the court was whether DeAlwis' application for compensation lodged on 17 April 2014 complied with section 131(1) of the relevant Act, which specifies that an application must be made within six months of the entitlement arising.

The court considered whether DeAlwis' application was made within six months of the date he was assessed by a person prescribed under section 141(1) of the Act. The starting point for the claim was the issuance of a workers' compensation medical certificate on 16 April 2014 by Dr Craig Morris, which identified the date of injury as 16 April 2009. DeAlwis argued that the only relevant stressor in his claim was one that occurred on 20 February 2014, which led to his decompensation on 16 April 2014. However, the court found that there were numerous other stressors identified by DeAlwis which provided an extensive history of work-related incidents that contributed to his psychological injury. These stressors were not limited to the period immediately preceding the 20 February 2014 incident, making it impossible to isolate Stressor 10 as the sole relevant stressor.

The court concluded that DeAlwis' application for compensation was not valid or enforceable as it was made outside the six-month period specified in section 131(1) of the Act. The court also ordered that DeAlwis pay the Regulator's costs associated with the hearing of the jurisdictional matter.

Orders

Orders of the court

1. Application for compensation not valid or enforceable.

2. Appellant to pay the Regulator's costs incidental to and associated with the hearing of the jurisdictional matter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DeAlwis argued he was entitled to workers' compensation relating to a psychological injury but was unsure when the entitlement commenced because to date no one had accepted any liability. On 28 September 2013 in terms of his psychological problems all was behind him and none of the past had any relevance in the current case.Conclusion The matter to be determined in this case was a discrete point being whether or not DeAlwis in lodging an application for workers' compensation on 17 April 2014 did so pursuant to s 131(1) of the Act: If an application has been lodged outside the six month period identified in s 131(1) of the Act it is possible to waive s 131(1) or (2) pursuant to the circumstances identified in s 131(5) of the Act: The time from which an entitlement to compensation arises for an injury is identified at s 141(1): The factual material before the proceedings is as follows: For the application for compensation to be legitimate it must have been lodged within six months of the entitlement arising, dating from the day the claimant is assessed by a person prescribed at s 141(1)(a), (b) or (c) of the Act. The starting point for a claim of this nature is the issuing of a workers' compensation medical certificate which in this case was issued on 16 April 2014 by Dr Craig Morris. Importantly it identified the stated date of injury as being 16 April 2009, some five years previous. As the injury in question was of a psychological/psychiatric type the Commission had the benefit of pursuing the Statement of Stressors relied upon by DeAlwis which identified a range of work-related stressors from December 2008 until 16 April 2014 which coincided with the period of the stated date of injury in 2009. DeAlwis had argued that of the 13 stressors contained within the Statement of Stressors the only one relevant in these proceedings was Stressor 10 which related to a meeting that had been held on 20 February 2014 and was the catalyst for his subsequent decompensation on 16 April 2014. In the absence of any other stressor DeAlwis' claim for workers' compensation would have been valid and enforceable as the application would have been lodged within six months after he was assessed by Dr Craig Morris. Unfortunately for DeAlwis there were a range of other stressors that offered an extensive history regarding work-related incidents relied upon by him to establish that the employer engaged in unreasonable management action that had contributed to the psychological/psychiatric injury suffered by him. The stressors provided a history of events in significant detail which are unable to be extracted to a point where only Stressor 10 remains relevant, particularly as the stated date of injury identified as 16 April 2009 enlivens stressors identified in or around that period of time. On examination of the Patient Summary pertinent to treatments received by DeAlwis from 2008 until 16 April 2014 it becomes evident that he was first diagnosed with a psychological/psychiatric condition in the form of an adjustment disorder on 28 January 2010 by Dr Craig Morris who recorded in the notes a range of work-related issues as the history behind the diagnosis. The records indicate a significant pattern of diagnosing of stress-related conditions for DeAlwis which have also a work-related component as the history to the diagnosis. These dates include:· 5 March 2010;· 20 November 2010;· 3 February 2011;· 17 March 2012;· 18 March 2013;· 27 February 2014;· 31 March 2014; and· 16 April 2014.

Ratio Decidendi

Legal Principle Established

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