Green v Workers' Compensation Regulator

Case [2019] ICQ 3

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Green v Workers’ Compensation Regulator [2019] ICQ 3

PARTIES:

NORMAN GREEN

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO:

C/2018/2

PROCEEDING:

Appeal

DELIVERED ON:

3 May 2019

HEARING DATE:

22 May 2018

MEMBER:

Martin J, President

ORDER:

The appeal is dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – FAILURE TO MAKE CLAIM WITHIN TIME – where the appellant was diagnosed with asbestos related pleural plaques and, five years later, asbestosis – where the appellant applied to the insurer for compensation for each illness – where the application was outside the statutory time limit – where the insurer declined to waive the time limit, that decision was supported by the Respondent and not disturbed on appeal by the Commission – whether the Commissioner erred in not finding that the insurer should have been satisfied that the applicant’s failure to lodge the application was due to a reasonable cause – whether, being so satisfied, the insurer should have waived the time limit

Workers’ Compensation and Rehabilitation Act 2003, s 131

CASES:

Black v City of South Melbourne [1963] VR 34, cited

Butt v John W Eaton Ltd (1920) 29 CLR 126, cited

Commonwealth of Australia v Connors (1989) 86 ALR 247, cited

Murray v Workers’ Compensation Regulator [2016] QIRC 81, cited

NF v State of Queensland [2005] QCA 110, cited

Perdis v Nominal Defendant [2004] 2 Qd R 64, cited

Re Lee and Repatriation Commission (1986) 11 ALD 56, cited

Re van Gelder and Commonwealth of Australia (1985) 7 ALN N374, cited

APPEARANCES:

G Diehm QC and S Noble instructed by Slater & Gordon Lawyers for the appellant

S McLeod instructed by the respondent

  1. Norman Green commenced his working life at the age of 13 in 1945. He worked in a variety of jobs until he retired in 1996. For the purposes of this appeal, the relevant work was over two brief periods in 1948 and 1949 when he was subjected to substantial exposure to asbestos, asbestos dust, debris and fibres.

  2. In April 2004, Mr Green was diagnosed with asbestos related pleural plaques. Five years later, in July 2009, he was diagnosed with asbestosis.

  3. He lodged an application for compensation, for each illness, on 22 October 2015 with the insurer WorkCover Queensland. The application was outside the time limit provided for in the Workers’ Compensation and Rehabilitation Act 2003 – by just under 11 years for the pleural plaques claim and over five years for the asbestosis claim.

  4. The time limit for lodging such an application is set out in s 131 of the WCR Act. Section 131(1) provides:

    “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.”

  5. The six month time limit may be waived by an insurer under s 131(5):

    “An insurer may waive sub-section (1) … for a particular application if the insurer is…

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Green v Workers' Compensation Regulator [2019] ICQ 3
Case
[2019] ICQ 3
Decision Date

CaseChat Overview and Summary

In the appeal case of Green v Workers' Compensation Regulator, the appellant was diagnosed with asbestos-related pleural plaques and, five years later, asbestosis. The appellant applied to the insurer for compensation for each illness, but the application was outside the statutory time limit. The insurer declined to waive the time limit, a decision supported by the Respondent and not disturbed on appeal by the Commission. The appellant argued that the insurer should have waived the time limit as his failure to lodge the application was due to a reasonable cause.

The legal issues the court had to decide were whether the Commissioner erred in not finding that the insurer should have been satisfied that the appellant's failure to lodge the application was due to a reasonable cause and whether, being so satisfied, the insurer should have waived the time limit. The court considered the knowledge of the appellant at the relevant time and the actions taken or not taken within the six-month time limit. The Commissioner found that the appellant was a person of limited education who had spent his working life in manual labouring occupations and had always relied heavily on his wife to take care of administrative issues. The appellant had obtained his knowledge of compensation from watching Bernie Banton on television, but this did not amount to a reasonable cause for the delay in lodging the application.

The court dismissed the appeal, finding that the Commissioner's decision was not erroneous. The court held that the appellant's limited education and reliance on his wife for administrative tasks did not constitute a reasonable cause for the delay in lodging the application. Furthermore, the appellant's knowledge of compensation from watching Bernie Banton on television did not amount to a reasonable cause for the delay. The court concluded that the Commissioner's decision was supported by the evidence and that the insurer was not required to waive the time limit.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.The decision in the Commission The Commissioner found that the applicant was a person of limited education who had spent his working life in manual labouring occupations and who had always relied heavily upon his wife to take care of what were described as “administrative type issues”. In other words, Mrs Green was responsible for the paperwork for all parts of her husband’s life. He was, the Commissioner found, properly described as an unsophisticated person. On the other hand, Mrs Green had been a legal support officer in the psychiatric unit at the Nepean Hospital in New South Wales. As part of those duties, she was required to deal with magistrates with respect to the discharge of patients from the hospital’s psychiatric unit. She was also a qualified Justice of the Peace. In May 2010 Mrs Green lodged a claim on behalf of the applicant with the Workers’ Compensation Dust Diseases Board of New South Wales. That claim was rejected by the Board in September 2010. The applicant said that, at the time the application was lodged, he did not think he had an entitlement to lodge a claim for compensation because he had stopped working. The claim was lodged without him having obtained any advice and no legal advice was sought after he was advised his claim had been rejected. The DDB had not contacted him beyond the rejection letter and he was not told at any stage he could bring a claim in Queensland. The letter from the Dust Diseases Board contained the following statements:“However, it would appear from your employment history that your asbestosis exposure seems insufficient to enable attribution. Therefore, it is the Authority's opinion that this condition is not related to your dust exposure.”“Furthermore, it would appear from your work history that you never had any asbestos exposure whilst a worker under the Act in New South Wales.” No further steps were taken by the applicant until Mrs Green obtained some information about the option of lodging a claim with WorkCover. That led to her lodging the current application the subject of this appeal. The extent of the applicant’s knowledge about compensation was referred to in his statement where he said:“All I know of asbestos related compensation payments I read and heard in the news when Bernie Banton was fighting to get compensation. I did not have any knowledge besides that. I did not really understand who he was fighting and how.” In cross-examination on this topic he said:“Well, only because we watched Bernie on TV. He was – he had his oxygen mask on and everything. And I thought he was there to help people out who ever worked for – in asbestos.” After relating that piece of evidence in his reasons, the Commissioner went on to say:“[96] It is a matter of public record that Banton gained a degree of public exposure throughout Australia as a campaigner around asbestos-related conditions/illnesses and often appeared on television with an oxygen tank by his side. It is also on the public record that Banton died on 27 November 2007. [97] The level of importance that can be attached to Banton's death on 27 November 2007 is that Green's knowledge about his activities in respect of asbestos related conditions was obtained well before the diagnosis of asbestosis in 2009 and it was reasonable to expect that in respect of the 2009 appeal he was aware that compensation for conditions such as that diagnosed was in the mix.”

Ratio Decidendi

Legal Principle Established

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