Green v Workers' Compensation Regulator - [2018] QIRC 18

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Green v Workers' Compensation Regulator [2018] QIRC 018
PARTIES:	Green, Norman (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NOs:	WC/2016/192 and WC/2016/195
PROCEEDING:	Appeals against decisions of the Workers' Compensation Regulator
DELIVERED ON:	1 March 2018
HEARING DATES:	6 June 2017 13 July 2017 19 February 2018
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Thompson
ORDERS:	1. The appeals are dismissed. 2. The decisions of the Regulator dated 19 September 2016 are confirmed. 3. The matter of costs is reserved.
CATCHWORDS:	WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Workers' Compensation Regulator ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence ‑ Time for applying - Diagnosis - Asbestos disease - Legislative requirements - Reasonable cause - Failed to lodge claims for compensation within the six month statutory period - Appeals dismissed - Decisions of Regulator confirmed - Matter of costs reserved.
CASES:	Workers' Compensation and Rehabilitation Act 2003 s 32, s 36, s 131, s 548, s 549, s 550, Schedule 6 Quinlivan v Portland Harbour Trust [1963] VR 25 Black v City of South Melbourne [1963] VR 34 State of Queensland (State Library of Queensland) v Simon Blackwood [2014] QIRC 126 Armstrong v Local Government Workcare [2014] ICQ 7 Blackwood v Toward [2015] ICQ 8 ANZ Banking Group v Q-COMP [2004] QIC 21 NF v State of Queensland [2005] QCA 110 Augustynski v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 207 Polar Aviation Pty Ltd v Civil Aviation Authority (No 2) [2010] FCA 404 Cook v Q-COMP (2008) QGIG 220
APPEARANCES:	Mr G. Diehm, QC instructed by Mr M. Rogalski of Slater Gordon Lawyers for the Appellant. Mr S. McLeod, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

A notice of appeal was lodged with the Industrial Registrar on 12 October 2016 by Norman Green (Green) pursuant to ss 548A(1) and 549 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against decisions of the Workers' Compensation Regulator (Regulator) dated 19 September 2016 (WC/2016/192).
The decision of the Regulator was to confirm the decision of WorkCover Queensland (WorkCover) not to waive the time for applying in accordance with s 131 of the Act.
A notice of appeal was lodged with the Industrial Registrar on 12 October 2016 by Green pursuant to ss 548A(1) and 549 of the Act against a decision of the Regulator dated 19 September 2016 (WC/2016/195).
The decision of the Regulator was to confirm the decision of WorkCover not to waive the time for applying in accordance with s 131 of the Act.
In terms of progressing both appeals conjointly the Commission with the agreement of the parties on 13 July 2017 determined that both appeals be heard simultaneously.
Relevant Legislation
The legislation pertinent to this appeal are the provisions s 131 of the Act:
"131 Time for applying
(1)An application for compensation is valid and enforceable only if the application is lodged by the claimant within…

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 Green v Workers' Compensation Regulator

Details

AGLC: Green v Workers' Compensation Regulator [2018] QIRC 18
Case: [2018] QIRC 18
Decision Date: 1 March 2018

CaseChat Overview and Summary

In Green v Workers' Compensation Regulator, the appellant, Green, appealed against the decisions of the Workers' Compensation Regulator, which dismissed his claims for compensation. The dispute hinged on the timeliness of Green's applications for workers' compensation, specifically whether they were lodged within the six-month statutory period as required by legislation. The court was tasked with determining if Green had met the burden of proving that his applications for compensation were lodged within the mandated timeframe. Given the statutory requirement that applications for compensation must be made within six months from the date the entitlement arises, the court had to examine whether Green's claims were filed within this period.

The key legal issue was whether Green had demonstrated on the balance of probabilities that his applications were lodged within the six-month limit set out in the relevant legislation. The court assessed the credibility and reliability of the evidence provided by Green and his wife, Christine Green, who played a significant role in managing and initiating the compensation claims on his behalf. The court also had to consider the nature of Green's employment history and exposure to asbestos, as well as his and Christine's respective roles in the process of lodging the compensation claims.

The court found that Green's applications for compensation were not lodged within the statutory six-month period. The evidence showed that Green was diagnosed with asbestos-related pleural plaques in April 2004 and asbestosis in July 2009. Despite this, his claims were not filed until May 2010 and August 2015, well beyond the statutory limit. The court determined that Green had failed to meet the onus of proof required to establish that his claims were timely. Furthermore, the court concluded that Christine Green, who was instrumental in managing and lodging the claims, was not an "unsophisticated" person and thus not entitled to the same leniency as someone with limited education and understanding. Consequently, the appeals were dismissed, and the decisions of the Regulator were confirmed.

The final orders of the court were that the appeals were dismissed, the decisions of the Regulator dated 19 September 2016 were confirmed, and the matter of costs was reserved for further determination.

Orders

Orders of the court

1. The appeals are dismissed.

2. The decisions of the Regulator dated 19 September 2016 are confirmed.

3. The matter of costs is reserved.

Background

Background to the litigation

The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety. Agreed Statement of Facts The following agreed statement of facts was executed by the parties and lodged with the Industrial Registrar on 12 October 2017:"The Appellant and Respondent agree on the following statement of facts:-1. The Appellant was diagnosed with asbestos related pleural plaques in April 2004 after he underwent radiological investigations.2. The Appellant was made aware of his diagnosis with asbestos related pleural plaques in or about April 2004 after he received the results from the radiological investigations.3. The Appellant was diagnosed with asbestosis in July 2009.4. The Appellant was made aware of his diagnosis of asbestosis in July 2009."Appellant On 6 June 2017 a mention of both appeals was held in Brisbane where the appellant's solicitor informed the Commission that his client's health was in a deteriorating state and whilst he had continued to reside at his principle place of residence he was from time to time in receipt of visits from a palliative care team. The appellant's health was of a nature that would prevent him from travelling from Ropes Crossing in New South Wales (NSW) to give his evidence before the Commission in Brisbane and it was the subject of an agreement between the parties that arrangements be made for such evidence to be given by video link. A facility was arranged by the Industrial Registrar for evidence to be given by the appellant on 13 July 2017 by way of video link.Green On 13 July 2017 two statutory declarations sworn by Green on 27 January 2016 and 18 March 2016 were tendered in the proceeding as was a statement (dated 1 May 2017) from Green. The content of these three documents formed his evidence‑in-chief.27 January 2016 - Statutory Declaration Green was born in Queensland in 1931 where he attended primary school, subsequently leaving school in 1944 aged 13 years. He gave evidence around his employment history for the period 1945 until his retirement in 1996. The employment history included references to a range of roles all involving manual labour, with only two of the roles placing him in areas where he was exposed to asbestos dust and fibres. Those being:· Wunderlich Pty Ltd (Wunderlich) - Gaythorne Queensland - 12 April 1948 to 8 October 1948; and· James Hardie Pty Ltd (Hardie) - Newstead Queensland - 1949 - three months' employment. The exposure at Wunderlich was on a daily basis where it was not uncommon to work 48 hour weeks during the period of his employment. Green described his direct exposure to asbestos through his role as a general labourer where at times he handled asbestos and was required to "sweep up" asbestos dust. In the course of his employment he was not provided with work uniforms or masks. In his time at Hardies he was employed as a general hand which required him to sweep and clean asbestos dust and debris off the factory floor. No mask was provided for the duration of the employment nor was any advice given in respect of breathing in asbestos dust and fibres.

Evidence

Evidence Before The Court

The standard of proof upon which appeals of this nature must be determined is that of "on the balance of probabilities".Evidence In the course of the proceedings, evidence was provided by two witnesses.Witness List The witnesses for the appellant were:· Green; and· Christine Green (Christine Green). The Regulator did not call any witness evidence. The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety. Agreed Statement of Facts The following agreed statement of facts was executed by the parties and lodged with the Industrial Registrar on 12 October 2017:"The Appellant and Respondent agree on the following statement of facts:-1. The Appellant was diagnosed with asbestos related pleural plaques in April 2004 after he underwent radiological investigations.2. The Appellant was made aware of his diagnosis with asbestos related pleural plaques in or about April 2004 after he received the results from the radiological investigations.3. The Appellant was diagnosed with asbestosis in July 2009.4. The Appellant was made aware of his diagnosis of asbestosis in July 2009."Appellant On 6 June 2017 a mention of both appeals was held in Brisbane where the appellant's solicitor informed the Commission that his client's health was in a deteriorating state and whilst he had continued to reside at his principle place of residence he was from time to time in receipt of visits from a palliative care team. The appellant's health was of a nature that would prevent him from travelling from Ropes Crossing in New South Wales (NSW) to give his evidence before the Commission in Brisbane and it was the subject of an agreement between the parties that arrangements be made for such evidence to be given by video link. A facility was arranged by the Industrial Registrar for evidence to be given by the appellant on 13 July 2017 by way of video link.Green On 13 July 2017 two statutory declarations sworn by Green on 27 January 2016 and 18 March 2016 were tendered in the proceeding as was a statement (dated 1 May 2017) from Green. The content of these three documents formed his evidence‑in-chief.27 January 2016 - Statutory Declaration Green was born in Queensland in 1931 where he attended primary school, subsequently leaving school in 1944 aged 13 years. He gave evidence around his employment history for the period 1945 until his retirement in 1996. The employment history included references to a range of roles all involving manual labour, with only two of the roles placing him in areas where he was exposed to asbestos dust and fibres. Those being:· Wunderlich Pty Ltd (Wunderlich) - Gaythorne Queensland - 12 April 1948 to 8 October 1948; and· James Hardie Pty Ltd (Hardie) - Newstead Queensland - 1949 - three months' employment. The exposure at Wunderlich was on a daily basis where it was not uncommon to work 48 hour weeks during the period of his employment. Green described his direct exposure to asbestos through his role as a general labourer where at times he handled asbestos and was required to "sweep up" asbestos dust. In the course of his employment he was not provided with work uniforms or masks.

Decision

Reasons for decision

On the matter of prejudice the Regulator had been unable to find any authorities as it related to reasonable cause. The authorities on reasonable cause seem to focus on what the individual worker thought or did or did not do at the time.Conclusion There are two separate appeals subject of determination by the Commission with each of the appeals subject to a level of commonality in that the outcomes sought are the same and the reasoning relied upon for each appeal was also the same in nature.Background The statement of agreed facts acknowledged that the appellant was made aware of a diagnosis of asbestos related plural plaques in April 2004 and diagnosed with asbestosis in July 2009. In the absence of specific dates for each diagnosis I am inclined to err on the side of caution and commence the enlivening of the six month time period from 30 April 2004 and 31 July 2009 respectively, ceasing on:· 1 November 2004; and· 1 February 2010. Neither application for compensation (on the above dates) met the time limit provisions of s 131 of the Act. In May 2010 (a date beyond the end of the six month limit of s 131 of the Act) the appellant lodged a claim with the DDB in NSW that was subsequently rejected in September 2010. The evidence is uncontested that Christine Green was the instigator of that claim firstly through sourcing information from her son's mother-in-law and then the completion of the application form requiring only her husband to add his signature prior to the lodgement of the claim. Green it is accepted was a person of limited education who spent his working life in manual labouring occupations and relied heavily upon his wife to manage his life in respect of administrative type issues as well as act as his carer. In terms of what might be described as an "unsophisticated" person Green would fit in my view comfortably into such a category of person. Green gave the only evidence with regards to Christine Green's employment situation describing her as a legal support officer in the psychiatric unit at the Nepean Hospital in NSW which required amongst her other duties an interaction with magistrates relating to the discharge of patients from the psychiatric unit. Christine Green whose evidence was given seven months after her husband's chose not to seek to correct or challenge her husband's evidence on her employment situation. Christine Green was also according to her husband a qualified Justice of the Peace which had not been challenged by her in terms of correctness or otherwise. Christine Green on the limited evidence available is less likely to fall into the category of an "unsophisticated" person. In August 2015 it was again Christine Green who obtained information about the option of lodging another claim, this time with WorkCover in Queensland and it was Christine Green who arranged legal representation to process that application.Legislative Requirements Section 131(1) of the Act states on the time for applying for compensation:"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."

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.