Nuttall v Workers' Compensation Regulator - [2017] QIRC 69

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Nuttall v Workers’ Compensation Regulator [2017] QIRC 069
PARTIES:	Nuttall, Andrew (Appellant) v Workers’ Compensation Regulator (Respondent)
CASE NO:	WC/2016/159
PROCEEDING:	Appeal against decision of the Workers’ Compensation Regulator
DELIVERED ON:	20 July 2017
HEARING DATE:	20 June 2017
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Roney
ORDERS:	1. The Appeal is dismissed. 2. The decision of the Regulator dated 9 August 2016 is confirmed. 3. The Parties have liberty to apply to the Commission as to the question of costs. The Parties are invited to attempt to agree costs, but failing agreement, this question is to be subject to a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION - Application for compensation lodged six months and twenty-two days after date of entitlement to compensation for injury arose - whether time limit for lodgement should be waived - whether failure to lodge was due to mistake or a reasonable cause
CASES:	Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 131, s 141 Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207 Black v City of South Melbourne [1963] VR 34 Cook v Q-Comp (2008) 187 QGIG 220 JBS Australia Pty Limited v Workers’ Compensation Regulator [2017] QIRC 26 Kier v Blackwood [2014] QIRC 123 Murray v Workers’ Compensation Regulator [2016] QIRC 81 Project Blue Sky Inc & Ors v Australian Broadcasting Authority 194 CLR 355 Quinlivan v Portland Harbour Trust [1963] VR 25 Simon Blackwood (Workers’ Compensation Regulator) v Toward [2015] ICQ 8 Tanna v Blackwood [2014] QIRC 187 Whipps v Workers’ Compensation Regulator [2017] QIRC 29
APPEARANCES:	Mr S. McGhie, Solicitor with Richardson McGhie, for the Appellant Mr T.A. Nielsen, Counsel, directly instructed by the Workers’ Compensation Regulator, for the Respondent

Decision

Introduction

This is a case about a technical preliminary point concerning time which will determine whether the claim fails now or proceeds to the next stage for consideration by the Regulator.
The Application for Compensation the subject of this appeal is brought beyond the six month period allowed under the Workers’ Compensation and Rehabilitation Act 2003 (Qld)[1] (WCRA). It was lodged twenty-two days out of time.[2]

[1] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 131(1).

[2] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 141; Simon Blackwood (Workers’ Compensation Regulator) v Toward [2015] ICQ 8 [44].

Relevantly, s 131 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.
(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.

(3)Subsection (2) does not apply if death is, or results from, the injury.

(4)An insurer must waive subsection (1) for a particular application if…

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 Nuttall v Workers' Compensation Regulator

Details

AGLC: Nuttall v Workers' Compensation Regulator [2017] QIRC 69
Case: [2017] QIRC 69
Decision Date: 20 July 2017

CaseChat Overview and Summary

Nuttall v Workers' Compensation Regulator is an appeal against the Workers' Compensation Regulator's decision to reject an application for compensation. The Applicant, Mr Nuttall, sustained a hernia injury while working for Superior Plumbing in November 2015. He was diagnosed by Dr Golden and referred for surgery. He believed Dr Golden would lodge the compensation application, but after surgery he discovered that the application had not been lodged. He lodged the application on 21 June 2016, but WorkCover rejected the claim on the basis that it was out of time. The Commissioner dismissed the appeal and confirmed the Regulator's decision.

The central issue in the appeal was whether the time limit for lodgement of the application should be waived, and whether the failure to lodge the application was due to a mistake or a reasonable cause. The Regulator rejected the application on the basis that it was out of time and that Mr Nuttall had failed to provide a reasonable explanation for the delay in lodgement. The Commissioner held that the appeal should be dismissed. The Commissioner held that the Applicant had not provided a reasonable explanation for the delay in lodgement of the application. The Commissioner held that the Applicant had made inconsistent statements about his belief that Dr Golden would lodge the application and that he had failed to raise the issue of the delay in lodgement in his review of the Regulator's decision. The Commissioner held that the delay in lodgement was not due to a reasonable cause.

The Commissioner held that the appeal should be dismissed and the Regulator's decision should be confirmed. The Commissioner held that the Applicant had not provided a reasonable explanation for the delay in lodgement of the application and that the delay was not due to a reasonable cause. The Commissioner held that the Applicant had made inconsistent statements about his belief that Dr Golden would lodge the application and that he had failed to raise the issue of the delay in lodgement in his review of the Regulator's decision. The Commissioner held that the Applicant had not provided a reasonable explanation for the delay in lodgement of the application and that the delay was not due to a reasonable cause.

The final orders of the Commissioner were that the appeal be dismissed, that the decision of the Regulator be confirmed, and that the parties have liberty to apply to the Commission as to the question of costs. The parties were invited to attempt to agree on costs, but failing agreement, the question of costs was to be subject to a further application to the Commission.

Orders

Orders of the court

1. The Appeal is dismissed.

2. The decision of the Regulator dated 9 August 2016 is confirmed.

3. The Parties have liberty to apply to the Commission as to the question of costs. The Parties are invited to attempt to agree costs, but failing agreement, this question is to be subject to a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Nuttall was the sole witness in the Appellant’s case.Mr Nuttall’s Evidence Mr Nuttall gave evidence that he sustained a hernia injury to his left groin area in the course of moving hot water systems and toilets in November 2015 whilst working for his employer, Superior Plumbing. His evidence was that he told his supervisor, Aaron Kirkby about his injury. He said he went to his local General Practitioner, Dr Golden (Brighton Medical Practice), on 24 November 2015, and the Doctor referred him for scans to be taken. He said he returned to see Dr Golden again on 30 November 2015 at which time Dr Golden provided a workers’ compensation medical certificate (exhibit one). Mr Nuttall’s evidence was that "he assumed Dr Golden would lodge" an application for compensation. He said previously that is what has happened when he has had workers’ compensation claims. He said "I never actually filled out any forms myself, other than being at the hospital, when I broke my fingers and times before that" (T1-10). He said after he had the scans he continued working, and there was no treatment recommended at this time. He said he was able to perform his duties, but he experienced discomfort and a "little bit" of pain at times when he felt the hernia "pop out" when he was in "certain positions, [doing] certain lifting, [and doing] certain different things that would weigh quite a bit" (T1-11). He said that when this happened he would "give [the hernia] a little rub and push it back in" (T1-11). Ultimately, Dr Golden referred him for surgery to the Royal Brisbane Hospital. Dr Golden’s medical surgery arranged the scans and the Hospital appointments. He said he recalls being contacted by the Hospital. He said quite a number of weeks after the scan he telephoned the Brighton Medical Practice to follow up on the surgery. At that time he was advised that his case did not have a high priority as he was able to continue to work, that his case had been classified as a "category 2", and that he "just had to wait" (T1-10). There was some rescheduling of the surgery which occurred, with it ultimately occurring on 13 June 2016. His evidence was that after he was first admitted to the hospital, when he and his partner were waiting downstairs, he "pulled [his] scans out" from amongst his medical paperwork and saw the original medical certificate that Dr Golden had previously written out (T1-12). His evidence was that he said to himself "oh bugger" (T1-12). He said that at that time his observations were "oh, something’s happened here", "this isn’t right" and "[the original medical certificate] should have been put in" (T1-12). He said postoperatively he returned to the Brighton Medical Practice and saw Dr Bishop on 21 June 2016. He said he took the original medical certificate with him. He said the Doctor was able to perform a search on a computer screen and confirmed an Application for Workers’ Compensation had not been lodged and advised him that she would lodge one on that day. After that visit he returned to work with a different employer. He said he received a telephone call from WorkCover who notified him that his claim had been declined because it was out of time. He said he did not know about the six month limit for lodgement of claims.

Decision

Reasons for decision

A letter from WorkCover to Mr Nuttall dated 27 June 2016 rejecting his claim for compensation was put to him for comment (exhibit six). The part of the letter entitled "Reasons for the Decision" was expressly put to Mr Nuttall for comment. It is relevant to set out that part of the letter"Reasons for the decisionIn reaching the decision, I have reviewed all the information gathered on the application. In summary, the following information is noted:WorkCover received your application for compensation on 21 June 2016 for a ‘Left inguinal hernia’ sustained in November 2015. You advised that you were first seen in November 2015 for this injury and diagnosed with a hernia which you attributed to moving hot water systems in the course of your employment with Superior Plumbing Brisbane Pty Ltd. The medical certification confirms that the date first seen and diagnosis was November 2015. When you were asked what the reason was for the delay in lodgement of your application, you advised that you had the paperwork, but you had forgotten to lodge it until you found it after surgery had been done on 13 June 2016." In regard to Mr Nuttall’s application to review the decision (exhibit six) to reject his claim dated 6 July 2016, it was put to Mr Nuttall in cross-examination that he did not mention in that document that he was relying upon his Doctor to lodge the claim. It was put to him that at the time he made the review that he hadn’t relied upon the Doctor to lodge the forms. He rejected these propositions. Further, in a similar vein in cross-examination, it was put to Mr Nuttall that in an email to the Q-COMP Review Unit on 13 July 2016 when his case was subject to review, that he also failed to explain the reason for delay as the reason he identified in this appeal (T1-40, 41). Exhibit seven in the proceedings is an email from Mr Nuttall to the Q-COMP Review Unit headed "Financial hardship". It states:"Hi I have a case in review, case number is –S15cp329353. I am sending this email as I am in servers (sic) financials hardship. This will be the fifth week I have not received any form of money. I am still unable to return to work due to my hernia surgery. I have an appointment with the hospital and surgeon tomorrow being the 14th July to determine when I will be fit to return to work. I am unsure of how this will go as I am still in a considerable amount of pain and discomfort from the procedure. This financial hardship is putting a strain on my relationship with my partner who I live with and have been dependent on these last five weeks along with my family who I have also had to borrow money off to scrape by. We also have a foster daughter so it’s not just myself I have to support. I am asking for all of this to please be taken into consideration when assessing this case and the priority as to when it is to be reviewed. Thanks for your time, Regards Andrew Nuttall." Mr Nuttall’s explanation for not raising the lodgement issue was because he thought the review was confined to issues of financial hardship. He said for this reason he only raised issues of financial hardship in the email (exhibit seven).

Ratio Decidendi

Legal Principle Established

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