Pearce v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 86
•19 May 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Pearce v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 086 |
PARTIES: | Pearce, Michelle v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/83 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 19 May 2014 |
HEARING DATES: | 28 April 2014 |
MEMBER: | Industrial Commissioner Black |
ORDERS : | 1. Appeal allowed and extension of time granted; 2. Decision of the regulator dated 25 February 2014 is set aside; and 3. Matter of costs is reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Application for extension of time - Where the application for review of WorkCover's decision to reject the worker's claim for compensation was not sought within the statutory period - Where worker was a registered nurse claiming her injury was caused by occupational exposure to glutaraldehyde - Where appellant relied on illness and incapacity and inconsistency in specialist medical advice to establish special circumstances. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 s 542(1) |
| APPEARANCES: | Mr C. Clark Counsel, instructed by Bennett and Philp Lawyers, for the Appellant. Mr S. Sapsford, Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Brief History of the Claim
The Appellant's application for compensation to WorkCover was dated 21 June 2012. In her application which is in the evidence as Exhibit 1 she claimed that she sustained an injury on 27 September 2011. The nature of the injury was described as "inhalation and exposure to glutaraldyde". Her application for compensation was rejected by WorkCover on 8 October 2012.
The appellant subsequently made an application for review to the Workers' Compensation Regulator (the regulator) in correspondence dated 13 February 2014. Pursuant to s 542 of the Workers Compensation and Rehabilitation Act 2003 (the Act) an application for review must be made within three months of the decision of WorkCover. Consequently the application for review should have been lodged with the regulator by 8 January 2013. The application was therefore over 13 months out of time.
The regulator rejected the application for review in a decision dated 25 February 2014. The appellant filed her notice of appeal with the Commission on 17 March 2014.
The Law
It is accepted that for the Commission to waive the time limit imposed by s 542(1) of the Act there needs to be substantial compliance or other special circumstances. This approach is consistent with that developed by President Hall in Deng[1]:
"The law has developed since the decision of this Court in Q-COMP v Baulch. Substantial compliance is no longer the sole justification for not insisting upon the three month time limit. It is the effect of the decision of the Supreme Court in Cloncurry Shire Council v Workers' Compensation Regulatory Authority and the subsequent decisions of this Court in Australian Meat Holdings Pty Ltd v Q-COMP and Hansen v Q-COMP, that non-compliance with the time limit may be waived on the grounds of 'substantial compliance or other special circumstances'."
[1] Q-COMP AND Aqueen Teng Deng (C/2010/56) - Decision <>
The burden on the appellant in such matters was addressed by the High Court in Brisbane South Regional Health Authority v Taylor[2] (McHugh J):
"The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."
[2] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540.
In terms of the determination to be made about whether the evidence and material relied upon by the appellant amounts to special circumstances, Burchett J expressed the view in Minister for Community Services and Health v Chee Keong Thoo[3]that:
"…The core of the idea of 'special circumstances' is that there is something unusual or different to take the matter out of the ordinary course…"
[3] Minister for Community Services and Health v Chee Keong Thoo [1988] 78 ALR 307.
Prospects of Success
In dealing with an application to extend time pursuant to section 346(2) of the Industrial Relations Act 1999, President Hall stated that "the applicant's prospects of success on the proposed appeal are always a salient matter. The Court will not exercise the discretion at s 346(2) of the Act to enliven an appeal which will fail"(Debra Hancock v Djarragun College).[4]
[4] Debra Hancock v Djarragun College (C/2010/34) - Decision >
It is generally accepted that the prospects of success of the substantive application is relevant to the extent that an extension of time should not be granted where it is clear that the substantive application has little chance of success. This is not such a case.
Explanation for Delay
Evidence was given by the appellant and her solicitor, Mr John Harvey, to provide explanations for the delay in seeking a review of the WorkCover decision. Each witness provided a chronology of events to support a position that the appellant's conviction that her claim was justified and deserved resolution never wavered, and that the commitment and resolve of both the appellant and her solicitor to pursue her cause was not in any way diluted by dilatory conduct or any prevarication in addressing key issues. The appellant's chronology is in the evidence as Exhibit 5, while the solicitor's chronology is in the evidence as Exhibit 6. While clarification was sought in some areas, the content of the exhibits was, in the main, not challenged by the respondent.
I don't propose to regurgitate the content of the chronologies in this decision. Subject to separate consideration of the period immediately following the date of the WorkCover decision, the chronologies provide substantial support for a view that the appellant's cause was never overlooked or set aside or neglected for any significant period of time. Throughout the complete period that the matter was under the supervision of Mr Harvey, the appellant's claim was subject to active and continuing consideration.
The inaction of the appellant in the period immediately following the WorkCover decision was attributed to the appellant's illness and general state of poor health. The medical record of attendances on Dr Chamberlain is in the evidence as Exhibit 14. On
4 October 2012 the record notes that the appellant was still very fatigued and that she was still seeing specialists. The record of 5 December 2012 states that the appellant "continues to be fatigued" and needed a referral update to see Dr Klestov. The record of 31 December 2012 states that the appellant "has been struggling" and had seen a neurologist in Brisbane. Dr Kim's report dated 22 January 2013 states that the appellant had been admitted to St Andrew's Hospital in Brisbane for a period of time in
January 2013. She was admitted for "severe exacerbation of tracheobronchitis".
Dr Chamberlain's records of a consultation of 5 February 2013 indicate that the appellant had been back to see Dr Kim for a lung tune up and now has a Portacath installed. Finally, the record of the consultation with Dr Chamberlain on 22 April 2013 states that the appellant "has been struggling to walk to do the shopping etc. Needs closer park. Can take 30-60 minutes to get to car otherwise".The appellant said that she may not have read the WorkCover decision when it arrived in the mail, but she was informed of the decision in a phone call from an officer of WorkCover. Given the brevity of the decision I don't think much swings on the fact that the appellant did not read it other than she did not read the information in the decision about her right of review. She said that at the time she did not know that she had a right of review.
Mr Harvey's evidence around some of the relevant questions is set out at T1-53. In short summary Mr Harvey said that he was familiar with the workers compensation jurisdiction, he was aware that the appellant had a right of review from the decision of WorkCover, he was aware of the statutory time limit, and he knew that by the time that the appellant had engaged his services, the time limit had been exceeded. He said that he did not file an application for review upon receipt of instructions because he did not have any evidence upon which he could expect WorkCover to change its reliance on the opinion provided to it by Dr Kim. The immediate requirement was to secure a copy of the WorkCover file and then to assess the feasibility of counteracting Dr Kim's opinion.
Special Circumstances
During the proceedings the appellant advanced a number of propositions which it was submitted when considered together were sufficient to satisfy the "special circumstances" test:
(i) The appellant's medical condition was a complex condition that required diagnosis and treatment by an expert medical specialist. The consequential requirement to establish a connection between the condition and the workplace was also a matter of considerable complexity. The resolution of these matters is time rich.
(ii) The complex determination to be made about whether the appellant had been exposed to glutaraldyde, and if so, to what extent, and the consequential consideration of whether the appellant's illness was caused by the exposure, distinguished this case from the circumstances associated with more mundane injuries such as a broken leg.
(iii) In terms of the establishment of grounds for review, the complexity of the matter was compounded by what the appellant considered to be inconsistent explanations from her treating specialist, Dr Kim, about the cause of her illness. In the first instance she believed Dr Kim supported her view that the illness was caused by occupational exposure to glutaraldehyde. Subsequently Dr Kim informed WorkCover that there was no association between her illness and her workplace. In the final instance however Dr Kim in his 22 January 2013 correspondence appeared to revert to a position of at least partial support for the appellant's view of a work related illness.
(iv) The tortuous process that the appellant had to endure before getting a clear and decisive determination on the association between the illness and work was attributed to the peculiar difficulty that the appellant encountered in persuading Dr Kim to provide an opinion independent of any WorkCover conclusion.
(v) Dr Kim's circumstances were unusual. He was put in a difficult position given that he was the worker's treating physician. He was provided by WorkCover with information from the appellant's employer and asked to express an opinion on the appellant's WorkCover claim. His negative opinion was then relied on by WorkCover to reject the appellant's claim. The appellant was not given a copy of the reports prepared by Dr Kim for WorkCover. All she knew was that his conclusion was reproduced in WorkCover's decision. This conclusion specifically said that there was no causal association between the illness and the workplace. It was this conclusion that had to be overcome in the review process. Notwithstanding other supportive sentiments that Dr Kim may have expressed which the appellant may have considered relying on, it was understood that her application for review could not succeed in the face of her own treating specialist's conclusion that her employment did not cause her illness.
(vi) The appellant's poor health precluded her from giving appropriate or necessary consideration to the decision of WorkCover for some period of time. Her preoccupation with her health issues may have understandably distracted her from doing what an ordinary person might have done in all of the circumstances. Her interest in her cause however was clearly demonstrated by her determination to pursue the matter over time, and the close contact she maintained with her solicitor.
(vii) As soon as the appellant became fully cognisant of the views expressed by Dr Kim in his letter dated 22 January 2013, and had discussed the matter with her GP, she set about getting legal assistance. These efforts culminated in her contact with Mr Harvey on 25 March 2013.
(viii) The interactions with Dr Kim, Dr Kim's possible conflict of interest, the ensuing delays, and the fluctuating support constituted unusual, distinguishing and special factors. The submissions around the inadequacies or inconsistencies in the various reports of Dr Kim in terms of their capacity to sustain a successful review application are justified by reference to the content of the report of Dr Heiner. The contrast between the conclusions of the two doctors substantiates the submission.
Regulators Submissions
The regulator submitted that there was no reason why the application for review should not have been lodged soon after the appellant consulted her solicitor. There was sufficient information arising from the appellant's knowledge of her circumstances, including the initial observations of Dr Kim, to develop an argument that the claim for compensation had been improperly rejected by the insurer. The application for review should have been made at this stage, notwithstanding that it was already two months out of time.
Beyond this milestone, and contrary to the assertion of the appellant, it was the regulator's view that the report of Dr Kim of 5th of August 2013 (Exhibit 17) provided sufficient supporting opinion upon which to found an application for review. There was no reason to delay the lodgement of an application for review beyond this date. In making this submission the regulator relied on the following extracts from the 5 August 2013 report:
"I have reported in my correspondence that whether or not this has resulted from or caused by her reported occupational exposure would be a matter for the WorkCover assessment with consideration to her occupational history.
...
Although we cannot 'pinpoint' or 'blame' the glutaraldehyde exposure to the initial onset of her respiratory illness, there are widely accepted public health literature evidence that supports the close-related association between direct and cumulative glutaraldehyde exposure and occupational asthma.
...
In the claimant's case, the glutaraldehyde exposure would have significantly
aggravated her pre-existing and/or established airway disease."The regulator submitted that these extracts could have been relied on to provide evidence of a relationship between the exposure and either the condition itself or an aggravation of that condition. The regulator stated that Dr Kim's correspondence pointed to the existence of multiple reports from multiple practitioners suggestive of a link between the appellant's industrial exposure to glutaraldehyde and the consequent disease she has sustained.
The regulator also maintained that the appellant could have relied on the reports of
Dr Kim dated 23 July 2012 (Exhibit 11) and 22 January 2013 (Exhibit 12). The submission was that there existed "quite considerable evidence, both in the hands of the appellant and her general practitioner and, subsequently, in the hands of her solicitor, which was not acted upon and not used for the purpose of bringing an application for review".
The regulator relied on the decision in Feneley[5] to support a proposition that an extension of time should not be available where a conscious decision had been made not to lodge an application, but in circumstances where this decision was subsequently regretted. While it was acknowledged that the evidence did not establish that Mr Harvey did regret the decision taken not to file at an earlier date, nevertheless the appropriate course of action would have been to make application for review upon receipt of instructions from the appellant.
[5] Q-COMP and Paddy Gerard Feneley (C/2010/37) - Decision < type="1">
The regulator did not accept that the appellant had made a case for an extension of time based on the illness or incapacity of the appellant. The regulator noted that while the appellant relied in this regard on the report of Dr Chamberlain which is in the evidence as Exhibit 13, a significant number of errors or inaccuracies had occurred in the formulation of this report. These errors or inaccuracies diminish the weight that can be attached to the views of Dr Chamberlain.
Conclusion
It is my view that the relevant medical records of the appellant's consultations with
Dr Chamberlain (Exhibit 14) considered in conjunction with the reports of Dr Kim, the appellant's chronology (Exhibit 6), and the appellant's oral evidence, supports a conclusion that the appellant was in poor health in the period of time immediately following the release of the WorkCover decision. Dr Chamberlain commented on continuing fatigue while Dr Kim's notes confirm that the appellant was admitted to hospital in January 2013 for severe exacerbation of tracheobronchitis. Her condition was such that she was hospitalised for ten days. I accept that these circumstances would have preoccupied the appellant for at least the three month period following the WorkCover decision and would have diminished her capacity to address her discontent over the decision with any normal vigour. It follows that I consider that these circumstances assist the appellant's case and positively contribute to her cause in this appeal.
I think that it would also be fair to conclude that the appellant considered the opinion provided to WorkCover by Dr Kim to constitute a serious setback to her ongoing campaign. Whether a matter of fact or perception, she thought that Dr Kim had moved from a position of support to a position of opposition. Had the contrary opinion been articulated by some other specialist she may have been motivated to immediately refer that opinion to Dr Kim for review and consider her options from there. This avenue however was not available. Her confusion and disappointment compounded by her general state of poor health leads to a period of inactivity around the status of her WorkCover claim. However Dr Kim's 23 January 2013 report, which raised the prospect of an injustice, changed the landscape. This report then became the significant development in galvanising the appellant into action and subsequently retaining legal assistance.
The various opinions expressed by Dr Kim are relevant to the determination about special circumstances. A summary of the significant and relevant outcomes of Dr Kim's reports is set out below:
· Report dated 31 May 2012 - no relevant conclusion. Recommendations include allergy testing including glutaraldehyde in four weeks' time.
· Report dated 25 June 2012 - Diagnoses include "reported exposure to glutaraldehyde with possible occupation-induced asthma and reaction (unsubstantiated by objective clinical data) - for further assessment". The report notes significant anxiety on the part of the appellant about the possible component of glutaraldehyde-related allergic reaction and/or asthma at her workplace. Recommendations include the completion of Mannitol-based bronchial provocation testing in respect to which it is stated "if this is negative, then it is unlikely that we can support occupation-induced asthma diagnosis ..."
· Report dated 23 July 2012 - Diagnoses include "reported exposure to glutaraldehyde with possible occupation-induced asthma and reaction." The report notes that test results are suggestive of reactive airway dysfunction and/or asthma and adds "whether or not this has resulted from or caused by her reported occupational exposure remains now a matter for WorkCover assessment as based on her occupational history."
· WorkCover decision dated 8 October 2012 - The decision of WorkCover included reference to two reports of Dr Kim prepared on 9 August 2012 and 2 October 2012. WorkCover relied, in rejecting the claim, on the following paragraph included in one or both of the reports:
"She has underlying asthma syndrome, which may likely be an independent disease process, along with autoimmune complexes… based on her occupational exposure history given by her and the actual date data, it would seem the direct causal association of chemical-induced asthma is lacking".
· Report dated 22 January 2013 - Diagnoses include that "reported exposure to glutaraldehyde with possible occupation-induced asthma and reaction
July 2012 confirmed". No further commentary about this diagnosis appears.· Letter to John Harvey dated 5 August 2013 - In the conclusions section it is stated: "Although we cannot pin-point or blame the glutaraldehyde exposure to the initial onset of her respiratory illness, there are widely accepted public health literature evidence that supports the close-related association between direct and cumulative glutaraldehyde exposure and occupational asthma." Then "in the claimant's case, the glutaraldehyde exposure would have significantly aggravated her pre-existing and/or established airway disease". Dr Kim then suggests that if direct compensation could not be supported, the employer ought to be pursued for failure of duty of care.
· Report dated 22 December 2013 - Diagnoses include at point 2 "reported exposure to glutaraldehyde with possible occupational induced asthma reaction, July 2012, confirmed as per Mannitol-based bronchial provocation testing". Notes that the appellant was re-admitted to St Andrews hospital from 18 December 2013 to 23 December 2013. Also notes that the appellant is involved "in medicolegal proceedings against her previous employer regarding glutaraldehyde induced occupational induced asthma". Also notes that a second opinion has been sought from Dr Heiner.
It was the appellant's evidence that when she first saw Dr Kim he was supportive of a view that her exposure to occupational related glutaraldehyde may have caused her illness. The appellant's perception is not necessarily sustained by a reading of Dr Kim's 25 June and 23 July 2012 reports, but the reports confirm that the issue was discussed and that Dr Kim was conscious of the possibility. For example in his 25 June report he states that while some readings on glutaraldehyde exposure report on autoimmune-like symptoms, the outcome remains circumstantial and difficult to define at least from immunological criteria. In the 23 July report Dr Kim notes that the Mannitol-based testing was suggestive of reactive airway dysfunction and/or asthma. He then observes that whether the condition was caused by occupational exposure remains a matter for WorkCover. The content of both reports suggest that his view on the central issue was not unequivocal.
The difficulty for the appellant was that, in the absence of any further consultation with the appellant, Dr Kim then shifted from this exploratory perspective to adopt a more definitive or conclusive view on the matter in his report for WorkCover. Significantly
Dr Kim's view appeared to change when WorkCover provided him with information from the appellant's employer which had the effect of discrediting any notion that the appellant's exposure to glutaraldehyde was occupational in nature. In the report to WorkCover Dr Kim then opines that the appellant's underlying asthma syndrome may likely be an independent disease process and that "it would seem the direct causal association of chemical-induced asthma is lacking".
The matter of significance to the appellant's case in the appeal is that having reached a point where Dr Kim has rejected any causal link, he then produces what appears to be a contradictory diagnosis after deciding to admit the appellant to St Andrew's hospital in January 2013. The apparent contradiction arises from the recorded diagnosis which reads "reported exposure to glutaraldehyde with possible occupation-induced asthma and reaction July 2012 confirmed". While the diagnosis alludes to a possibility of occupation induced asthma, the confirmation of exposure to glutaraldehyde appears to be inconsistent with the information provided by the employer to WorkCover and Dr Kim, particularly given that it was improbable that the appellant had been exposed to glutaraldehyde in circumstances other than her employment.
Therefore, almost a month after the statutory time limit for review had passed, the appellant becomes apprised of a possibility that Dr Kim's opinion has changed. If a conclusion was reasonably open that Dr Kim was expressing a different view to that which he expressed to WorkCover, I think that a finding at the time that the interests of justice would be served by allowing the applicant to test the WorkCover decision in the review process would have been justified. The more difficult question is whether any extension of time beyond this is warranted and I now turn to a review of the relevant circumstances applying to the period beyond February 2013.
It was the appellant's evidence that she became aware of the January 2013 report on
5 February 2013 during a consultation with Dr Chamberlain. After she discussed the report with Dr Chamberlain she decided to make contact with a solicitor. After a discussion with a local solicitor she was referred to Mr Harvey's firm. She first spoke to Mr Harvey on 25 March 2013. While there may be some criticism about the delay taken by the Appellant in making contact Mr Harvey (about 6 weeks), having regard to all the relevant facts and circumstances I do not consider this delay to be a determinative consideration in the appeal.In my view the facts and circumstances of this case support a conclusion that the indulgence sought should be granted. In particular I rely on the chronology of events provided by Mr Harvey. This chronology does not suggest dilatory conduct, nor a lack of attention, nor any failure to maintain close and regular liaison with the appellant. The chronology is evidence of diligent and timely interrogation of the issues and the taking of substantive action in response to emerging events.
The principal cause for concern in the decision making process is the failure of
Mr Harvey to make the application for review, albeit with limited grounds, as a precautionary measure some time soon after he received instructions from the appellant. Mr Harvey's evidence around this subject is recorded at T1-53:"All right. Okay. All right. Now, can I pose this question to you: being aware of the what the time was, did you consider it feasible to, you know, submit an application for review at that time?---It - it wasn't - it wasn't feasible based only upon the report from - from Dr Kim in the face of the letter of rejection from WorkCover. The first step I took, which was immediate, the very next day, after meeting my client and obtaining signed authority, was to write to WorkCover obtaining their file. It was - that was the first thing that I had to do. I - I did consider - but it was out of time. I - I knew then that it was out of time, so then the options were, what do we do about that now.
All right. Did you - at that stage, did you consider you consider you had any evidence to base an application to review - for review?---Certainly, at that - at - and at that time, when I first met the client on 27th of March, and then even when I received the WorkCover file, there was nothing - there was certainly not enough there to go to the Regulator with a - with an application for review.
Very well?---There was no evidence to support her claim."
I accept in this regard that Mr Harvey was entitled to review the WorkCover file. He received this on 12 April 2013. I also accept that Mr Harvey was entitled to try to secure some clarification from Dr Kim about the apparent conflict in his opinion of
22 January 2013 and the opinion which he provided to WorkCover and upon which WorkCover's decision was based. Ultimately, through no fault of Mr Harvey, this clarification arrived in the form of a report from Dr Kim dated 5 August 2013.
The regulator criticised the appellant for not lodging the application for review after receipt of the 5 August 2013 letter from Dr Kim. On balance, I accept Mr Harvey's evaluation of this correspondence. In the context of all that had gone on before I think Mr Harvey was entitled to be cynical of the content. While Dr Kim's writings include a positive statement about aggravation, the key conclusion made was that "we cannot 'pinpoint' or 'blame' the glutaraldehyde exposure to the initial onset of her respiratory illness...". Stripped of the supporting sentiments, this conclusion is very similar to the conclusion relied upon by WorkCover to reject the claim. In the circumstances I don't think that it was unreasonable for Mr Harvey to conclude that the regulator was likely to continue to rely on Dr Kim's conclusions, whether expressed in 2012 or in the
5 August 2013 letter, that there was no association between the appellant's illness and her employment.
Having progressed this far and in effect acknowledging that special circumstances have contributed to the delay up to August 2013, I am satisfied that all further steps taken by Mr Harvey to progress the matter and bring it to finality were appropriate and necessary. His frustration at the continuing equivocation by Dr Kim led him to recommend to the appellant that she undergo tests in which she is exposed to glutaraldehyde under controlled conditions. Subsequently the appellant informed him that she had become aware of a similiar case which had succeeded following an assessment by a Dr Maurice Heiner. This information triggered the process of securing Dr Heiner's consent to examine the appellant and prepare a medico-legal report. These matters invariably take time and it was not unexpected in my view that Dr Heiner's report did not fall into the hands of Mr Harvey until mid-January 2014.
In fairness to the appellant she is entitled to have her claimed reviewed. It is my decision that the appellant has satisfied the requirement to establish special circumstances and that her appeal should be allowed.
The matter of costs is reserved.
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