Scofield v Workers' Compensation Regulator (No. 2) - [2018] QIRC 103

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Scofield v Workers' Compensation Regulator (No. 2) [2018] QIRC 103
PARTIES:	Scofield, Yvonne Veronica (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2016/110
PROCEEDING:	Appeal
DELIVERED ON:	9 August 2018
HEARING DATE:	20 June 2018
MEMBER: HEARD AT:	O'Connor DP Brisbane
ORDERS:	1. The appeal is dismissed; 2. The respondent's review decision dated 10 June 2016 is confirmed; and 3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed or failing agreement to be the subject of a further application to this Commission.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF THE REGULATOR – Whether a claim for Workers' Compensation was lodged in time – Where the claim was lodged outside of 6 months after the entitlement to compensation arose – Whether the Appellant demonstrated that there was a reasonable cause for the delay – Where there was no mistake or reasonable cause – Appeal dismissed.
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2016 (Qld) s 131, s 141. ANZ Banking Group v Q-COMP (2004) 175 QGIG 1125 Black v City of South Melbourne (1963) VR 34 Blackwood v Toward [2015] QIRC 005 Van Dongen v Northern Territory of Australia [2005] NTCA 6
APPEARANCES:	Mr R Boal of counsel, instructed by hD Lawyers for the appellant. Mr S McLeod of counsel, directly instructed by the respondent.

Reasons for Decision

On 3 July 2015 the appellant's solicitor electronically lodged a workers' compensation application with WorkCover. In that application the appellant's injury was described as a "Stroke/brain damage Severe psychiatric injury" which was sustained over a period starting in 2012 and ending in 2014.
On 10 June 2016 the respondent rejected the application for review on the basis the application for compensation had been made outside of the six month time limit prescribed under s 131 of the Workers' Compensation and Rehabilitation Act 2003.
The appellant now appeals the respondent's decision to this Commission. In doing so the appellant seeks to establish that her application was made within time, or that one of the discretionary factors within s 131(5) has been made out.
There are two interacting sections of the Act which govern this appeal. Section 131 outlines the time for applying for compensation, that being six months, while s 141 sets out when an entitlement to compensation arises.
The appellant's Statement of Facts and Contentions states:
The Appellant asserts that her entitlement for the purposes of sections 131 and 141 of the Act arose on or about 23 June 2015 or 27 July 2015, being the Appellant's first or second consultation with Dr Germain. Dr Germain was the first Doctor to evaluate, form a conclusion or express an opinion that the Appellant had sustained an injury that arose out of her employment.

Alternatively, if it is found that the Appellant's entitlement for the purposes of sections 131 and 141 of the Act arose on 3 April 2014 or on or before 3 January 2015 (being 6 months prior…

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.

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Details

Case: [2018] QIRC 103
Decision Date: 9 August 2018

CaseChat Overview and Summary

The appeal in Scofield v Workers' Compensation Regulator (No. 2) involved the appellant, who contested the Workers' Compensation Regulator's decision regarding the timeliness of her claim for workers' compensation. The appellant's claim was lodged outside the statutory six-month period following the date her entitlement to compensation supposedly arose. The primary issue before the court was whether the appellant could demonstrate a reasonable cause for the delay in lodging her claim, as required by the relevant legislation.

The court had to determine whether the appellant's entitlement to compensation arose on one of the dates she consulted with Dr Germain, or on the date Dr Zeidan issued a workers' compensation medical certificate. The court further needed to ascertain whether there was a mistake or a reasonable cause for the delay in filing the claim, as stipulated by the statutory provisions. The appellant argued that her entitlement arose on either 23 June 2015, 27 July 2015, or 20 July 2015. However, the court found that the actual assessment of her injury by a registered medical practitioner, as required by the legislation, occurred on 17 August 2015, well after the claim was filed on 3 July 2015. Moreover, Dr Germain, who assessed the appellant, was not a registered medical practitioner, thereby invalidating the claim that her entitlement arose on the dates of her consultations with Dr Germain.

The court concluded that the appellant failed to demonstrate a reasonable cause for the delay in lodging her claim. Given that the assessment by a registered medical practitioner took place after the claim was filed, and there was no evidence of a mistake or a reasonable cause for the delay, the appeal was dismissed. The court upheld the Regulator's decision and ordered the appellant to pay the respondent's costs of and incidental to this appeal.

Orders

Orders of the court

1. The appeal is dismissed;

2. The respondent's review decision dated 10 June 2016 is confirmed; and

3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed or failing agreement to be the subject of a further application to this Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In Blackwood v Toward, Martin J, President of the Industrial Court, set out the test to be applied when interpreting s 141 of the Act: 43. I now turn to the meaning of the word 'assess' in s 141(1). The word is more commonly associated with matters concerning, among other things, the determination of the value of property or the fixing of an amount of taxation which is owed. The Macquarie Dictionary (5th Edition) gives another meaning: 'to measure or evaluate' and that is the meaning which should be given to 'assess' in the context of the Act.44. In order for a doctor to 'assess' an injury as an 'injury' within the meaning of the Act there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment. It has not been established that the doctors directed themselves to that issue until the time of the making of the claim. Each of them was concerned with the treatment of Mr Toward. They knew that he had suffered injuries at various times but they did not direct their minds to the question of which physical injury, if any, arose out of employment.[8](Emphasis added)[8] [2015] ICQ 008. The appellant submits that the first time the appellant's injury was "assessed" was her first consultation with Dr Germain on 23 June 2015. It was contended that only then did a doctor evaluate, form a conclusion, or express an opinion about the appellant sustaining an injury that arose out of her employment. The difficulty that arises for the appellant is that in order for an assessment to be made for the purposes of s 141(1)(a) it must be undertaken by a doctor. As noted earlier, Schedule 6 of the Act defines "doctor" as a registered medical practitioner. The evidence before the Commission is that Dr Germain is not a registered medical practitioner but rather a clinical psychologist and as such is not able to assess the appellant for the purposes of the Act. Notwithstanding that Dr Germain is unable to make an assessment for the purposes of the Act, the appellant's contention that her entitlement for compensation arose on either 23 June 2015 or 27 July 2015 is not supported by the evidence adduced at the hearing. Dr Germain told the Commission that her assessment of the appellant was not made until 17 August 2015. It was only then that she formed the opinion that the appellant was suffering from an adjustment disorder: mixed anxiety and depressive reaction, noting that the submission of a formal complaint about alleged elder abuse was a major contributor in her neurological condition. Fatally for the appellant's case, this assessment took place after the lodgement of the application for workers' compensation on 3 July 2015. The appellant also submitted that 20 July 2015 is also a possible date of entitlement (being the date Dr Zeidan issued a workers' compensation medical certificate). It was contended: The first time Dr Zeidan turned his mind to whether the Appellant had suffered from a workplace injury was when he had a discussion with the Appellant's lawyer and issued the Appellant with a workers' compensation medical certificate on 20 July 2015. Notwithstanding that contention, the clinical notes of Dr Zeidan for 20 July 2015 do not record any history of a work related injury. Reference is made in the notes to a conversation with the appellant's solicitor, Mr Harry Day. Dr Zeidan records "…he said, according to W comp and the notes she can have certificate from 27/2/2015."[9][9] Exhibit.

Decision

Reasons for decision

In cross-examination, Dr Germain told the Commission that she reached the diagnosis of adjustment disorder, mixed anxiety and depressive reactive on 17 August 2015.[7][7] T1-29 Ll.36-38.Conclusions The appellant's case is twofold. First, it is argued that the appellant's entitlement to compensation arose on either 23 June 2015 or 27 July 2015 (that being the first or second date she consulted with Dr Germain). It is also contended that the appellant's entitlement could have arisen on 20 July 2015 (when Dr Zeidan issued the workers' compensation medical certificate). Secondly, and in the alternative, the failure to file the application for compensation was caused by mistake or a reasonable cause. In addressing those two halves of the appellant's case it is now appropriate to answer to the questions set out above in [6]. When did the appellant's entitlement to compensation rise? Section 141 provides that the time from which compensation is payable arises on the day the worker is assessed by a doctor. For the purposes of the Act, a doctor is defined in Schedule 6 as a registered medical practitioner. It is contended by the respondent that the date of assessment for the purposes of s 141(1) is 3 April 2014. This would mean that the application, which was lodged on 3 July 2015, was filed some seven months after the expiry of the statutory time period. In Blackwood v Toward, Martin J, President of the Industrial Court, set out the test to be applied when interpreting s 141 of the Act: 43. I now turn to the meaning of the word 'assess' in s 141(1). The word is more commonly associated with matters concerning, among other things, the determination of the value of property or the fixing of an amount of taxation which is owed. The Macquarie Dictionary (5th Edition) gives another meaning: 'to measure or evaluate' and that is the meaning which should be given to 'assess' in the context of the Act.44. In order for a doctor to 'assess' an injury as an 'injury' within the meaning of the Act there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment. It has not been established that the doctors directed themselves to that issue until the time of the making of the claim. Each of them was concerned with the treatment of Mr Toward. They knew that he had suffered injuries at various times but they did not direct their minds to the question of which physical injury, if any, arose out of employment.[8](Emphasis added)[8] [2015] ICQ 008. The appellant submits that the first time the appellant's injury was "assessed" was her first consultation with Dr Germain on 23 June 2015. It was contended that only then did a doctor evaluate, form a conclusion, or express an opinion about the appellant sustaining an injury that arose out of her employment. The difficulty that arises for the appellant is that in order for an assessment to be made for the purposes of s 141(1)(a) it must be undertaken by a doctor. As noted earlier, Schedule 6 of the Act defines "doctor" as a registered medical practitioner. The evidence before the Commission is that Dr Germain is not a registered medical practitioner but rather a clinical psychologist and as such is not able to assess the appellant for the purposes of the Act.

Ratio Decidendi

Legal Principle Established

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