Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator)

[2014] QIRC 187

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  

Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 187

PARTIES:  

Lyndell Cecelia Tanna (as Executor of the Estate of Ernest Valentine Tanna)
(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)
(Respondent)

CASE NO:

WC/2013/362

PROCEEDING:

Appeal against decision of Simon Blackwood (Workers' Compensation Regulator)

DELIVERED ON:

19 November 2014

HEARING DATE:

7 October 2014

MEMBER:

Industrial Commissioner Fisher

ORDERS:

1.      The application is allowed.

2.      The decision of the Regulator is set aside.

3.      The Commission substitutes another decision to waive the time limit.

4.      The matter is remitted to the Review Unit of the Regulator with directions to proceed to decide the application for review made to it on 4 July 2014.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Employer given leave to appear and be heard - Worker's diagnosis latent onset injury confirmed - Six month period for filing application expired - Worker deceased - Application instituted by executor of estate - Whether claimant's failure to lodge application within six month period due to reasonable cause - Appellant claims delay attributable to solicitor - Determined reasonable cause has been established - Application allowed and decision of Regulator set aside - Application remitted to Review Unit of the Regulator to proceed to decide the application for review.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 36A, s 131, s 141
Collin Charles Cook v Q-COMP (2008) 187 QGIG 220

Glen Trevor Churchill v Q-COMP (2009) 190 QGIG 247
Quinlivan v Portland Harbour Trust [1963] VR 25
Black v City of South Melbourne [1963] VR 34
Sophron v Nominal Defendant (1957) 96 CLR 469
Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123

APPEARANCES:

Mr T. Pincus, Counsel instructed by Slater & Gordon Lawyers for the Appellant.
Mr P.B. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator).
Ms J. McClymont, Counsel instructed by DibbsBarker Lawyers for Mount Isa Mines Limited.

Decision

1. Ernest Valentine Tanna signed an application for compensation on 2 April 2012.  The Solicitor for Mr Tanna, Carl Hughes of Slater & Gordon Lawyers, lodged the application with Xtracare, the workers' compensation insurer for Xstrata, on 27 August 2012.  The parties and the Employer, Mount Isa Mines Limited, which was given leave to appear and be heard in the proceedings, agreed Mr Tanna's diagnosis of a latent onset injury was confirmed on 18 January 2012.  The six month time period for filing the application expired on 18 July 2012.

1. Simon Blackwood (Workers' Compensation Regulator) confirmed the decision of Xtracare not to waive the statutory time frame for lodging the application in accordance with ss 131 and 141 of the Workers' Compensation and Rehabilitation Act 2003.

1. Mr Tanna passed away on 1 November 2013 and his appeal against the Regulator's decision is instituted by his widow, Lyndell Cecelia Tanna, as executor of his estate.

1. The only issue in this appeal is whether the Appellant can show Mr Tanna's failure to lodge the application within the six month period required by s 131 of the Act was due to reasonable cause.

   Legislation

2. Section 36A of the Act relates to latent onset injuries and provides as follows:

"Date of injury

(1)This section applies if a person -

(a)     is diagnosed by a doctor after the commencement of this section as having a latent onset injury; and

(b)     applies for compensation for the latent onset injury.

. . .

(3)Section 131 applies to the application for compensation as if the entitlement to compensation arose on the day of the doctor's diagnosis."

1. Section 131 of the Act provides that an application for compensation is valid and enforceable only if it is lodged within six months after the entitlement to compensation arises. Provision is made in s 131(5) of the Act for this time frame to be waived if the failure to lodge the application was for one of the reasons mentioned. Here, the reason relied on by the Appellant is reasonable cause, in particular, Mr Tanna entrusting the lodgment of the application to Slater & Gordon.

Brief Facts

1. Mr Tanna consulted Slater & Gordon on 6 March 2012 about claims he might have in relation to his diagnosis.  Both Mr Hughes and Mrs Tanna, who attended the meeting with her husband, said that time limits for lodging a workers' compensation claim were not discussed.

2. Mr Hughes sent correspondence to Mr Tanna on 27 March 2013 confirming matters discussed at their meeting earlier that month and enclosing various documents, including an application for compensation form.  Mr Tanna contacted Slater & Gordon on 30 March 2012 with some queries in relation to the forms he had been sent.  Neither Mr Hughes nor Jasmin Sears, another Solicitor with Slater & Gordon, had any independent recollection of a telephone conversation with Mr Tanna on or about that time.  They said a record would be on Slater & Gordon's file had there had been such a conversation.  No such record could be located.  In any event Mr Tanna signed the application for compensation form on 2 April 2012 and promptly returned it to Slater & Gordon.

3. Mr Hughes' letter also set out a series of steps that were to be taken including that he would request a workers' compensation medical certificate from Mr Tanna's treating specialist.  Mr Hughes said he would advise Mr Tanna when that "report" had been received.  To this end Mr Hughes undertook a number of enquiries in relation to Mr Tanna's health particularly directed towards obtaining a medical opinion that supported his illness being work related.  This took some months to obtain.

4. Slater & Gordon filed a Claim and Statement of Claim for Mr Tanna in the Supreme Court of Queensland on 27 March 2013.

5. The application for compensation was lodged with Xtracare after the six month time period provided by s 131(1) of the Act had elapsed.

Consideration and Findings

1. In other matters dealing with the late lodgment of applications for compensation, the Queensland Industrial Relations Commission[1] has adopted the reasoning of Scholl J in Quinlivan v Portland Harbour Trust[2] where the following was said in relation to the meaning of "reasonable cause":

"… refer(s) to a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."

[1] Collin Charles Cook v Q-COMP (2008) 187 QGIG 220; Glen Trevor Churchill v Q-COMP (2009) 190 QGIG 247.

[2] Quinlivan v Portland Harbour Trust [1963] VR 25, 28.

1. In Black v City of South Melbourne[3] the Full Court of the Supreme Court of Victoria held that in considering reasonable cause:

"The inquiry here appears to be of a much wider kind justifying a more liberal attitude.*  The expression 'reasonable cause' appears to us to mean some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable." (* when compared with "mistake").

The Full Court then cited with approval the dicta of Scholl J, above.

[3] Black v City of South Melbourne [1963] VR 34, 38.

1. The Applicant contends that having entrusted the matter to a solicitor who is capable and competent, the delay is attributable to the solicitor.

2. The Employer contends that although the bulk of the responsibility for late lodgment rests with Slater & Gordon, there is no principle of law that negligence or dilatory conduct of a solicitor can never be ascribed to the client.[4]  The Employer contends that Mr Tanna did nothing after the signing of the application for compensation to press for information about the progress of the matter.  His failure to do so was not therefore reasonable.

   [4] Sophron v Nominal Defendant (1957) 96 CLR 469; Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123.

3. The application for compensation sets out some important information on its cover sheet including:

   ·        that an application for compensation lodged six (6) months after the date of entitlement may not be valid; and

   ·        that a workers' compensation medical certificate must be attached to the application.

4. The Commission is satisfied based on the evidence of Mr Hughes and Mrs Tanna that Mr Tanna was not informed at the initial consultation with Slater & Gordon of any time limitation for filing an application for compensation.  Mr Hughes gave evidence that he was not certain of the time limit when he met with Mr Tanna on 6 March 2013.

5. The evidence also establishes that Mr Tanna telephoned Slater & Gordon on 30 March 2013 after he received the correspondence of 27 March 2013 but his call was not returned.  The Employer submits that by contacting Slater & Gordon Mr Tanna was a careful man, one who simply would not sign a form without clarifying issues of concern to him.  I consider the inference can be drawn that although Mr Tanna attempted to seek clarification, when Slater & Gordon did not return his telephone call promptly, Mr Tanna decided he needed to sign and return the form in a timely way in order to progress his claim.

6. Mr Tanna was aware from Mr Hughes' correspondence that a workers' compensation medical certificate was to be obtained and that Mr Hughes would contact him when the "report" was received.  I accept that some failing is attributable to Mr Tanna for not following this matter up with Mr Hughes.  Despite Mr Tanna having limited formal education, he had held responsible, senior positions from 2004 to at least 2012.  This suggests that Mr Tanna would have been capable of contacting Slater & Gordon to ascertain the progress of his case.  Whilst acknowledging Mr Tanna's illness was progressive, I do not have adequate evidence before me to determine whether Mr Tanna's health over this period would have reasonably prevented him from making relevant enquiries.

7. The use of the terms "workers' compensation medical certificate" and "report" in the same sentence of Mr Hughes' letter of 27 March 2013 is confusing but I do not consider that it is reasonable to expect Mr Tanna to have understood that in workers' compensation matters there is a considerable difference between the two.  A report is more detailed than a certificate and usually takes longer to obtain.  The consequence of deciding to obtain a report is that the lodging of an application for compensation may be delayed.

8. The evidence discloses that Mr Hughes embarked on obtaining more than a medical certificate and sought a medical opinion to support the contention that the illness was work related.  This medical opinion was not received for some considerable time and ultimately, a medical certificate was obtained from Mr Tanna's General Practitioner on 23 August 2012.  The Commission accepts the Employer's submission that the broader enquiries made by Mr Hughes were unnecessary and further, that Mr Hughes did not keep Mr Tanna updated as to his actions. 

9. In the circumstances I am of the view that a reasonable person would consider that having signed the application on 2 April 2012 and returned it to Slater & Gordon in a timely way, the responsibility rested with Slater & Gordon to do what it said it would do i.e., obtain the medical certificate and lodge it with the form within the prescribed time period.  This was not a difficult task and Mr Tanna cannot be held responsible for Mr Hughes departing from what was required to be done and which was ultimately done, viz., obtaining a medical opinion. Mr Hughes was an experienced and apparently competent Solicitor upon whom Mr Tanna was entitled to rely to do the things he said he would in a timely way but who let Mr Tanna down.[5]

   [5] Quinlivan v Portland Harbour Trust [1963] VR 25, 31.

10. In the circumstances I find that the ground of reasonable cause has been established. I allow the appeal and set aside the decision of the Regulator. The Commission substitutes another decision that is to waive the time limit in s 131(1) of the Act.

11. The parties and the Employer agreed that were the Commission to so find, the appropriate order is to remit the matter to the Review Unit of the Regulator with directions to proceed to decide the application for review made to it on 4 July 2014.  I so order.

12. Costs are reserved.

13. Order accordingly.