Toward v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 147
•17 September 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Toward v Simon Blackwood (Workers' |
| Compensation Regulator) [2014] QIRC 147 | |
| PARTIES: | Toward, Ian |
| (Appellant) | |
| v | |
| Simon Blackwood (Workers' Compensation Regulator) | |
| (Respondent) | |
| CASE NO: | WC/2014/22 |
| PROCEEDING: | Appeal against a decision of Simon Blackwood |
| (Workers' Compensation Regulator) | |
| DELIVERED ON: | 17 September 2014 |
| HEARING DATE: | 23 and 24 July 2014 |
| 26 August 2014 (Respondent's submissions) 2 September 2014 (Appellant's submissions) 10 September 2014 (Respondent's submissions in reply) | |
| MEMBER: | Industrial Commissioner Thompson |
| ORDERS : | 1. Application for compensation both valid |
and enforceable.
2. Regulator to pay the Appellant's costs
incidental to and associated with the
hearing of the jurisdictional matter.
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Validity and enforceability of the application for compensation in accordance with s 131 of the Act - Time for applying - Time from which compensation payable - Standard of proof - Witness evidence - Reasonable cause - Difference between "diagnosed" and "assessed" - Application for compensation both valid and enforceable - Regulator to pay the Appellant's costs incidental to and associated with the hearing of the jurisdictional matter. |
| CASES: | Workers' Compensation and Rehabilitation Act |
| 2003, s 32, s 36A, s 131, s 141, s 550 | |
| Armstrong v Local Government WorkCare | |
| [2014] ICQ 7 WorkCover Queensland v Downey [2001] QIC 76 Black v City of South Melbourne [1963] VR 34 Cook v Q-COMP (2008) 187 QGIG 220 Appo v Q-COMP [2003] QIC 169 Quinlivan v Portland Harbour Trust [1963] VR 25 Churchill v Q-COMP (2009) 190 QGIG 247 | |
| Q-COMP v William Green (2008) 189 QGIG 13 | |
| APPEARANCES: | Mr G. Barr, Counsel instructed by Butler McDermott Lawyers for the Appellant. Mr S. McLeod, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Decision (No. 2)
[1] On 16 January 2014, Ian Toward (the Appellant) lodged with the Industrial Registry a Notice of Appeal pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of Simon Blackwood (Workers' Compensation Regulator (the Regulator) released on 17 December 2013.
[2] The decision of the Regulator was to confirm the decision of WorkCover Queensland (WorkCover) to reject the Appellant's application for compensation in accordance with s 32 of the Act.
[3] The Appeal came on for hearing on 23 and 24 July 2014 at which time the Regulator sought to have a preliminary issue dealt with regarding the validity and enforceability of the application for compensation in accordance with s 131 of the Act.
[4] The Appellant opposed the request, with the Commission, upon hearing argument from both parties, releasing a decision from the Bench in which it was found there was a preliminary matter upon which arguments should be heard and determined prior to the substantive matter proceeding.
Relevant Legislation
[5] The relevant legislation is as follows:
"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 it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist. (5) An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to -
(a) mistake; or (b) the claimant's absence from the State; or (c) a reasonable cause."
Standard of Proof
[6] The standard of proof upon which the preliminary question must be determined is "on the balance of probabilities".
Witness Lists
[7] The witnesses for the Regulator were:
Dr David Simonds (Dr Simonds); and Dr Robert Pozzi (Dr Pozzi).
[8] The witness for the Appellant was:
Ian Toward (Toward).
Regulator
Dr Simonds
[9] Dr Simonds, a General Practitioner (GP) from Atherton, gave evidence of a consultation with Toward on 1 February 2005 and guided by the clinical notes that recorded details of the visit, indicated the reason for the visit was "left hip pain and stiffness" with information provided by Toward that he had been suffering from pain in the left hip for a lengthy period of time prior to 1 February 2005. Dr Simonds, upon reviewing an x-ray, formed the opinion that there was an old fracture to Toward's left hip region which was unhealed. A referral was given to an Orthopaedic Surgeon (Dr Pozzi) for Toward to attend and upon that attendance Dr Pozzi corresponded to Dr Simonds informing that an x-ray had shown early arthritis in the hip with some misshaping of the head of the femur.
[10] Dr Simonds saw Toward on 17 November 2009 at which time he provided a letter to him in respect of the medications he was using at the time, which included:
Glucosamine; Osteo Panadol; and Nurofen Plus.
[11] The medications were said to be used in the treatment of osteoarthritis (Osteo Panadol) and painkiller and anti-inflammatory drugs which Dr Simonds accepted related to a number of injuries.
[12] On 10 December 2010 Toward again consulted Dr Simonds with the clinical notes recording the reason for the visit as "hip pain ages" which related to the continuation of the pain he had been experiencing for some time. Toward sought treatment with him again on 29 December 2010 where it was recorded:
"Hip pain ages. Can't sleep with pain. Started with injury on horse. Had a
fracture in the hip".
[13] An x-ray was ordered with the findings identified in a report as:
"Significant degenerative changes with loss of joint space and sclerosis at the articular surfaces are noted in the left hip joint. A large osteophyte is noted at the left femoral head. A small boney fragment projecting contiguous to the
upper left acetabulum…"
[14] Dr Simonds accepted the x-ray finding was non-specific. Medication prescribed (at that time) included Feldene and Osteo Panadol.
[15] Dr Simonds' evidence went then to 8 July 2013 when Toward again presented for a consultation with the clinical notes recording that he had:
"Left hip pain also restricting him. It started long time ago with injury in
racing."
Dr Simonds' evidence was as a result of sustaining "that" injury to his hip in 2004 (that was not treated at the time) he then developed osteoarthritis to the left hip region.
[16] Dr Simonds' clinical notes of a consultation on 16 July 2013 recorded a history regarding the severe arthritis in Toward's left hip based on an injury that occurred on 21 August 2004.
[17] Under cross-examination, Dr Simonds described the clinical notes of the consultation on 16 July 2013 as "memory joggers" which confirmed he had questioned Toward about whether the injury was related to work. He was sufficiently satisfied in the consultation that work was a factor and issued him with a certificate to start the claim [Transcript p. 1-40]. Toward had not reported hip pain to Dr Simonds at any time prior to 1 February 2005 [Transcript p. 1-42]. Following the consultation with Dr Pozzi in April 2005, Dr Simonds saw no need to speak to Toward regarding Dr Pozzi's opinion nor did he give advice to him with regards to ceasing to ride horses [Transcript p. 1-44]. Dr Simonds confirmed that on 17 November 2009 Toward was still suffering from pain which was manageable and was not given advice to end his career as a Jockey [Transcript p. 1-45].
[18] On 16 July 2013 was the first time Toward discussed with him a WorkCover claim in respect of his left hip [Transcript p. 1-46].
Dr Pozzi
[19] Dr Pozzi, an Orthopaedic Surgeon, first saw Toward on 22 April 2005 at which time he provided a report to the referring GP (Dr Simonds). Dr Pozzi confirmed the content of the report which included comment regarding "increasing problems with his left hip over the last six months" and some early signs of "early arthritic hip symptoms". At the time there was a suggestion of him having a fracture to his acetabulum. Dr Pozzi next saw Toward on 11 July 2013 after which he forwarded a letter to Dr Simonds in which he made a reference to having "looked after" him in the past regarding the development in his left hip of arthritis. He further opined that he would benefit from a hip replacement.
[20] Under cross-examination, Dr Pozzi was firstly questioned on the consultation with Toward in 2005 and in particular a specific incident of being upside down in the stalls with a horse on top of him that had caused him to suffer pain in the left hip region [Transcript p. 2-8]. Upon viewing x-rays at the time, he formed the view about the presence of an unhealed fracture to the acetabulum that would have come about from some quite significant force [Transcript p. 2-8]. Toward's condition was manageable at the time but he was told it would become progressively worse. There was no suggestion at the time Toward should cease riding [Transcript p. 2-11].
[21] He saw Toward on 11 July 2013 following a referral from Dr Simonds at which time (following the viewing of x-rays) he formed the view the left hip was quite significant and required some attention in the form of a hip replacement [Transcript p. 2-12]. Dr Pozzi said to him at that time "mate, you're starting to get to the point when things are going to get difficult to do your job" [Transcript p. 2-13].
[22] A report by Dr Pozzi was provided to WorkCover on 17 April 2014 in which he stated: "To cut a long story short, my understanding of the circumstances are that we were waiting for WorkCover approval for Ian's [Toward's] hip and knee. There was a complexity in regards to the acceptance of the hip arthritis as a post traumatic WorkCover related claim. Eventually when I went through his notes, it became apparent that he had most likely suffered an acetabular fracture in the performance of his duties in the past and had gone on to develop post traumatic arthritis as a consequence of that." [Transcript p. 2-13]
[23] Dr Pozzi confirmed his opinion in the correspondence to WorkCover was honestly held and that there was enough evidence in the history for him to believe that there was some WorkCover liability for Toward's hip injury [Transcript p. 2-14].
Appellant
Toward
[24] Toward, a Jockey by occupation, gave evidence of injuring his left hip in a barrier accident at Innisfail around 21 August 2004 when a horse became unruly and flipped over on top of him. He was in quite a lot of pain at the time and was forced to lay on the track for a time prior to getting up and walking around. There were two Ambulance Officers present at the time who looked him over basically undertaking "observations". He was taken back to the jockey's room where he iced his hip and top of the leg area. At the time bruising came out and he continued to treat the injury by icing the area and rubbing cream on the affected area.
[25] Later that day he rode other horses and was back riding track work the following Wednesday although he was still very sore. It took a couple of weeks before he returned to his full level of duties, although he was not pain free.
[26] On 1 February 2005 he attended Dr Simonds whom he had seen over a number of years and was sent for an x-ray of the hip and later referred to Dr Pozzi. At the consultation with Dr Pozzi he informed him of the barrier stall injury at Innisfail on 21 August 2004 and was prescribed painkillers for an unhealed fracture of the acetabulum joint. There was no other medical treatment offered nor was there suggestions about whether he should consider his riding activities.
[27] Over a period of years the pain became worse and continued to be addressed through the use of painkillers and anti-inflammatories. In that period of time he had no time off work but had there been time off he would have lodged an application for workers' compensation. As time progressed his condition deteriorated to a stage where he could not ride which led him to see Dr Simonds in July 2013 where he was told that he basically needed a hip replacement with him [Dr Simonds] "sort of" saying he should lodge a WorkCover claim. He was again referred to Dr Pozzi in July 2013 with regards to his knee and hip.
[28] Toward recalled getting assistance from Dr Simonds to lodge his application for compensation online. After a period of time he received correspondence from WorkCover (on 4 November 2013) advising that his application for compensation had been declined. A review by the Regulator confirmed the decision of WorkCover.
[29] The reason the application for compensation was not lodged in 2005 was because he never actually stopped working and only lodged a claim when he could no longer continue to work. Prior to July 2013 he had not received any medical certificates because of incapacity to work.
[30] Under cross-examination, Toward gave evidence of the barrier stall incident in August 2004 and of the pain associated with the injury [Transcript p. 2-29]. It was only when he had felt a stabbing pain in February 2005 that he decided to consult with Dr Simonds [Transcript p. 2-30]. There was a consultation with Dr Pozzi who told him he might have an unhealed fracture to the left hip region and osteoarthritis had set in [Transcript p. 2-31]. In the period of time in question, Toward conceded he likely had a number of falls and incidents whilst working as a Jockey [Transcript p. 2-31]. Toward also conceded it was fair to suggest from medical notes (of Dr McLennan) that in April 2007 he was experiencing pain in the left hip region and constantly taking medication such as Osteo Panadol and Nurofen. In December 2010 his hip was not improving at which time he visited Dr Simonds who opined he had developed hip arthritis [Transcript p. 2-32].
[31] In July 2013 Toward made the application for compensation in relation to the osteoarthritis in his left hip because he was going to have time off work as he needed a hip replacement [Transcript p. 2-33].
[32] Toward had previously accessed WorkCover when he was "solely" off work and did not realise he could apply for WorkCover whilst he was still working.
Submissions
Regulator
[33] The issue for determination was whether the Appellant's application for compensation lodged with WorkCover on or about 17 July 2013 complied with s131 of the Act. The decisions of both WorkCover and the Regulator did not consider whether or not s 131 of the Act had been complied with by the Appellant.
[34] Background facts included:
a contention by the Appellant that on 21 August 2004 he sustained an injury to his left hip when a horse flipped in barrier stalls at the Innisfail Races pinning him upside down on the back of the barriers;
at the relevant time he was of horseracing Jockey employed by
Queensland Racing Limited;
in the decision of WorkCover (4 November 2013) the application for compensation was not accepted on the basis that he had not sustained an injury within the meaning of s 32 of the Act. In short WorkCover had not been satisfied there was sufficient medical evidence to support the claim. The Regulator in a decision dated 17 December 2013 confirmed the WorkCover decision; and
whilst there was a suggestion from the medical evidence that the Appellant suffered a fracture injury to the left hip on 21 August 2004, it is important to note that the injury claimed in the application is that of osteoarthritis to the left hip and not any fracture injury.
[35] Section 131 of the Act 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 it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist.
(5) An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to -
(a) mistake; or (b) the claimant's absence from the State; or (c) a reasonable cause."
[36] Section 141 of the Act provides:
"141 Time from which compensation payable
(1) The entitlement to compensation for an injury arises on the day the
worker is assessed by -
(a) a doctor; or (b)
if the injury is a minor injury - a nurse practitioner acting in accordance with the workers' compensation certificate protocol; or
(c)
if the injury is an oral injury and the worker attends a dentist - the dentist.
(2) However, any entitlement to weekly payment of compensation
starts on -
(a)
if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury - the day after the worker stops work because of the injury; or
(b)
if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury - the day the doctor, nurse practitioner or dentist assesses the injury.
(3) Subsections (1) and (2) are not intended to limit any availability for
compensation for the day of injury provided for under part 8.(4) Subsection (2) is subject to section 131(2)."
[37] Medical evidence before the proceedings confirms the Appellant saw Dr Simonds on 1 February 2005 with the consultation notes taken by Dr Simonds stating the following:
"Pain ages L hip but today sudden pain on lifting legs up
…
Poor Rom L Hip!!!
Reason for visit:
L Hip pain and stiffness".
[38] An x-ray taken at the time in relation to the Appellant's left hip confirmed the following:
"X-Ray shows? Old Fracture of L acetabulum unhealed.
…
Prescription printed
VOLTAREN."
[39] There were further visits to the Alice Street Medical Centre where consultations occurred with various General Practitioners regarding the Appellant's left hip. These took place on:
20 April 2007; 23 May 2008; 17 November 2009; 29 December 2010; and 25 May 2012.
[40] Dr Simonds' evidence was that the Appellant's left hip injury was as a result of the 2004 incident and whilst there was no record of him having informed the Appellant in 2005 of the x-ray report, he suggested that his usual practice would have been to have done that.
[41] Dr Pozzi had seen the Appellant following the 2004 incident and he confirmed that he had made a recommendation to the Appellant at the time to take anti-inflammatory medication, advising the Appellant that his condition would progressively become worse. He next saw the Appellant on 11 July 2013 forming the view at that time that a hip replacement was warranted.
[42] The Appellant confirmed in his evidence that there was a barrier incident on 21 August 2004 at the Innisfail Races which caused an injury described as being "just all down my left side and around my hip area and my left leg". He subsequently received assistance from two Ambulance Officers and after ice was applied to the area in question he further participated in racing activities that day. The following Wednesday the Appellant did some track work but was still suffering a lot of soreness around the left side of the buttock and his hip area and it was not until a couple of weeks later that he resumed a full level of duties, back riding normally thereafter but still experiencing soreness in the hip region.
[43] It was not until 1 February 2005 that he decided to consult a doctor and following the consultation he had been referred to Dr Pozzi for specialist treatment. The Appellant recalled seeing various practitioners at the Alice Street Medical Centre where he was required to obtain a medical certificate each year for Queensland Racing. On those occasions he had discussed his continuing problems with the hip. He recalled that the injury deteriorated over the years however he kept riding despite being in a lot of pain ultimately reaching a point where the movement of lifting his leg into the actual stirrup was causing him "a lot of drama in the end". In July 2013 Dr Simonds had advised that he needed a hip replacement and it was suggested he should lodge a WorkCover claim. He had previously, according to his evidence, not lodged an application for compensation because he had no time off work and no one had suggested he make a claim. At no time prior to 2013 had the Appellant discussed with his doctors the lodgement of a workers compensation claim nor had he received medical certificates in respect of any incapacity to work.
[44] In cross-examination, importantly the Appellant acknowledged he was aware that the osteoarthritis was as a result of the August 2004 incident and clearly that was the reason he had consulted various General Practitioners up to 2010 with his awareness arising from various assessments made by General Practitioners.
[45] The contention of the Regulator was that the Appellant's application for compensation had not been lodged within six months of the date upon which the entitlement to compensation arose and therefore there is no basis to waive the time period under s 131(5) of the Act therefore it follows the application for compensation is not compliant with s 131 of the Act.
[46] It is evident that the Appellant had sought medical treatment in February 2005 due to continual pain in the left hip and he then saw Dr Pozzi in April 2005 where he was advised of early stages of arthritis in the left hip. He continuously consulted various General Practitioners between 2007 and 2010 for treatment for osteoarthritis and medication was prescribed to reduce the pain. From the Appellant's own evidence the time for lodging the application was well before 17 July 2013 having been aware from advice of the medical practitioners that the osteoarthritis was as a result of the 2004 incident.
[47] The Regulator cited the matters of:
[1] Armstrong v Local Government WorkCare [2014] ICQ 7[2] WorkCover Queensland v Downey [2001] QIC 76
Armstrong v Local Government WorkCare[1] (Armstrong); and WorkCover Queensland v Downey[2] (Downey).
[48] Armstrong related to a latent onset injury which had been diagnosed by a General Practitioner in 2007 as a skin disease that was malignant however the application for compensation had not been made within the timeframe provided by s 131 of the Act. The Appellant's argument (in Armstrong) observed by Martin P was that the word "diagnosed" as found in s 36A(1)(a) should be read as going beyond the mere identification of a latent onset injury and include the connection that the injury has with the workers employment. The Respondent had contended that s 36A(1)(a) did not require the need for a doctor to inform the patient what the diagnosis was and as such the Appellant's argument was rejected on the basis that diagnosis concerns the identification of a medical condition. The reasoning applied by Hall P in Downey when considering ss 131 and 141 was neither necessary nor appropriate with Martin J stating at paragraph 32:
"Whether the applicant has been told what caused the injury is not relevant to s 36A. It, and s 131, provide an applicant with a six month period in which to determine whether to make an application."
[49] It had been held by Hall P that s 131(1) needed to be read in conjunction with s 141(1)(a) with the outcome that the entitlement to compensation should be read as meaning "assessed by a doctor as a resulting in total or partial incapacity for work". In light of the Martin P finding the reasoning of Hall P was incorrect and should not be followed. S 141(1) refers to an assessment which can only relate to an assessment of an injury, whereas s 141(2) requires an assessment for incapacity for work with a partial or total. The date of assessment was said not to materialise only where there had been an assessment of incapacity for work but can occur when there is an assessment of the injury itself which is the case with osteoarthritis. Furthermore the artificiality in the reasoning of Downey is demonstrated by the fact that a medical condition would always require an assessment for incapacity for work yet in the present case no such certificate and has ever been made. If Downey was followed and having regard to the fact that the Appellant has never been so certified then time would not commence to run until such a certification had been undertaken. It was submitted that is why Martin P reasoned as he did in Armstrong and disapproved the approach in Downey.
[50] The Appellant has in this matter provided no basis warranting the Commission waiving the time period under s 131(5) of the Act.
[51] Simply because the Appellant did not have any time off work or may not have been aware of the time limitation period or that he may have been unaware that he could lodge an application despite continuing to work does not amount to a mistake - see Black v City of South Melbourne[3]. There was no evidence from the Appellant he had been absent from the State which warranted any reason for failing to lodge his application within the prescribed time frame.
[3] Black v City of South Melbourne [1963] VR 34[52] In respect of "reasonable cause" the Commission was taken to the matter of Cook v Q-COMP[4] where the Linnane VP had observed:
"As Sholl J stated in Quinlivan v Portland Harbour Trust [1963] VR 25 at p. 28
a 'reasonable cause' is one:'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.'."
[4] Cook v Q-COMP (2008) 187 QGIG 220
[53] The Appellant was plainly aware his condition was as a result of the 2004 incident and importantly he had been assessed as such by various medical practitioners but had made a conscious decision to continue to work whilst seeking medical attention over a lengthy period of time and medicating in that time to reduce the pain associated with osteoarthritis.
Appellant
[54] In terms of background, on 17 July 2013 the Appellant lodged an application for compensation with WorkCover for an injury described as osteoarthritis of the hip that he had sustained in the course of his employment as a Jockey on 21 August 2004. The application was rejected by WorkCover and upon review the Regulator which led to the lodgement of this appeal.
[55] On 23 July 2014 the Commission ordered that a preliminary issue regarding the validity and enforceability of the Appellant's application for compensation should be disposed of in the first instance requiring the preliminary issue as to whether the application for compensation had been made outside of the time limit for applying be determined.
[56] The Regulator contended that the application for compensation was not made within the time limited by 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 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 it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist. (5) An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to -
(a) mistake; or (b) the claimant's absence from the State; or (c) a reasonable cause."
[57] The applicable time limit imposed by s 131(1) of the Act was therefore six months from the date on which the entitlement to compensation arises. In order then to determine whether the application for compensation is within time, a determination must first be made as to when the entitlement to compensation arose. That issue is dealt with in s 141 of the act:
"141 Time from which compensation payable
(1) The entitlement to compensation for an injury arises on the day the
worker is assessed by -
(a) a doctor; or (b)
if the injury is a minor injury - a nurse practitioner acting in accordance with the workers' compensation certificate protocol; or
(c)
if the injury is an oral injury and the worker attends a dentist - the dentist.
(2) However, any entitlement to weekly payment of compensation
starts on -
(a)
if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury - the day after the worker stops work because of the injury; or
(b)
if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury - the day the doctor, nurse practitioner or dentist assesses the injury.
(3) Subsections (1) and (2) are not intended to limit any availability for
compensation for the day of injury provided for under part 8.(4) Subsection (2) is subject to section 131(2)."
[58] The relevant aspect for the present purposes is that contained in s 141(1)(a) namely the day the worker is assessed by a doctor. Provisions materially identical to ss 131 and 141 were contained within ss 158 and 168 of the WorkCover Queensland Act 1996. The provisions of the former Act have long been understood to have the meanings attributed to them by Hall P in Downey where he stated:
"Because subs. (2) operates as an exception to or a limitation upon the operation of subs. (1), it seems to me that the expression 'assessed by a doctor' (or for that matter 'assessed by a dentist') must be taken to mean 'assessed by a doctor as resulting in total or partial incapacity for work'. I.E., where the commencement of the limitation period is said to be triggered by the activity of a doctor, it is necessary to show that a doctor has assessed the alleged injury as involving partial or total incapacity. The exception or limitation at s. 168(2) both protects the worker against a doctor retrospectively unleashing the limitation period by an assessment that the total or partial incapacity was present many months ago, and protects insurers against an assessment that total or partial incapacity has been present for a few months. The legislature must have intended that s. 168 will be used in the interpretation of s. 158. The legislature had both sections present to the mind at the same time. Section 168(4) expressly refers back to s. 158(2)."
[59] The contention of the Regulator that the recent decision in Armstrong has undermined the decision of Downey was said to be flawed and that Downey remains good law.
[60] In Armstrong the injury was in simple terms a skin cancer where the provisions of s 36A of the Act dealt with whether the injury was a "latent onset injury" within the meaning of that term as it was used in the Act. The determination of the time limit for lodging an application for compensation fell to be considered within the rubric of a latent onset injury and for that reason the application in Armstrong was fundamentally different by virtue of the different language used in s 36A:
"36A 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. (2) The following questions are to be decided under the relevant compensation Act as in force when the injury was sustained -
(a)
whether the person was a worker under the Act when the injury was sustained;
(b)
whether the injury was an injury under the Act when it was sustained.
(3) Section 131 applies to the application for compensation as if the entitlement to compensation arose on the day of the doctor's diagnosis. (4) Subject to subsections (2) and (3), this Act applies in relation to the person's claim as if the date on which the injury was sustained is the date of the doctor's diagnosis."
[61] It was submitted that s 36A does not apply in these circumstances as the Appellant does not suffer from nor is it alleged that his osteoarthritic condition amounts to an insidious disease that brings it within the terminology of a "latent onset injury". In Armstrong the Court was required to consider the significance of the word "diagnosed" in s 36A and in particular whether that word should be given the same or a different interpretation as the word "assessed" that appears in s 141(1) of the Act. It was the word "assessed" that Hall P defined in Downey.
[62] The submission cited Armstrong paragraphs 28 to 32 inclusive where it was said Martin P had concluded that "diagnosed" meant something different to "assessed" and in doing so did not purport to overrule or reinterpret the long-standing definition of "assessed" as it is used in s 141(1) of the Act. He merely found that the same interpretation did not and could not apply to the word "diagnosed" as it was used in s 36A. Support for that view was reinforced in what was submitted as an endorsement of the interpretation by Hall P in Armstrong at paragraph 29:
"The use of different words - 'assessed' in s 141 and 'diagnosed' in s 36A - strongly suggests that a different meaning is intended. The word 'assessed' is used elsewhere in the Act in relation to the degree of impairment that an injured worker has suffered, e.g., s 132A(2), s 178(2), s 179, s 182 and s 186. The construction favoured by Hall P is consistent with that use of 'assessed' in those provisions."
[63] In respect of s 36A which was inserted into the Act in late 2005 after the legislature were aware of the decisions of Hall P in Downey and Appo v Q-COMP[5] there was no legislative alteration or clarification of the conclusions reached about the interpretation of the word "assessed". That a different interpretation was intended by the insertion of 36A may also be indicated by the deeming provision in subsection (3) thereof which expressly provides that in a latent onset injury case, the relevant date for s 131 is the date of diagnosis. Absent such express statement in section 36A(3), the date of "assessment" would still apply and may produce a different result than intended in cases of latent onset injuries.
[5] Appo v Q-COMP [2003] QIC 169[64] In this matter it is only the term "assessed" that is relevant and it is submitted that consistent with Downey "assessed" means assessed by a doctor as resulting in total or partial incapacity for work".
[65] The submission challenged the position of the Regulator with regards to subsections (1) and (2) must be read separately suggesting that in Downey it demonstrates that subsection (2) operates as an exception or limitation upon the operation of subsection (1). In other words, it seeks to limit the exposure of the insurer to damages in certain circumstances where the worker stops work either at the time he or she is assessed by a doctor as incapacitated for work, or on some other date. Subsection (2) does not introduce a new definition nor a new defined term. It is still concerned with the term "assessed".
[66] It was submitted that to be consistent with the plain wording of ss 131 and 141 and the interpretation of Hall P in Downey that the entitlement to payments of weekly benefits with or without medical and rehabilitation costs would be tied up with the assessment by a doctor that a person is incapacitated for work by reason of their injury, whether totally or partially.
[67] Ultimately an application for compensation must be made within six months of being assessed by a doctor as having sustained an injury resulting in total or partial incapacity for work.
[68] There was no evidence that at any time prior to 17 July 2013 when the application for compensation was lodged that Toward had been assessed by a doctor to be suffering from osteoarthritis then rendered totally or partially incapacitated for work.
[69] The submission summarised the evidence from the Appellant commencing with the incident at the Innisfail Races on 21 August 2004 when he was thrown from a horse whilst in the barriers which resulted in him suffering a lot of pain down his left side, hip area and left leg. There was treatment provided by two Ambulance officers on the day however there was no medical attention sought at the time. He eventually returned to full duties following a gradual "build up" and it was not until a few months later that he attended upon Dr Simonds (his usual General Practitioner) who referred him for an x-ray and subsequently an appointment with an Orthopaedic Surgeon.
[70] Consultations took place between 2005 and 2013 with his General Practitioners however it was not until July 2013 that the symptoms became "bad" to the point that a hip replacement was warranted. It was at this time the application for compensation (dated 17 July 2013) was lodged and had no time prior had the Appellant received a medical certificate indicating that he should lodge an application for compensation because of an incapacity for work.
In terms of the medical evidence both Dr Simonds and Dr Pozzi had never assessed the Appellant as totally or partially incapacitated for work at any time prior to the lodgement of the application for compensation. There is no basis upon which a conclusion could be reached that either Dr Simonds or Dr Pozzi had recommended that he cease his activity as a Jockey in the time relevant to this matter.
Primary Conclusion
[72] In the absence of evidence that the Appellant had been assessed by a doctor as having suffered an injury resulting in total or partial incapacity for work on a date more than six months prior to the lodgement of his application for compensation on 17 July 2013 the application was made within the time prescribed by s 131 of the Act. The argument of the Regulator that the application is not valid or enforceable ought therefore be dismissed and the matter proceed further on the substantive issues for determination.
Alternate Conclusion
[73] If it was found that the application for compensation was lodged outside of the six months permitted by s 131 of the Act then consideration must be given as to whether any of the matters contained in s 131(5) are met. It was submitted that the Commission would be satisfied that the six month time limit should be waived because there exists a "reasonable cause" as referred to in s 131(5)(c) of the Act. The submission relied upon "reasonable cause" as endorsed and adopted in Quinlivan v Portland Harbour Trust[6] going onto the advice of Dr Pozzi in April 2005 that:
[6] Quinlivan v Portland Harbour Trust [1963] VR 25"His hip process is starting to become symptomatic and I have advised him about simple analgesic and anti-inflammatory management issues. I think they are reasonable and will be adequate for him in the short term, through if it worsens we may need to look at other options. I don't think the bone is in the joint and causing any specific mechanical symptoms, though occasionally a hip arthroscopy is necessary to clarify all this in young people.
At this point I have told him to go away and take some more regular simple anti-inflammatories such as Panadol and Nurofen and he has a script for some prescription anti-inflammatories for bad days.
I'll happily see him back when he worsens."
[74] The Appellant had not been told he should cease to ride and continued to do so, following the advice of the Orthopaedic Surgeon and managing his pain through analgesics and anti-inflammatories until it worsened to a degree that he again visited the Orthopaedic Surgeon in 2013 where the recommendation for invasive treatment was made. Once that occurred the Appellant acted promptly and lodged his application for compensation.
[75] In the circumstances it is submitted that the actions of the Appellant were entirely reasonable and satisfy the requirements of a "reasonable cause" as described in Cook v Q-COMP[7] and as applied in Churchill v Q-COMP[8] by Fisher C such that the Commission would exercise the discretion vested by s 131(5) by finding the application for compensation was valid and enforceable despite not being lodged within the six month period prescribed by s 131(1).
[7] Cook v Q-COMP (2008) 187 QGIG 220[8] Churchill v Q-COMP (2009) 190 QGIG 247Regulator in reply
[76] The Regulator in reply addressed the contention of the Appellant that consistent with Downey the word "assessed" for the purposes of s 141(1)(a) of the Act means "assessed by a doctor as resulting in total or partial incapacity for work" and that an application for compensation must be made within six months of the worker being assessed by a doctor as having sustained an injury resulting in total or partial incapacity for work. Consequently, on the Applicant's argument, there is no evidence that at any time prior to 17 July 2013 (when the application for compensation was lodged) that the Appellant had been assessed by a doctor to be suffering from osteoarthritis that then rendered him totally or partially incapacitated for work.
[77] The contentions of the Appellant were said to be legally misconceived and should be rejected.
[78] The submission the relied upon Armstrong where the first issue for Martin P had been to examine the ambit of what "diagnosed" in s 36A(1)(a) meant. In particular the alternate of the Appellant's argument that the meaning of "diagnosis" should be read in the same way that Hall P read "assessed" as it appeared in s 168 of the WorkCover Queensland Act 1996 with it being noted that ss 158 and 168 of that statute are identical to ss 131 and 141 of the Act.
[79] His Honour concluded that the use of the words "assessed" and "diagnosed" in s 36A strongly suggested that different meanings were intended. Consequently concluded that:
"The reasoning applied by Hall P with respect to 'assessed' in the predecessor to s 141 is neither necessary nor appropriate to discern the meaning of 'diagnosed' or 'diagnosis'."
[80] His Honour ultimately concluded that it was unnecessary for a doctor to make a specific diagnosis that the Appellant had a "latent onset injury" for an "insidious disease" for the purposes of s 36A of the Act because if the disease which is diagnosed as an insidious disease, then that will be sufficient to satisfy the section. It followed, based on the medical evidence that the worker had not lodged his application for compensation within the six month period stipulated within s 131(1).
[81] The Regulator submitted that s 141 of the Act should as a matter of statutory construction, each subsections (1) and (2) should be read separately because the respective subsections deal with separate and distinct matters. Importantly s 141(2) deals with an entitlement to weekly payment of compensation that will arise if a doctor assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury. S 141(1)(a) was said not to be dependent on s 141(2)(a) occurring in that a worker can be assessed for an injury arising from his or her employment but not be assessed as stipulated in s 141(2)(a). This was precisely what had was transpired in Armstrong (albeit the worker has been diagnosed with an insidious disease) and has occurred in this case. It cannot be the intention of the legislation for a worker to adopt a "wait and see" approach to lodge an application for compensation outside the six month time period when particular circumstances warranted.
[82] The medical certificate issued by Dr Simonds on 16 July 2013 made a diagnosis of "severe arthritis [left] hip" and certified that he was fit to return to normal duties from 16 July 2013. No assessment of any total or partial incapacity for work was made because of the Appellant's injury.
[83] The submission concluded with reference to the evidence of the Appellant and his awareness in April 2005 that the osteoarthritis was a result of the August 2004 incident and the awareness continued with respect to subsequent visits to various General Practitioners between 2005 and 2010 and the Orthopaedic Surgeon in July 2013. It was said to be irrelevant that he continued to ride and immaterial that the General Practitioners and the Orthopaedic Surgeon had not advised him to cease his riding activities.
[84] The Appellant was assessed on various occasions in respect of his claimed injury between 2005 and 2010 and because of that is entitlement to compensation arose on those various occasions and the time limit commenced thereafter. Accordingly, the Appellant's application for compensation does not conform with s 131(1) of the Act as it has been lodged outside the six month period and is unenforceable.
Conclusion
[85] The matter for determination is whether the application for compensation lodged by Toward on 17 July 2013 was valid and enforceable pursuant to s 131 of the Act.
[86] The question regarding the validity of the application for compensation was raised by the Regulator on the first day of hearing of an appeal against the decision of the Regulator (released on 17 December 2013) that confirmed the decision of WorkCover to reject the application for compensation in accordance with s 32 of the Act. It is a matter of record that in disposing of the application, WorkCover did not consider whether the application was compliant with the provisions of s 131(1) despite the application for compensation (of 17 July 2013) identifying the injury had been sustained on 21 August 2004.
[87] In the course of the proceedings the following chronology of events emerged:
Toward alleged that he suffered an injury to his left hip when a horse "flipped" on him in the barrier at the Innisfail Races on 21 August 2004;
two Ambulance Officer's present "looked him over" with the only form of
treatment being the "icing" of his hip and top of the leg area; the incident did not prevent him from continuing to ply his occupation as
a Jockey with his participation in other races that day;
over the following couple of weeks he continued to ride track work and eventually returned to his full level of duties despite there being elements of pain still present;
Toward first raised the matter of his injury with his General Practitioner on 1 February 2005 at which time he was sent for an x-ray and subsequently referred to an Orthopaedic Surgeon;
Toward consulted with the Orthopaedic Surgeon on 22 April 2005 where a report from the Surgeon indicated there was some early arthritis with the treatment offered being that he take regular anti-inflammatories such as Panadol and Nurofen. The report referenced the hip problems being over the last six months and an incident of a horse on top of him whilst he was upside down;
the medical records of the Alice Street Medical Centre recorded further consultations with various General Practitioners where references were made specifically to issues relating to pain in the left hip region. Consultations occurred on:
20 April 2007; 23 May 2008; 17 November 2009; 29 December 2010; and 25 May 2012.
[88] On 8 July 2013 Toward attended Dr Simonds who in his clinical notes recorded:
"Left hip pain also restricting him. It started long time ago with injury in
racing."
Dr Simonds' evidence was that the injury to his hip in 2004 was not treated and he subsequently developed osteoarthritis to the left hip region.
[89] On 11 July 2013 Dr Pozzi upon seeing Toward for the second time gave evidence of informing Dr Simonds he "would benefit from a hip replacement".
[90] Toward had a follow up consultation with Dr Simonds on 16 July 2013 and upon Toward confirming that the injury to his hip was related to work he issued a Workers' Compensation Medical Certificate [Exhibit 1] to start the claim.
[91] The Act at s 132(3) states:
"(3) The application must be accompanied by -
(a) a certificate in the approved form given by - (i) a doctor who attended the claimant; or
(ii) if the application relates to a minor injury - a nurse practitioner who attended the claimant and who is acting in accordance
with the workers’ compensation certificate protocol; and
(b) any other evidence or particulars prescribed under a regulation."
[92] The certificate issued by Dr Simonds identified the:
stated date of injury as 21 August 2004; first time the worker was seen at the practice for the diagnosed injury as
16 July 2013; and the injury was diagnosed as "severe arthritis L hip".
The certificate in terms of capacity for work indicated Toward was fit to return to normal duties on 16 July 2013, the same day as the certificate was issued.
[93] The Regulator in opposing the validity and enforceability of Toward's application for compensation relied upon the authority of Armstrong and in particular the finding of the meaning of "diagnosed" at s 36A(1)(a) of the Act which was said to have undermined the decision of Downey.
[94] In firstly addressing Armstrong, the matter before the Court related to a "latent onset injury" which is defined in Schedule 6 of the Act as an "insidious disease". Martin P was not required to address the issue of an "insidious disease" in Armstrong as it was not a matter of contest between the parties although at paragraph 6 of his decision stated:
"Insidious disease is not defined in the Act, but, in these circumstances, it may be taken to mean a disease which develops gradually and imperceptibly. It is not in contest that solar induced skin cancer is an insidious disease."
[95] In the matter of Q-COMP v Green[9], Hall P in respect of an insidious disease stated:
[9] Q-COMP v William Green (2008) 189 QGIG 13"Having regard to the third meaning of 'insidious' developed by the Macquarie Dictionary (2nd Revised Ed), viz., 'operating as proceeding inconspicuously but with grave effect, an insidious disease', I share the view that 'lung cancer' is a 'latent onset injury'."
[96] In the course of this appeal there was no requirement to consider a "latent onset injury" and the reliance on s 36A(1) of the Act in respect of "diagnosis" by a doctor on the commencement of a "latent onset injury" is of limited relevance in the point to be decided by the Commission.
[97] At s 36A(3) of the Act there is reference to s 131 of the Act applying to an application for compensation as if the entitlement to compensation arose on the day of the doctor's diagnosis.
[98] Further in Armstrong Martin P considered argument on the meaning of "diagnosis" with a submission being advanced that "diagnosis" should be read in the same way that Hall P had read "assessed" as it appeared in Downey.
[99] In paragraphs 29 to 32 (inclusive) in Armstrong, Martin P provided the following comment:
"[29] The use of different words – 'assessed' in s 141 and 'diagnosed' in s 36A – strongly suggests that a different meaning is intended. The word 'assessed' is used elsewhere in the Act in relation to the degree of impairment that an injured worker has suffered, e.g., s 132A(2), s 178(2), s 179, s 182 and s 186. The construction favoured by Hall P is consistent with that use of 'assessed' in those provisions.
[30] The word 'diagnosis' is only used in two sections – s 36A and s 39A. In
the latter section it is concerned with the diagnosis of a terminal condition.
In both sections it concerns the identification of a medical condition.[31] It is not uncommon for resort to be had to dictionaries to assist in determining the meaning of a word in a statute. The Macquarie Dictionary
and the Australian Oxford Dictionary disclose what might be expected –
'diagnosis' is the identification of a disease. Some dictionaries, though, do include in the definitions of 'diagnosis' a reference to assigning a cause of the disease which has been diagnosed. The relevant conclusion to be drawn from the many dictionary definitions is that assignment of a cause of a disease is not a necessary part of the definition.
[32] The reasoning applied by Hall P with respect to 'assessed' in the predecessor to s 141 is neither necessary nor appropriate to discern the meaning of 'diagnosed' or 'diagnosis'. Section 36A fulfils a different function. For example, s 36A(2) directs someone (presumably the insurer) to decide whether the applicant was a worker under the Act and whether the injury was an injury under the Act. In other words, the aetiology of the injury is to be determined by someone else. Whether the applicant has been told what caused the injury is not relevant to s 36A. It, and s 131, provide an applicant with a six month period in which to determine whether to make an application."
[100]I do not accept the argument of the Regulator that the decision of Martin P in Armstrong had the effect of disapproving the approach in Downey and am inclined to agree with the position offered by the Appellant that Downey remains good law.
[101]To determine if the application for compensation made by Toward on 17 July 2013 was valid and enforceable the Commission must take into account the relevant sections of the Act and whether the application was compliant with those sections.
[102]The application in accordance with s 131(1) of the Act to be legitimate must have been lodged within six months of the entitlement arising. The entitlement for compensation pursuant to s 141(1) of the Act arises from the day the worker is assessed (in this case) by a doctor with the entitlement to a weekly payment of compensation starting when the doctor assessed the worker with an injury resulting in total or partial incapacity for work or on the day the worker stops work because of the injury (see s 141(2)(a) of the Act).
[103]The Regulator argued that an entitlement for weekly payments had not been enlivened as the Workers' Compensation Medical Certificate did not record on 16 July 2013 that Toward's injury had rendered him as being total or partially incapacitated for work. This argument in terms of s 141(2)(a) of the Act has some standing particularly as it relates to Toward being entitled to weekly payments however in this case it is more likely than not that it is s 141(2)(b) of the Act that has applicability in Toward's circumstances:
"…if a doctor, nurse practitioner or dentist assesses the injury as resulting in
total or partial incapacity for work on a day later than the day the worker stops work because of the injury - the day the doctor, nurse practitioner or dentist assesses the injury."
[104]Dr Simonds' certificate was issued following the consultation between Toward and Dr Pozzi at which time the Orthopaedic Surgeon had identified the need for the hip replacement. It would be wrong to suggest that in the period immediately following a hip replacement that a worker would not be either totally or partially incapacitated for work and on my reading of the situation s 141(2) would be enlivened at that time.
[105]The application for compensation identified the injury sustained on 21 August 2004 as a "hip, osteoarthritis hip" injury with the accompanying Workers' Compensation Medical Certificate listing the injury as "severe arthritis L Hip".
[106]The medical evidence before the Commission was that the severe nature of the condition was firstly assessed by Dr Simonds and Dr Pozzi in July 2013. Prior to that assessment there was an "awareness" of issues with Toward's left hip but for the purposes of workers' compensation the first assessments were on 11 and 16 July 2013.
[107] In Downey Hall P defined "assessment" in the following terms:
"…it seems to me that the expression 'assessed by a doctor' (or for that matter
'assessed by a dentist') must be taken to mean 'assessed by a doctor as resulting in total or partial incapacity for work'. I.E., where the commencement of the limitation period is said to be triggered by the activity of a doctor, it is necessary to show that a doctor has assessed the alleged injury as involving partial or total incapacity."
[108]In Appo v Q-COMP[10] Hall P also addressed the issue of medical assessment whereby he commented:
[10] Appo v Q-COMP [2003] QIC 169"I have considered the Industrial Magistrate’s decision at some length. The
critical passage appears to be:
'His partial incapacity for work was medically assessed on that date [viz. 22 August 2001] to the extent that he received prescription medication.'.
It seems to me that what His Worship was saying was that the injury which gave rise to the partial incapacity was assessed as requiring treatment on that day. With respect to His Worship, I am not satisfied that His Worship ever confronted the critical question, viz. nomination of the date at which the doctor assessed the extent of the incapacity for work."
[109]Whilst the Workers' Compensation Medical Certificate [Exhibit 1] in this case did not nominate that Toward would be totally or partially incapacitated beyond 16 July 2013 as mentioned previously, had the claim been approved and the medical intervention by way of the hip replacement performed Toward would most certainly have been the subject of total or partial incapacity for work.
Finding
[110]Having considered the evidence and material before the proceedings, I make the following finding:
the application for workers' compensation lodged by Toward on 17 July 2013 was compliant with ss 131 and 141 of the Act with the application therefore being both a valid and enforceable application.
[111]The Regulator is ordered to pay the Appellant's costs incidental to and associated with the hearing of the jurisdictional matter heard in Brisbane on 23 and 24 July 2014.
[112] I order accordingly.
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