Turay v Workers' Compensation Regulator - [2023] QIRC 1

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	_Turay v Workers' Compensation Regulator [2023] QIRC ₀₀₁
PARTIES:	Turay, Susan Ballu (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO.:	WC/2021/72
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	3 January 2023
HEARING DATES:	7, 8 and 9 February 2022
MEMBER: HEARD AT:	Power IC Brisbane
ORDERS:	1. The appeal is dismissed. 2. The decision of the Workers' Compensation Regulator is confirmed. 3. Failing agreement on costs, to be the subject of a further application to the Commission. 4. Liberty to apply.
CATCHWORDS:	WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – APPLICATION FILED OUT OF TIME – appeal against review decision – where appellant made an application for compensation for psychological injuries – where application rejected on the basis the appellant did not file the application within the time required by s 131 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – whether there was a reasonable cause for the appellant's failure to lodge the application for compensation – reasonable cause not established
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 11, 131 and 141 Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld)
CASES:	Blackwood v Toward (2015) 248 IR 53 Fox v Percy (2003) 214 CLR 118 Green v Workers' Compensation Regulator [2019] ICQ 3 Quinlivan v Portland Harbour Trust (1963) VR 25 R v Butler [2009] QCA 111 Rowe v Q-Comp (2009) 190 QGIG 93
APPEARANCES:	Ms S. Turay, as self-represented Appellant. Mr B.I. McMillan of Counsel, directly instructed by the Respondent.

Reasons for Decision

Ms Susan Ballu Turay ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') not to waive the time limitation for applying for compensation pursuant to s 131 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').
The Respondent rejected the Appellant's application for review on the basis that the Respondent did not accept that the Appellant had established a reasonable cause pursuant to the then s 131(5) of the Act.[1]
[1] As a result of legislative amendments under the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld), s 131(5) was renumbered as s 131(6).
The issue for determination is whether there was a reasonable cause for the Appellant's failure to lodge her application for compensation within the time limit prescribed by s 131(1) of the Act.
Background
The Appellant commenced employment with Yarrabee Blue Care as a Registered Nurse in 2017.
The Appellant was stood down from her employment on 16 January 2018. Following a workplace investigation, the Appellant's employment was terminated on 19 January 2018.
It is not in dispute that the Appellant was a worker for the purposes of s 11 of the Act.
On 14 November 2018, the Appellant consulted with Dr Johanna Skinner, General Practitioner, who provisionally diagnosed the Appellant with an adjustment disorder.
On 16 September 2020, the Appellant lodged an application for compensation of a psychological nature described as 'Psychological and Emotional harm, Mental Torture'.
It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Turay v Workers' Compensation Regulator

Details

AGLC: Turay v Workers' Compensation Regulator [2023] QIRC 1
Case: [2023] QIRC 1
Decision Date: 3 January 2023

CaseChat Overview and Summary

In Turay v Workers' Compensation Regulator, the dispute centred on the Appellant's entitlement to workers' compensation for psychological injuries arising from workplace bullying. The Appellant, a former Registered Nurse, lodged an application for compensation more than a year after her entitlement arose. The Workers' Compensation Regulator rejected the application on the basis that it was filed beyond the six-month period stipulated by section 131 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). The primary issue before the court was whether the Appellant's failure to file the application within the required timeframe was due to a reasonable cause, as permitted by section 131(6)(c) of the Act.

The court examined the Appellant's submissions, which outlined a sequence of events from her employment in 2017 to her termination in 2018, and detailed her ongoing symptoms of mental illness and stress. Despite acknowledging the Appellant's suffering, the court noted that the medical and factual evidence did not support a conclusion that she lacked the capacity to lodge an application within the statutory period. The Appellant argued that there was a reasonable cause for her delay, but the court found that she had not discharged the onus of proving this. The court concluded that there was no proper basis to exercise discretion under section 131(6) to extend the time for filing the application.

The court dismissed the appeal and confirmed the decision of the Workers' Compensation Regulator. The court also noted that costs were to be subject to a further application unless the parties agreed otherwise, and granted liberty to apply for such costs. This ruling underscores the importance of timely filing of compensation applications under the Act and highlights the stringent requirements for extending the statutory deadlines.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Workers' Compensation Regulator is

confirmed.

3. Failing agreement on costs, to be the subject of a further

application to the Commission.

4. Liberty to apply.

Background

Background to the litigation

The issue for determination is whether there was a reasonable cause for the Appellant's failure to lodge her application for compensation within the time limit prescribed by s 131(1) of the Act.Background The Appellant commenced employment with Yarrabee Blue Care as a Registered Nurse in 2017. The Appellant was stood down from her employment on 16 January 2018. Following a workplace investigation, the Appellant's employment was terminated on 19 January 2018. It is not in dispute that the Appellant was a worker for the purposes of s 11 of the Act. On 14 November 2018, the Appellant consulted with Dr Johanna Skinner, General Practitioner, who provisionally diagnosed the Appellant with an adjustment disorder. On 16 September 2020, the Appellant lodged an application for compensation of a psychological nature described as 'Psychological and Emotional harm, Mental Torture'. It is accepted by the Appellant that:(a)the Appellant's entitlement to compensation arose on 14 November 2018 when she was diagnosed by Dr Skinner with an adjustment disorder arising from workplace bullying;(b)the Appellant lodged the application for compensation on 16 September 2020; and(c)the Appellant did not lodge the application for compensation within six months after her entitlement to compensation arose on 14 November 2018, namely, before 14 May 2019 ('the limitation period').[2][2] T 1-2, l 25 – T 1-4, l 26. Section 131 of the Act provides the time for applying for an application for compensation:131 Time for applying(1)An application for compensation for an injury is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation for the injury 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. The Appellant does not contend that the failure to lodge the application was due to mistake or absence from the State. Accordingly, the only consideration is whether the Appellant had a reasonable cause pursuant to s 131(6)(c) of the Act. The appeal is by way of a hearing de novo and the onus is on the Appellant to satisfy the Commission, on the balance of probabilities, that the Appellant's failure to lodge the application for compensation was due to a reasonable cause. The Appellant's statement of facts and contentions can be summarised as follows, that: The Appellant's submissions outlined a chronology of events commencing with her employment in 2017 and detailed matters relating primarily to the substantive workers' compensation application.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I accept that the Appellant has suffered from symptoms of mental illness and stress throughout the limitation period. This is not unusual for workers seeking compensation for psychological injuries. However, the medical and factual evidence do not support a conclusion that the Appellant did not have capacity to lodge an application for workers' compensation during the limitation period. There was no reasonable cause pursuant to s 131(6) of the Act for the Appellant's failure to lodge the application within time.Conclusion For the reasons set out above, and having considered all the evidence before the Commission, the Appellant has not discharged the onus of establishing that the failure to lodge her application for compensation within the limitation period was due to a reasonable cause. Accordingly, there is no proper basis upon which I can exercise my discretion to extend time pursuant to s 131(6) of the Act.Orders I make the following orders:1. The appeal is dismissed.2. The decision of the Workers' Compensation Regulator is confirmed.3. Failing agreement on costs, to be the subject of a further application to the Commission. 4. Liberty to apply.

Ratio Decidendi

Legal Principle Established

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