Weder v Workers' Compensation Regulator - [2018] QIRC 22

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Weder v Workers' Compensation Regulator [2018] QIRC 022
PARTIES:	Weder, Anthony (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2017/77
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	6 March 2018
HEARING DATES:	15 February 2018
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Thompson
ORDERS:	1. The appeal is dismissed. 2. The decision of the Regulator dated 31 March 2017 is confirmed. 3. The appellant is to pay the Regulator's costs of and incidental to the appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Workers' Compensation Regulator ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence ‑ Time for applying - Legislative requirements - Doctor's assessment - Medical certificate - Entitlement to compensation - Ability to waive s 141(1) of the Act - Appeal dismissed - Decision of Regulator confirmed - Appellant to pay Regulator's costs of and incidental to the appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
CASES:	Workers' Compensation and Rehabilitation Act 2003 ss 131, 132, 141, 208, 209, 210 Workers' Compensation and Rehabilitation Regulation 2014 s 104 SimonBlackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 8 Quinlivan v Portland Harbour Trust [1963] VR 25 Van Dongen v Northern Territory of Australia [205] NTCA 6 WorkCover Queensland v Downey (2001) 168 QGIG 381 Appo v Q-COMP (2003) 174 QGIG 1120 DeAlwis v Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 008 Black v City of South Melbourne [1963] VR 34 Augustynski v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 207 Appo v Review Unit Q-COMP (unreported, Industrial Magistrates Court of Queensland, Barrett IM, 15 May 2003 Wiley v Q-COMP (unreported, Industrial Magistrates Court of Queensland, 30 May 2003) Cook v Q-COMP (2008) QGIG 220 Susan Marshall AND Q-COMP (WC/2011/386) - Decision Telstra Corporation v Roycroft (1997) 77 FCR 358 Whitehead v Workers' Compensation Regulator [2012] QIRC 71 R v Workers' Compensation Board of Queensland ex parte Heffernan (1979) Qd R 563 Australia and New Zealand Banking Group Limited v Q-COMP (2004) 175 QGIG 1125 Churchill v Q-COMP (2009) 190 QGIG 247 Nuttall v Workers’ Compensation Regulator [2017] QIRC 069
APPEARANCES:	Mr R. Ivessa, Counsel instructed by Mr J. Wright of Colwell Wright Solicitors for the Appellant. Mr S. Gray, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

A notice of appeal was lodged with the Industrial Registrar on 4 May 2017 by Anthony Weder (Weder) pursuant to ss 548A and 549 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (Regulator) dated 31 March 2017.
The decision of the Regulator was to confirm the decision of WorkCover Queensland (WorkCover) not to waive the time for applying in accordance with s 131 of the Act.

Relevant Legislation

The legislation pertinent…

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 Weder v Workers' Compensation Regulator

Details

AGLC: Weder v Workers' Compensation Regulator [2018] QIRC 22
Case: [2018] QIRC 22
Decision Date: 6 March 2018

CaseChat Overview and Summary

In the case of Weder v Workers' Compensation Regulator, the appellant, Weder, sought to appeal the decision of the Workers' Compensation Regulator, which upheld WorkCover's decision not to waive the time limit for him to lodge an application for compensation under section 131(5) of the Workers' Compensation and Rehabilitation Act. The appellant had lodged his application for compensation on 4 August 2015, well beyond the six-month period stipulated by section 131(1) of the Act.

The primary legal issue the court had to address was whether the appellant could prove, on the balance of probabilities, that his failure to lodge the application within the specified period was due to mistake, his absence from the state, or a reasonable cause. Weder argued that his delay was attributable to a reasonable cause, namely his ongoing employment and the belief that his employer would not take steps to terminate his employment. The court had to determine whether the appellant's belief that his employer would not terminate his employment constituted a reasonable cause under section 131(5) of the Act.

The court found that the appellant had not met the onus of proof required to establish that his failure to lodge the application within the specified period was due to a reasonable cause. The court held that the appellant's belief that his employer would not terminate his employment did not amount to a reasonable cause. The court reasoned that the appellant's continued employment and the belief that his employer would not take steps to terminate him did not prevent him from lodging the application within the specified period. The court also noted that the appellant had the opportunity to lodge the application at any time during his employment and that his delay in lodging the application was due to his own inaction.

The court dismissed the appeal and confirmed the decision of the Regulator. The court ordered that the appellant pay the Regulator's costs of and incidental to the appeal to be agreed or failing agreement to be the subject of a further application to the Commission.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Regulator dated 31 March 2017 is confirmed.

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

Background

Background to the litigation

The appeal was against the original decision of WorkCover not to waive the time limit for the appellant to lodge an application for compensation under s 131(5) of the Act in respect of an application for compensation lodged on 4 August 2015.Facts Relevant to Appeal The appellant worked for QIC from 2006 until March 2015. After a series of stressful interactions with the QIC Chief Financial Officer (CFO) to whom he directly reported he sought treatment for stress symptoms in 2013 through a referral to Dr Matthews. In a report (dated 1 August 2016) Dr Matthews stated:· initial consultation - 9 September 2013;· Weder described symptoms of anxiety and depression;· Weder was given a medical certificate for two weeks off work;· Weder did not use the certificate and continued to perform work; and· he suggested Weder consider a WorkCover claim and also a change of workplace. Weder was not assessed as incapacitated for work on 9 September 2013 and continued to perform his role for 18 months until his last day of work on 13 March 2015. He continued to be treated by Dr Matthews exhibiting intermittent deterioration and improvements in his mental state although an overall slow deterioration. On 16 March 2015 following a consultation with Dr Matthews he was assessed as unable to work due to an "Adjustment Disorder with Mixed Anxious and Depressed Mood" with a workers' compensation medical certificate issued to that effect. The injury had developed "over a period of time" with the appellant first seeing Dr Matthews on 9 September 2013.The Law Relevant sections of the Act were identified as:· Section 131(1) and (5) 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.…(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."· Section 141(1) and (2) 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."

Evidence

Evidence Before The Court

The standard of proof upon which appeals of this nature must be determined is that of "on the balance of probabilities".Evidence In the course of the proceedings, evidence was provided by two witnesses.Witness List The witnesses for the appellant were:· Weder; and· Dr Bradley Matthews (Dr Matthews). The Regulator did not call any witness evidence. The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety. AppellantWeder Weder commenced employment with the Queensland Investment Corporation (QIC) in 2006 having been "head hunted" for their global real estate division. The role was stressful and included the following tasks:· procurement of debt;· managing debt;· managing cases; and· managing financial risk. On 9 September 2013 he sought treatment from Dr Matthews for a stress-related condition. Dr Matthews had been recommended by his [then] partner, as a practitioner that had WorkCover experience. A medical certificate was issued by Dr Matthews for the information of his employer that identified him as unfit for duty from 9 September 2013 until 24 September 2013. There had prior to the issue of the medical certificate been no discussions about his inability to work however Dr Matthews suggested he consider the following propositions:· WorkCover claim;· resignation; and· changing jobs (working somewhere else).Dr Matthews had not assessed on 9 September 2013 an injury resulting in total or partial incapacity for work or mentioned time limitations for a WorkCover claim. In the period from the initial consultation with Dr Matthews and when he ceased employment with QIC on 13 March 2015 he was able to perform all his duties and managed a "lot of stress" with Dr Matthew's assistance. In terms of his remuneration package it contained a bonus element which at a minimum was 60 per cent if expectations were met in the performance of his duties. Towards the end of 2014 whilst he had partial resolution of some work issues the undertakings given had not been delivered on which had increased his stressors, making it difficult to cope. He was being excluded from team meetings also at this time. Weder attended upon Dr Matthews on 16 March 2015 where he outlined some of the things that were going on at QIC, how he was feeling and there being a lot of stress that he was not able to cope with. Dr Matthews suggested that he should not return to work and raised the issue of WorkCover. That was the first time he had been assessed as being either totally or partially incapable of work. He tendered his resignation on 20 March 2015 but had not worked in the intervening period between seeing Dr Matthews and the giving of notice Under cross-examination Weder agreed that at the consultation with Dr Matthews on 16 March 2015 he had a belief that QIC were going to take steps to terminate his employment and at a meeting on 18 March 2015 there was mutual agreement reached that he would tender his resignation [Transcript p. 1-9] Weder had requested his general practitioner to provide a referral to Dr Matthews, specifically due to advice from his [then] partner who said he was a good doctor and not because he knew about WorkCover claims [Transcript p. 1-10]. However he later accepted the doctor's WorkCover experience was one of the reasons for wanting the referral [Transcript p. 1-11]. One of the considerations suggested by Dr Matthews at the initial consultation was that he could make a WorkCover claim [Transcript p. 1-11]. He denied that on 9 September 2013 he was considering a WorkCover claim because it was his intention to work [Transcript p. 1-12]. Dr Matthews had prescribed medication which was subsequently taken by Weder but he refused to concede it was treatment for a psychiatric condition but was for managing his health at work [Transcript p. 1-13]. Dr Matthews had given him a medical certificate which stated as at 9 September 2013 he was unfit for duty and recommended some time off [Transcript p. 1-14].Dr Matthews

Decision

Reasons for decision

On the appellant's submission in terms of the Blackwood v Toward decision providing a different outcome that effected case law, this was said not to matter in these circumstances because Weder had simply taken no action to make any application for compensation.Conclusion The matter for determination was in respect of the decision by the insurer and subsequently confirmed by the Regulator not to waive the time limit pursuant to s 131(5) of the Act for an application made for compensation by Weder on 4 August 2015.Legislation - relevant to time limitations The legislation applicable to the lodgement of an application for compensation is that of s 131(1) of the Act:"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." In circumstances where a claim for compensation has been lodged outside the six month period identified in s 131(1) of the Act there is an avenue available for the requirements of s 131(1) of the Act to be waived subject to considerations of s 131(5) of the Act:"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." The evidence of the appellant is that on 9 September 2013 as a consequence of a referral by a general practitioner he attended upon Dr Matthews a Psychiatrist seeking treatment for a stress related condition. In terms of the referral Weder had nominated Dr Matthews as his medical specialist of choice based upon a recommendation of his [then] partner who amongst other things had mentioned Dr Matthews had WorkCover experience. At the 9 September 2013 consultation it was evident that Weder had provided to Dr Matthews a full history regarding factors relating to his then psychiatric health which indicated there were no significant issues in his life outside of work-related factors. Weder had described in some detail the work-related conduct of the CFO at QIC as the source of his concerns with work-related issues and the effect that had upon his health. Dr Matthews was at this time concerned that Weder had either developed an adjustment disorder with depressed mood or a major depressive episode secondary to his work pressures. Dr Matthews on that day had suggested Weder:· consider the lodgement of a WorkCover claim; and· a change of workplace.Dr Matthews issued a medical certificate (dated 9 September 2013) which stated having been examined Weder was "unfit for duty" from 9 September 2013 to 24 September 2013 (inclusive) due to a medical condition. Further he commenced treatment by prescribing a course of anti-depressant medication for the purposes of improving sleep and addressing his mood symptoms. Under cross-examination Dr Matthews accepted the proposition that:"…you express there that you were concerned that Mr Weder had either developed an adjustment disorder with depressed mood or indeed a major depressive episode secondary to his work pressures." [Transcript p. 1-23]

Ratio Decidendi

Legal Principle Established

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