Whitehead v Workers' Compensation Regulator - [2017] QIRC 71

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Whitehead v Workers' Compensation Regulator [2017] QIRC 071
PARTIES:	Whitehead, Tracy Jane (appellant) v Workers' Compensation Regulator (respondent)
CASE NO:	WC/2016/11
PROCEEDING:	Appeal
DELIVERED ON:	1 August 2017
HEARING DATES:	27 and 28 February 2017
MEMBER:	Deputy President D L O'Connor
ORDERS:	1. Appeal dismissed. 2. The decision of the respondent dated 10 December 2015 is affirmed. 3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed, or failing agreement, to be the subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Where application lodged 256 days late – Whether reasonable cause – Appeal dismissed
CASES:	Workers' Compensation and Rehabilitation Act 2003 (Qld), s 131, s 141, s 548 Work Health and Safety Act 2011 (Qld), s 28 Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207 Black v City of South Melbourne [1963] VR 34 Fairhurst v the Workers' Compensation Regulator [2015] QIRC 197 Macdonald v Q-Comp (2008) 188 QGIG 180 Simon Blackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 008 Quinlivan v Portland Harbour Trust [1963] VR 25 Wiley v Q-COMP (Unreported, Townsville Magistrates Court, Acting Industrial Magistrate Bice, 30 May 2003)
APPEARANCES:	Mr A W Collins of Counsel, for the applicant, instructed by Rapid legal Solutions Dr M Spry of Counsel, instructed directly by the respondent

Reasons for Decision

The appellant was employed at the Townsville Hospital from approximately February 1999 until 26 May 2015. The events leading to appellant's alleged injury and decompensation can be summarised as a series of bullying incidents which occurred over a number of months. It is submitted by the appellant that her first experience of negative behaviour from other employees occurred sometime in October 2013 and that there were attempts made by the hospital's management to mediate the issues giving rise to the alleged bullying. It is also submitted by the appellant that, for the purposes of the Workers' Compensation and Rehabilitation Act 2003, her injury arose at the time at which it was first assessed by a doctor.[1] The date of the assessment was 3 March 2014. The six month period in which to lodge her claim, as specified by the Act, expired on 3 September 2014. The appellant lodged her claim on 26 May 2015, some 265 days late.
[1] Workers' Compensation and Rehabilitation Act 2003, s141.
The issue for the Commission to determine is whether the appellant's claim for workers' compensation was validly made. The sole question to be determined is:
Did the appellant have a reasonable cause for failing to lodge her application within the six month statutory timeframe?
For the reasons which follow, I have concluded that that the appellant did not have a reasonable cause for failing to lodge her claim for compensation within the timeframe.
Facts
Whilst it is not essential to outline in detail the factual background, I will give a brief overview in order to give some context to the decision.…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] QIRC 71
Decision Date: 1 August 2017

CaseChat Overview and Summary

The appeal before the Court was brought by the appellant, a former employee of the respondent, the Workers' Compensation Regulator, against a decision of the respondent to dismiss her claim for workers' compensation. The appellant's claim was lodged 256 days after the statutory six-month period for such claims had elapsed. The central legal issue was whether the appellant had reasonable cause for the delay in lodging her claim. The court had to determine whether the appellant's actions and circumstances leading up to the filing of her claim constituted a reasonable cause under the statutory provisions.

The court examined the appellant's activities and interactions over the period leading up to her filing of the claim. The appellant had been receiving medical treatment for vertigo and an adjustment disorder with depressed mood, and had seen a psychologist for counselling. She had also lodged a complaint against her supervisor alleging bullying. Despite these engagements and the appellant's assertion of unawareness of her workers' compensation rights, the court found that she had been actively involved in managing her health issues and had not taken any steps to pursue a workers' compensation claim until well beyond the statutory period. The court concluded that the appellant's conduct did not demonstrate reasonable cause for the delay in filing her claim.

In light of the findings, the court dismissed the appeal and affirmed the decision of the respondent. The court ordered that the appellant pay the respondent's costs of and incidental to this appeal, to be agreed upon by the parties, or, if they could not agree, to be determined by a further application to the Commission.

Orders

Orders of the court

1. Appeal dismissed.

2. The decision of the respondent dated 10 December 2015 is affirmed.

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

Background

Background to the litigation

For the reasons which follow, I have concluded that that the appellant did not have a reasonable cause for failing to lodge her claim for compensation within the timeframe. Facts Whilst it is not essential to outline in detail the factual background, I will give a brief overview in order to give some context to the decision. The appellant was longstanding employee of the respondent as an administration officer in the Townsville Hospital. For some period of time the appellant had been suffering from an unidentified illness which caused dizziness and fainting. In the first part of 2013, the appellant took a two-month period of sick leave. She returned to work at the Hospital's Emergency Department in March 2013. On returning it became apparent that the appellant's relationship with her supervisor had deteriorated. Shortly after resuming her role the appellant had a performance appraisal and development meeting with her supervisor. The appellant's supervisor told her that she would no longer be filling in for the supervisor when the supervisor was on leave. The appellant had previously filled in for her supervisor. In May 2013 the appellant's dizziness and fainting was diagnosed as vertigo. The appellant and the supervisor had an altercation the day before the supervisor's leave in June 2013. There were further issues on the supervisor's return. Problems continued until October 2013 at which point the appellant was referred to another person to whom the appellant detailed a number of ongoing issues and incidents. In November 2013 the appellant experienced further medical problems and these were treated in December. Meanwhile, there had been further incidents between the appellant and her supervisor. It was during this period of time that the appellant commenced seeing a psychologist for counselling. She also made a complaint against her supervisor alleging bullying. In February 2014 there was an unsuccessful attempt at a mediation between the appellant and her supervisor. On 3 March 2014 the appellant attended on Dr Carmelina Mamawal, a General Practitioner, and was diagnosed with an adjustment disorder with depressed mood. It is agreed between the parties that, for the purposes of s131 of the Act, 3 March 2014 is the date of the assessment of the injury and the date from which time ran.[2] [2] Simon Blackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 008, [11]-[30]. On 10 March 2014 the hospital confirmed that the appellant's complaint would be investigated and pending the completion of the investigation, she would be temporarily transferred within the hospital. That "move" would last until May 2015 at which point the appellant was returned to her position in the Emergency Department. The appellant continued to see the psychologist for the duration of her period away from the Emergency Department. The appellant returned to the Emergency Department on 12 May 2015 and undertook a week of training. The appellant took a week of scheduled carers leave and returned to work on 26 May 2015, that day was also her last day of work. The appellant filed her application for compensation on 26 May 2015.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

While the remarks in Black and Quinlivan were obiter (indeed, both cases go to whether an applicant was bound by the conduct of an agent, conduct which ultimately resulted in the delay) the approach has been adopted by the Commission as a useful guide to the interpretation of reasonable cause.[16][16] For example: Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207, [48]-[50]. Conclusion The appellant's submissions insofar as they relate to the Work Health and Safety Act 2011 is misguided. The appellant's compliance with the Work Health and Safety Act 2011 does not go to whether there was reasonable cause for her failure to comply with s131 as there is nothing in the Work Health and Safety Act 2011 which hinders, prevents, or prohibits her from complying with s131. Complying with legislation which does not prohibit you from doing something cannot then be said to be a reasonable cause for not doing that thing. Instead, that submission, along with the others made by the appellant, illustrates what the appellant was doing over the period leading up to her filing her claim. It is a history which does not disclose a reasonable cause. The appellant contends that she was not aware of her workers' compensation rights. In cross-examination, the appellant said: I find it hard to accept that the evidence of the appellant that she was not aware of the need to apply for workers' compensation let alone the requirement to lodge an application for compensation within a six month period. The appellant accepts that her Union was involved in the complaint matter, she was referred to Ms Carey, a Clinical Psychologist at North Queensland Psychology Services initially under the employee assistance program and thereafter, as a private patient. As at 28 April 2014 she was on a Mental Health Care Plan prepared by Dr Reuben Scott, her General Practitioner to treat generalised anxiety due to her work environment. Throughout her treatment by Ms Carey, updates were sent to Dr Scott identifying workplace health issues.[18] Notwithstanding all of these things, no claim was made until 26 May 2015, some 14 months after her entitlement to compensation arose.[18] Exhibit 12. Counsel for the respondent referred me to the decision of Neate C Augustynski v Simon Blackwood (Workers’ Compensation Regulator). In that decision Neate C wrote:"The Respondent and [the employer] submit that, if the Appellant was sufficiently unwell to be issued with nine such medical certificates over a period of almost five months, and to have received treatment from a psychologist and a psychiatrist during that period, then there was clearly a sound basis for lodging a compensation application rather than a reasonable cause for not doing so. I agree.In any case, [the employer] points to the decision of an Industrial Magistrate in Wiley v QCOMP,[19] where an employee claimed that he did not make his application within the statutory time frame as he believed that, after some time off from work duties and with a period of rest, he would be able to recover from episodes of back and neck pain that he was suffering. The Industrial Magistrate held that the Appellant's belief would not amount to reasonable cause for the late application."[20][19] Wiley v Q-COMP (Unreported, Townsville Magistrates Court, Acting Industrial Magistrate Bice, 30 May2003). [20] Augustynski v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 207, [54]-[55].

Ratio Decidendi

Legal Principle Established

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