De Alwis v Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 8

INDUSTRIAL COURT OF QUEENSLAND CITATION: De Alwis v Simon Blackwood (Workers’ Compensation Regulator) [2016] ICQ 008 PARTIES: DUWADISAWAGE SRICASSIMAL DE ALWIS (appellant) v SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR) (respondent) FILE NO/S: C/2015/45 PROCEEDING: Appeal DELIVERED ON: 4 April 2016 HEARING DATE: 19 November 2015 MEMBER: Martin J, President ORDER/S: The appeal is dismissed. CATCHWORDS: WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – FAILURE TO MAKE CLAIM WITHIN TIME – GENERALLY – where the appellant appeals a decision of the Commission that his application was not valid and enforceable because it had been lodged more than six months after the entitlement to compensation arose – where the appellant’s claim for compensation was first lodged on 17 April 2014 – where the Commission found that the appellant suffered an injury of a psychological/psychiatric type first diagnosed by a doctor on 28 January 2010 and this injury was a result of work- related issues – whether the appellant has identified error on the part of the Commission in reaching its finding Workers’ Compensation and Rehabilitation Act 2003, s 131, s 141 CASES: Blackwood v Toward [2015] ICQ 008; (2015) 248 IR 53 APPEARANCES: The appellant in person S McLeod instructed by the Workers’ Compensation Regulator for the respondent [1] This is an appeal from a decision of the Commission that the appellant’s application for compensation was not valid and enforceable because it had been lodged by the appellant more than six months after the entitlement to compensation arose. -- 1 of 5 -- 2 [2] Section 131 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) provides for a six-month time limit within which to lodge an application for compensation: “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.” [3] The time commences to run when the “entitlement to compensation” arises. Section 141 provides that the entitlement to compensation arises on the day the worker is assessed by a doctor: “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 -- 2 of 5 -- 3 (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).” [4] In Blackwood v Toward1, it was held that in order for a doctor to “assess” an injury as an “injury” within the meaning of the Act there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment. [5] In this case, the Commissioner referred to the statement of stressors which identified the work-related stressors said by the appellant to have caused his psychological/psychiatric condition. That list identified events occurring from December 2008 until April 2014. In the hearing before the Commission the appellant argued that of the 13 stressors identified by him, the only relevant one was stressor 10 which related to the meeting held on 20 February 2014. He says that it was the catalyst for his decompensation on 16 April 2014. The Commissioner said that in the absence of any other stressor the appellant’s claim for compensation would have been valid and enforceable as it would have been lodged within six months after assessment by Dr Craig Morris. [6] The Commissioner referred to the evidence which demonstrated that the appellant had experienced a number of work related issues giving rise to conditions which had been diagnosed as early as 2010. Both Dr Rodney Morris and Dr Craig Morris agreed that the appellant had received treatment for a psychological/psychiatric condition from 2010 for issues that were work-related. Dr Craig Morris also gave evidence that the work-related issues were the predominant factor in the injury suffered by the appellant. [7] The Commissioner made the following finding: 1 [2015] ICQ 008; (2015) 248 IR 53 -- 3 of 5 -- 4 “[62] The medical evidence before the proceeding is sufficient to establish that De Alwis suffered an injury of a psychological/psychiatric type first diagnosed by a doctor on 28 January 2010 and was as a result of work-related issues. There continued to be similar medical diagnoses and for the same reasons in the years beyond 2010 until April 2014 during which time De Alwis had remained in the employ of the Department of Housing and Public Works.” [8] The notice of appeal does not set out the grounds of appeal as required by the Industrial Relations Act 1999 and the Industrial Relations (Tribunals) Rules 2011. Instead, the appellant has attached a document which is quite discursive and combines, in an unsatisfactory way, grounds of appeal and submissions. Apart from being contrary to the rules, this form of document makes it very difficult for a respondent to understand what is said by the appellant to be the error or errors in the decision under appeal. [9] In addition to the document entitled “Grounds of Appeal” the appellant filed another document entitled “appellant’s submission”. Both of these documents contain references to some of the evidence and some arguments concerning the decision. [10] The argument for the appellant, put in very broad terms, is that a distinction should have been drawn between the injury which he said occurred on 20 February 2014 and the events which had preceded it from about 2009 onwards. [11] In some parts of his submissions, the appellant refers to 2 periods of time and appears to argue that he had recovered from his earlier injury before the events of February 2014. The evidence before the Commission was that the appellant had consulted Dr Craig Morris on 28 January 2010. The Commissioner found that the appellant accepted that at the consultation on that date that Dr Craig Morris had diagnosed an adjustment disorder with depressed mood; the first stressor occurred in 2008; and a mental health plan had been formulated but not taken up by him. [12] The Commissioner recorded in his reasons that the appellant had consulted Dr Rodney Morris on 20 November 2010 about work-related stress. He had a consultation with Dr Craig Morris on 21 December 2010 in which a diagnosis of an adjustment disorder relating to work stressors was recorded and the appellant acknowledged that there were other occasions before 2014 in which he had sought medical treatment for stress-related conditions that were work-related. [13] The case conducted by the appellant was inconsistent. On the one hand, he said that all of the stressors contributed to his psychological/psychiatric injury while, on the other, he pressed the view that the only relevant stressor was the one concerning the meeting on 20 February 2014. [14] The question for the Commissioner was whether or not the appellant had been assessed as having an injury within the meaning of the Act at a time more than six months before he lodged his application for compensation. In order to answer that question, the Commissioner had regard to the medical records of the appellant, the evidence from the doctors, and the express purposes for which he was treated from 2008 until April 2014. The conclusion that the Commissioner reached was that the appellant was first diagnosed -- 4 of 5 -- 5 with an adjustment disorder attributable to work-related issues on 28 January 2010. There was evidence to support that conclusion. [15] The appellant has not identified any error in the method used by the Commissioner in assessing the evidence or in his application of the relevant law. Rather, the appellant says that there was another conclusion able to be drawn. Be that as it may, it is for the appellant to show that the conclusion of the Commissioner was the subject of an error of some kind. He has not done that. The appeal is dismissed. -- 5 of 5 --