Fairhurst v The Workers' Compensation Regulator [2015] QIRC 197

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Fairhurst v the Workers' Compensation Regulator [2015] QIRC 197 PARTIES: Fairhurst, Derek (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2015/227 PROCEEDING: Appeal against decision of the Regulator DELIVERED ON: 19 November 2015 HEARING DATES: 16 October 2015 MEMBER: Deputy President O'Connor ORDERS: 1. The appeal is dismissed. 2. The decision of the respondent dated 8 July 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 this Commission. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF THE REGULATOR – Whether a claim for Workers' Compensation was lodged in time – Where the time that the entitlement to compensation arose was not in dispute - Where the claim was lodged outside of 6 months after the entitlement to compensation arose – Whether the Appellant demonstrated that there was a reasonable cause for the delay – Where there was no reasonable cause - Appeal dismissed. CASES: Workers' Compensation and Rehabilitation Act 2003, ss 131, 141, 151 Black v the City of South Melbourne (1963) VR 34 -- 1 of 5 -- 2 Blackwood v Toward [2015] ICQ 008 Churchill v QCOMP (2009) 190 QGIG 247 Quinlivan v Portland Harbour Trust (1963) VR 25 APPEARANCES: Mr A. Stobie, Counsel instructed by Turner Freeman Lawyers Mr J.W. Merrell, Counsel directly instructed by the Workers' Compensation Regulator Decision from the bench [1] This is an appeal against a decision of the regulator dated 8 July 2015, that the appellant failed to make a valid and enforceable application pursuant to s 131 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"). Section 131 of the Act provides that: 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] Pursuant to s 131(5)(c) of the Act: An insurer may waive subsection (1) for a particular application if the insurer is satisfied that a claimant’s failure to lodge the application was due to a reasonable cause. [3] Section 141 of the Act, being the time from which compensation is payable, relevantly provides that: The entitlement to compensation for an injury arises on the day the worker is assessed by a doctor; or 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. [4] In the matter of Blackwood v Toward1, a relatively recent decision of the Industrial Court of Queensland, Martin J, the President of the Court, in regard to the proper construction to be given to section 141(1) of the Act said as follows: Section 141 is concerned for the time from which compensation is payable for an injury as defined. The compensation may be in one or more of the types available under Chapter 3 or 4 of the Act. To confine the words “assessed by … a doctor” to an assessment relating only to a total or partial incapacity for work as envisaged in section 141(2) is to ignore the other, possible, compensation sequelae of an injury. 1 Blackwood v Toward [2015] ICQ 008. -- 2 of 5 -- 3 [5] His Honour went on to conclude: In section 141(2) the assessment concerns the severity of the injury and not whether a worker has suffered an injury. Elsewhere in the Act, where the word “assess” or “assessment” is used about an injury it concerns the extent or effect of the injury. Section 141(2) concerns the worker and whether, in the opinion of a doctor or other nominated medical professional, the worker has suffered a “personal injury arising out of, or in the course, employment … is a significant contributing factor to the injury” as described in section 9. That is what is meant by “the worker is assessed by … a doctor.” To confine it as the respondent suggests is to equate assessing a worker with assessing an injury. [6] It is not in dispute between the parties that the entitlement for compensation arose following the assessment of Dr Allen on 28 April 2014. On that basis the appellant, pursuant to s 131(1) of the Act, could have only have a valid and enforceable application for Workers' Compensation if the appellant lodged the application with WorkCover on or before 28 October 2014. The application for Workers' Compensation was lodged on 12 January 2015. [7] The appellant has argued that I should consider the exercise of the discretion to extend the time period in which to make an application for Workers' Compensation on the basis of section 151(5)(c) of the Act, namely a reasonable cause. The authorities of a reasonable cause have been set out in some recent decisions cited in this commission and submitted to me by both parties. In Quinlivan v Portland Harbour Trust2 as well, Sholl J relevantly stated as follows: I then turn to what seems to me to be quite a different question, namely whether the applicant had reasonable cause for the admission to give notice in this case or to put it perhaps more accurately whether the failure to give the required notice was occasioned by any reasonable cause. One asks what is reasonable in what sense? I think the subsection means to refers to a cause 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 at the giving of notice by a reasonable man. [8] That decision was relied upon by the Full Court of the Supreme Court of Victoria in Black v the City of South Melbourne3. And the expression "reasonable cause" by their Honours was given the meaning, it appears, that: …some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable. [9] The decision of Industrial Commissioner Fisher in Churchill v QCOMP4 was referred to me in submissions. In that decision, Commissioner Fisher found that: 2 Quinlivan v Portland Harbour Trust (1963) VR 25. 3 Black v the City of South Melbourne (1963) VR 34. 4 Churchill v QCOMP (2009) 190 QGIG 247. -- 3 of 5 -- 4 The issue the Commission needs to consider is whether Mr Churchill could show a reasonable act or omission which operated to prevent him from filing the application within the prescribed time or something which might delay a reasonable person in filing the application. [10] The appellant submits that reasonable cause in this case lies in the following three circumstances: (a) that Mr Fairhurst was determined to remain in employment; (b) that Mr Fairhurst was encouraged in that determination by his employer, who took extraordinary steps to keep him in his employment after he was retrenched to find other work for him; and (c) that Mr Fairhurst was afraid – and according to the submissions, with good reason – that an application for compensation would jeopardise his current employment and his prospects of gaining any other employment. [11] The evidence before the Commission was limited in nature and I cannot on considering it conclude that reasonable cause has been made out. In coming to that conclusion, I note in particular, that there was no evidence to suggest that there could have been reasonable basis for any concern regarding his ability to obtain alternative employment in the Toogoolawah region. [12] The evidence, which I accept, is that the appellant actually sought work in the region and it did not appear to cause him any concern in making application for such employment. I am also of the view that he could not have properly held that he was in fear of dismissal as a reason for not making the application for Workers' Compensation. If he held such a fear, which I do not think he did, it would not have played on his mind after his retrenchment which, on the evidence before the Commission, became effective as and from 18 August 2014. By that time there were still over two months remaining in which the appellant could have lodged a valid application for Workers' Compensation with WorkCover. [13] He did not, according to the evidence that's before me, take any other steps (up until he filed an application for compensation in January of 2015), which may reasonably have demonstrated that there was any attempt to make a reasonable attempt to make an application for Workers' Compensation. There is no evidence that he took any reasonable steps during that period of time. On that basis, I cannot conclude that there was reasonable cause. As a consequence, the discretion is not enlivened within the Act. Orders [14] I make the following orders: 1. The appeal is dismissed. 2. The decision of the respondent dated 8 July 2015 is affirmed. -- 4 of 5 -- 5 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 this Commission. -- 5 of 5 --