Augustynski v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 207

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Augustynski v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 207 PARTIES: Augustynski, Stephan (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2014/252 PROCEEDING: Appeal against decision of the Workers' Compensation Regulator DELIVERED ON: 5 December 2014 HEARING DATES: 27 and 28 November 2014 MEMBER: Industrial Commissioner Neate ORDERS : 1. The Appeal is dismissed. 2. The decision of the Regulator dated 16 July 2014 is confirmed. 3. The Appellant is to pay the Respondent's cost 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 - Application for compensation lodged two years after date of entitlement to compensation for injury arose - whether time limit for lodgement should be waived - whether failure to lodge was due to mistake or a reasonable cause - appellant bears onus of proof CASES: Workers' Compensation and Rehabilitation Act 2003 ss 32, 131, 141 Appo v Q-COMP (2003) 174 QGIG 1120 Armstrong v Local Government WorkCare [2014] ICQ 7 Black v City of South Melbourne [1963] VR 34 Blackwood v Egan [2014] ICQ 020 Church v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 158 -- 1 of 19 -- 2 Glen Churchill v QComp [2009] 190 QGIG 247 Latoudis v Casey (1990) 170 CLR 534 Quinlivan v Portland Harbour Trust [1963] VR 25 R v Workers' Compensation Board of Queensland ex parte Heffernan (1979) Qd R 563 State of Queensland (State Library of Queensland) v Simon Blackwood (Workers' Compensation Commissioner) [2014] QIRC 126 Susan Marshall v Q-COMP (WC/2011/386) - Decision <http://www.qirc.qld.gov.au> Wiley v Q-COMP (Unreported, Townsville Magistrates Court, Acting Industrial Magistrate Bice, 30 May 2003) WorkCover Queensland v Downey [2001] QIC 76 APPEARANCES: Mr S. Augustynski, in person Mr J. Wiltshire, counsel instructed directly by the Workers' Compensation Regulator Mr C. Mossman of M+K Lawyers for the Intervener Decision [1] Stephan John Augustynski ("the Appellant") has appealed to the Queensland Industrial Relations Commission ("the Commission") against a decision by the Workers' Compensation Regulator ("the Respondent") confirming a decision of WorkCover Queensland not to waive the time for applying for compensation in accordance with s 131 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"). [2] The appeal concerns one issue: whether the Appellant should be allowed to make an application for compensation more than six months after the entitlement to compensation arose. It is not about whether that application should succeed. As the Appellant stated in his final submission, the case is "all about timeframe, not the problems." The issue will be resolved by deciding whether the Appellant's failure to lodge the application was due to mistake, or his absence from the State, or a reasonable cause (see s 131(5) of the Act). Procedural matters [3] The appeal is a hearing de novo. The task for the Commission is not to decide whether the reasons given by WorkCover or the Respondent for rejecting the application for compensation were wrong. Rather, the Commission has to decide whether the time limit for lodging the application for compensation should be waived because the Appellant's failure to lodge the application was due to one of the reasons listed in s 131(5) of the Act. [4] The Appellant bears the onus of proof, on the balance of probabilities. In other words, he has to satisfy the Commission that there was a legally valid reason why he failed to lodge the application in time and that the Commission should decide that the time limit be waived. Only if he can satisfy the Commission about those matters will his claim for compensation be considered. -- 2 of 19 -- 3 [5] By order made by Industrial Commissioner Thompson on 21 October 2014, the Appellant's previous employer, Quest Carpet Manufacturers Pty Ltd ("Quest"), was granted leave to appear in these proceedings subject to certain specified conditions, including that, until further order, Quest was not at liberty to seek costs from the Appellant at the completion of any hearing of the appeal. The legislative scheme [6] For the purpose of this appeal, it is necessary to consider or apply parts of ss 32, 141 and 131 of the Act. [7] At the relevant time, s 32 provided in part that: (a) an injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury (s 32(1)); and (b) "injury" does not include a psychiatric or psychological disorder arising out of, or in the course of any of the following: i. reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; ii. the worker's expectation or perception of reasonable management action being taken against the worker. (s 32(5)) [8] Section 141 provides in part that: (a) the entitlement to compensation for an injury arises on the day the worker is assessed by a doctor (s 141(1)(a)); and (b) any entitlement to weekly payment of compensation starts on: i. if a doctor 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 ii. if a doctor 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 assesses the injury (s 141(2)). [9] The relevant subsections of s 131 of the Act provide that: (a) an application for compensation is valid and enforceable only if the application is lodged by the claimant within six months after the entitlement to compensation arises (s 131(1)); and -- 3 of 19 -- 4 (b) an insurer may waive s 131(1) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to mistake, or the claimant's absence from the State, or a reasonable cause (s 131(5)). Questions to be answered [10] Applying the statutory provisions to the facts in relation to this case, it is appropriate to answer the following questions: (a) What was the injury for which compensation is sought? (b) Where did the injury occur? (c) When did the injury occur and the entitlement to compensation arise? (d) When was the application for compensation made? (e) Why did the Appellant fail to lodge the application within the prescribed period? (f) Should the Commission waive the requirement in s 131(1) to lodge the application for compensation within six months after the entitlement to compensation arose? The Appellant's employment and injury history [11] The Appellant was employed by Quest from about April 1999 until 24 February 2011, apparently as its Queensland State Manager. The work involved meeting clients and driving, but no heavy lifting. The Appellant enjoyed his work. In 2006, he injured his back and had a scan of it. He says that he informed his employer of the injury, but kept working. According to the Appellant, in early 2010, the CEO of Quest required him to hand deliver cartons of carpet samples weighing 25 to 30 kg. He asked to be exempted from that task. The Appellant says that he found it difficult and painful to lift such weight, but kept doing the work so as not to lose his job. He experienced what he described as spasms and shocks. The change in that aspect of the work he was required to do coincided with other events and conversations in relation to his employment which led him to believe that his position with Quest was being undermined. He considered that he was being "set up" by reference to his back condition, and said the CEO of Quest suggested that if he could not carry the samples he could not do his job. [12] Having experienced "one too many" back spasms the Appellant consulted Dr Martin Bull, a general practitioner, on 15 September 2010. That was the first visit to Dr Bull, who became his doctor and continues to treat him. Dr Bull's notes of the first consultation (Exhibit 5) record that they had a long discussion about issues in the Appellant's life in relation to work. The Appellant was on leave but was preparing to return to work and wanted to sleep to have the energy to face the issues that would resurface on his return. He was not depressed but was anxious. Dr Bull prescribed oxazepam, medication which he described as an anti-anxiety -- 4 of 19 -- 5 drug with sleep properties. He prescribed it to assist the Appellant switch his mind off and have a reasonable night's sleep. [13] Dr Bull saw the Appellant next on Tuesday 28 September 2010. His consultation notes record that the Appellant was experiencing further pressures at work. He continued "Pt wants to go to see psychologist to have tools to help with situation." There was some issue about whether the Appellant asked to see a psychologist or Dr Bull suggested it. What is undisputed is that the matter was discussed and Dr Bull referred the Appellant to a psychologist. The Appellant subsequently saw Karen Blunt on possibly 20 to 30 (or more) occasions. On 28 September 2010, Dr Bull also prepared a Mental Health Assessment of the Appellant (Exhibit 7) which included the diagnosis of "reactive anxiety." As part of the entry on mental health history, Dr Bull recorded various symptoms experienced by the Appellant over the previous two months "in reaction to increasing pressure from CEO to resign or be terminated" and being "undermined by CEO". He also noted that the Appellant was "trying to fight back by continuing to work hard but work conditions increasingly difficult." Dr Bull issued a medical certificate for the period from Monday 27 September to Thursday 30 September 2010 inclusive stating that the Appellant was receiving medical treatment and would be "unfit to continue his usual occupation" for that period (Exhibit 8). [14] The Appellant continued to see Dr Bell. The matters discussed at, and actions taken as a result of, those consultations during the following seven months are summarised as follows. (a) On 30 September 2010, the Appellant reported that he had been seen by Kerryn Blunt for two hours and felt better for it. She had signed off the Appellant for two weeks. He did not want a psychological certificate but a general medical certificate, which Dr Bull issued for the period 30 September to 15 October 2010 (Exhibit 9). At that stage the Appellant indicated that he would probably have to find another job. In his oral evidence, the Appellant confirmed that he did not want the CEO of Quest to know at that stage that he had a psychological issue, because, among other things, he was embarrassed about seeing a psychologist and because he considered that the CEO had put him in that position. Dr Bull said that a general medical certificate was appropriate, in part at least, because there is a lot of stigma attached to mental health. Dr Bull received a letter from Kerryn Blunt dated 30 September 2010 that stated that the Appellant had depression in addition to anxiety. (b) On 13 October 2010, the Appellant discussed more employment related issues with Dr Bull. He still needed oxazepam to sleep and Dr Bull prescribed more of those tablets and issued a medical certificate for the period 13 to 22 October 2010 (Exhibit 10). (c) On 21 October 2014, the Appellant reported to Dr Bull that he felt better with psychology but was not mentally well enough to try back at work. The psychologist apparently advised that the Appellant have another two weeks off work. The Appellant had received communication from his boss but was not going to resign and would be -- 5 of 19 -- 6 seeing a lawyer the next day. (In his oral evidence, the Appellant stated that the consultation with the lawyer was about unfair dismissal.) Dr Bull issued a medical certificate for the period 21 October to 5 November 2010 (Exhibit 10), and noted he would follow up in two weeks or "sooner if crisis". (d) On 5 November 2010, the Appellant advised that he could not face going back to work. He was still with a psychologist. Dr Bull noted that the Appellant was "mentally coping but only by keeping busy". He issued a medical certificate for the period 5 to 19 November 2010 (Exhibit 10). (e) On 16 November 2010 the Appellant consulted Dr Bull about two matters: a lumbar spine issue (intermittent leg pain left, previous CT showed some disc bulge at L4/5) in respect of which he was using non- steroidal anti-inflammatory drugs as required, and employment issues. Dr Bull's notes described the Appellant as "Mentally stronger" and "Standing up to boss", but also that he would like to continue psychology. Dr Bull: i. prepared a Mental Health Review in which he repeated the diagnosis of reactive anxiety and noted that the Appellant was to continue on psychology and continue away from work (Exhibit 11); ii. created a letter to Kerryn Blunt; and iii. issued a medical certificate for the period 16 November to 3 December 2010 (Exhibit 10). (f) On 24 November 2010, Dr Bull noted that the Appellant still needed oxazepam for sleep and he prescribed more of that medication. (g) On 1 December 2010, Dr Bull prescribed more oxazepam and issued a medical certificate for the period 1 to 17 December 2010 (Exhibit 10). (h) On 18 December 2010, Dr Bull noted that the Appellant was "not travelling as well in last week in terms of anxiety", was sleeping "on and off" and using oxazepam sparingly. The Appellant continued to be off work and was still under a psychologist which he "finds helps." The Appellant had been in contact with a former national sales manager (of a company that was not Quest) in relation to how the Appellant was being treated at work. The Appellant "advised to put more on medical certificate so it is up to company to respond." Dr Bull issued a medical certificate in the usual form for the period 17 December 2010 to 17 January 2011, which concluded with additional words "Due to his condition he has been unable to communicate in depth his illness to his workplace. The patient is aiming to return to his post as State Sales Manager in January 2011." (i) On 8 January 2011, the Appellant was prescribed more oxazepam. -- 6 of 19 -- 7 (j) On 21 January 2011, Dr Bull issued a medical certificate for the period 21 January to 18 February 2011 (Exhibit 10). Apparently the Appellant went to work but received a call from his boss saying that he was not to go near any Quest office or employee and was to take the week off. Dr Bull noted that the Appellant was "still determined to fight case," had met a friend who used to be an assistant to a barrister, was told to get a psychiatric opinion on mental health, and wants to continue with psychology. Dr Bull sent a letter dated 22 January 2011 to Dr Maxwell Katz, a psychiatrist, which sought his "assessment of the Appellant and advice on further management." Dr Bull stated that the Appellant had presented in September with "predominantly anxiety over the stress created at work" (by specified circumstances involving the Appellant's boss). The Appellant had been under a psychologist, Kerryn Blunt, which he found useful, and he attended Dr Bull "regularly". The letter concluded: "He is trying to remain focused and fight the battle against his employer but is under a lot of pressure. He uses prn oxazepam for sleep." (Exhibit 13) Dr Bull gave oral evidence that he referred the Appellant to Dr Katz to help him from a legal point of view, and possibly for further medication or different types of psychology or therapy. (k) On 9 February 2011, Dr Bull noted that the Appellant was now under Dr Katz and Ms Blunt. The Appellant was "determined to fight on" and did not want to have any more medical certificates. Although he wanted to continue psychology, he also wanted "to get back to work and normality." Dr Bull prescribed oxazepam. He wrote a Mental Health Review (Exhibit 13) in terms similar to the previous Review, and a letter to Ms Blunt. The Appellant also indicated that pain in his lumbar spine was a problem and he experienced pain on and off down his left leg. Dr Bull requested an x-ray of hip and CT of lumbar spine. (l) The Appellant's hip and spine conditions were referred to in the consultation notes for 22 February 2011, and Dr Bull requested diagnostic imaging and pathology. In reference to the work related psychiatric condition, Dr Bull noted that the Appellant's job had been advertised, but he had "Not been phoned yet." The Appellant had been to a legal team (who felt that he had a good case) and had spoken by telephone with two former workers (who documented workplace bullying/harassment). The Appellant was using oxazepam sparingly and had decided there would be no more medical certificates. (m) The Appellant's employment by Quest was terminated on Thursday 24 February 2011. (n) Dr Bull noted in his progress notes for a consultation on 26 February 2011 that the Appellant had been sacked and was happy that the matter had come to a head. "Lawyers have not commented on -- 7 of 19 -- 8 whether he has a good case. A lot of info to be pured [sic] over". Dr Bull again prescribed oxazepam. He discussed some other results in relation to another condition. (o) On 9 March 2011, the Appellant lodged an unfair dismissal application with Fair Work Australia (Exhibit 1). (p) On 23 March 2011, Dr Bull noted that the Appellant "feels relaxed," was more relaxed at home, had filed an unfair dismissal claim, and occasionally takes oxazepam. Dr Bull prescribed more oxazepam. (q) On 14 April 2011, Dr Bull prescribed more oxazepam. [15] In the following months the Appellant: (a) discontinued the unfair dismissal case; (b) commenced working on commission for people with a company from Melbourne, but experienced tough business conditions and hence financial difficulties; (c) continued to take oxazepam to help him sleep; (d) experienced pain with his back and took pain killing medication and, on 9 August 2011, Dr Bull referred him to Dr Dodd for a specialist opinion in relation to his hip and lumbar spine; (e) experienced anxiety, depression and stress as his employment and financial circumstances deteriorated; and (f) was prescribed Zoloft, an anti-depressant, by Dr Bull on 9 November 2011. [16] Dr Bull completed the following applications to access funds for the Appellant: (a) a Treating Doctor's Permanent Incapacity Report to AMP dated 19 November 2011 (Exhibit 14) which: i. listed the Appellant's disabilities as anxiety and depression (which he described as "major" and having "got worse" since September 2010), osteoarthritis in left hip, and degenerative arthritis lumbar spine; and ii. nominated 27 September 2010 as the date on which the Appellant ceased employment as a result of incapacity; (b) a Medical Report to Centrelink dated 23 November 2011 (Exhibit 15) for a Disability Support Pension, which included a diagnosis of anxiety and depression (Condition 1) and degenerative osteoarthritis lumbar spine (Condition 2); and -- 8 of 19 -- 9 (c) a Medical Report to Centrelink dated 10 April 2012 (Exhibit 16) for a Disability Support Pension, which included a diagnosis of degenerative osteoarthritis lumbar spine (Condition 1) and major depression with anxiety and alcohol dependence (Condition 2). What was the injury for which compensation is sought? [17] The Respondent accepts that the Appellant has suffered an injury and that, as the letter from WorkCover to the Appellant dated 13 January 2014 (Exhibit 4) indicates, the injury is a psychological/psychiatric condition. However, Quest submits that the Appellant has not sustained an "injury" within the definition in s 32(1) of the Act. [18] Although I do not have to decide whether the Appellant suffered an injury, I proceed to decide the appeal on the basis that he was diagnosed with a psychological or psychiatric disorder. Significantly for this case, Dr Bull saw the Appellant on 28 September 2010 and he: (a) prepared a Mental Health Assessment (Exhibit 7) in which he diagnosed the Appellant as having reactive anxiety; (b) issued a medical certificate stating that the Appellant was "unfit to continue his usual occupation" for the period from 27 September 2010 until 30 September 2010 inclusive (Exhibit 8); and (c) referred the Appellant to a psychologist stating that the Appellant "presents with reactive anxiety in relation to [specified] pressures from work" and requesting an assessment and advice on further management under the better outcomes in mental health scheme (Exhibit 6). The Appellant continued to receive treatment from Dr Bull, psychologist Kerry Blunt and psychiatrist Dr Katz in relation to his psychological or psychiatric disorder. Where did the injury occur? [19] The Respondent is willing to accept, in the absence of evidence to the contrary, that the injury occurred in the workplace in the course of the Appellant's employment. However, Quest submits that the Applicant's stated injury did not arise out of or in the course of his employment, nor was his employment a significant contributing factor. [20] Although I do not have to make a finding on that issue, I note that the evidence supports the concession made by the Respondent. In particular, the Appellant's oral evidence about his interactions with the CEO of Quest and the view he formed about his employment prospects at Quest in 2010, together with Dr Bull's contemporaneous records of the Appellant's of work related concerns and anxiety (and the applications to WorkCover), indicate that his injury arose out of, or in the course of his employment, and that there was no other cause of the injury. Accordingly, I will proceed to decide the appeal on that basis. -- 9 of 19 -- 10 When did the injury occur and the entitlement to compensation arise? [21] The evidence has to be considered by reference to s 141(1) of the Act which provides that the "entitlement to compensation for an injury arises on the day the worker is assessed … by a doctor." [22] For the meaning of s 141(1), the Respondent and Quest rely on the decision in WorkCover Queensland v Downey,1 where Hall P said with respect to the timing of the entitlement to compensation referred to in s 131(1) by reference to the meaning in s 141 (noting that sections 158 and 168 of the WorkCover Queensland Act 1996 then operable were relevantly in identical terms to ss 131 and 141 respectively of the Act): "Because subs. (2) operates as an exception to or a limitation upon the operation of subs. (1), it seems to me that the expression "assessed by a doctor" … must be taken to mean "assessed by a doctor as resulting in total or partial incapacity for work". I.E., where the commencement of the limitation period is said to be triggered by the activity of a doctor, it is necessary to show that a doctor has assessed the alleged injury as involving partial or total incapacity. The exception or limitation at s. 168(2) both protects the worker against a doctor retrospectively unleashing the limitation period by an assessment that the total or partial incapacity was present many months ago, and protects insurers against an assessment that total or partial incapacity has been present for a few months. The legislature must have intended that s. 168 will be used in the interpretation of s. 158. The legislature had both sections present to the mind at the same time. Section 168(4) expressly refers back to s. 158(2)."2 In essence, the entitlement to compensation arises on the day the worker is assessed by a doctor as having an injury resulting in total or partial incapacity to work. The six-month time limit therefore runs from that date. [23] Although Dr Bull first saw the Appellant on 15 September 2010, the significant consultation for the purposes of this case occurred on 28 September 2010 when Dr Bull issued the first medical certificate, diagnosed the Appellant as having reactive anxiety, prepared a Mental Health Assessment, and referred the Appellant to a psychologist. [24] Dr Bull issued nine medical certificates to the effect that the Appellant was unfit to continue in his usual occupation for a series of consecutive or overlapping periods from 27 September 2010 until 18 February 2011 (Exhibits 8, 9 and 10). The medical certificates were in essentially the same form. [25] The Respondent submits that on 28 September 2010 the requirement of s 141 was met and hence, on that date any entitlement to compensation arose. By operation of s 131, the Appellant had to lodge his application for compensation within six months of that date, i.e. before 28 March 2011. 1 WorkCover Queensland v Downey [2001] QIC 76, confirmed in Appo v Q-COMP (2003) 174 QGIG 1120. See also Glen Churchill v Q-COMP (2009) 190 QGIG 247, 253. 2 Martin J, President, considered this passage in Armstrong v Local Government WorkCare [2014] ICQ 7. -- 10 of 19 -- 11 [26] Quest submits that, as the Appellant was assessed by a medical practitioner as being unfit for work from 27 September 2010 because of the psychological injury, any entitlement to compensation under the Act arose at least on that date. Consequently, it submits, the Appellant should have applied for compensation by 27 March 2011. [27] The Appellant made no submission on this point. [28] Given that the Appellant's application for compensation was made well outside the prescribed period, I need not choose between 27 or 28 September 2010. It is sufficient that I am satisfied that the requirement of s 141 was met in late September 2010 and that the period within which the Appellant could have lodged a valid and enforceable application for compensation expired six months after that date. When was the application for compensation made? [29] There is some uncertainty about the precise date on which the Appellant made an application for compensation. It appears that he contacted WorkCover Queensland by telephone in April 2013 and that, using information provided by him, an undated online claim form was prepared. That form is in evidence (Exhibit 2). It records that: (a) the claim is for time off work and medical expenses; (b) the injury was "back spasm, hip"; (c) the injury was said to have occurred at "Normal Workplace" "over a six month period from February 2010 whilst completing pick and delivery duties 20-30kg boxes whilst employed for Quest Carpets"; and (d) the employer was advised about the injury on 1 January 2005. [30] The Appellant obtained an Application for Compensation form from WorkCover Queensland, and he completed it by hand on 2 May 2013 (Exhibit 3). By comparison with the online claim form, the Application for Compensation stated that: (a) the claim was for "compensation"; (b) the injury was "severe depression/was a minor back problem - he made me pick + deliver 20-30 kg box"; (c) the injury happened working at his normal workplace; and (d) the employer was advised about the injury "after xray cat scan" and the Appellant "told CEO on many occasions". [31] The letter advising the Appellant that WorkCover Queensland had decided not to accept his application for workers' compensation was dated 13 January 2014 (Exhibit 4). It referred to the application lodged with WorkCover Queensland on 26 April 2013 (but not the application dated 2 May 2013) and to the statement provided -- 11 of 19 -- 12 by the Appellant on 30 April 2013. That letter refers to information other than in Exhibits 2 and 3. [32] It is not necessary to deal in detail with that letter. It refers to the claim in relation to the physical injury and the "secondary psychological injury" diagnosed by Dr Bull as "depression, anxiety." Although the claim for both physical and psychological injury was rejected under s 131(1) of the Act, Q-COMP subsequently instructed WorkCover to consider whether the claim for psychological injury was lodged within the required timeframe or whether the time for applying could be waived. WorkCover determined that the Appellant did not satisfy the requirements of s 131(1) or s 131(5). It is only the application in relation to psychological injury that is the subject of this appeal. [33] For present purposes, it is sufficient to note that the only application for compensation made to WorkCover Queensland by or on behalf of the Appellant was lodged by the end of April 2013. The precise date is not determinative of the appeal because, by any measure, the application was made about 30 months after the entitlement to compensation for the injury, and about 24 months after the date for lodgement specified in s 131(1). Why did the Appellant fail to lodge the application within the prescribed period? [34] As noted earlier, s 131(5) of the Act provides that an insurer may waive s 131(1) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to mistake, or the claimant's absence from the State, or a reasonable cause [35] There is no suggestion that the Appellant was absent from the State of Queensland. Indeed he confirmed that he had resided at Upper Coomera at all relevant times until April 2014. Thus, the Appellant can only succeed if the Commission is satisfied that the lateness of his application was due to mistake on his part that there was "a reasonable cause" for his delay. [36] The Appellant, who bore the onus of proof, made no submission in relation to s 131(5). In particular, he did not make submissions about whether his failure to lodge an application for compensation within the prescribed period could be explained by reference to mistake or a reasonable cause. [37] In his oral evidence, the Appellant offered various explanations as to why he did not make the application for compensation until late April 2013. These included that: (a) he was not aware of the compensation claim process, but he applied when someone told him to apply; and (b) he was unaware of how serious his injury was and waited until it was "ridiculously obvious" to him before lodging the application. [38] It was also apparent that he was not motivated to apply for compensation during the relevant period because: -- 12 of 19 -- 13 (a) he was a self-motivated achiever who had never been unemployed and had never been insecure about his job; (b) he was able to use superannuation and other moneys to "stay afloat" and pay his bills; and (c) principle and pride were at stake. [39] Although the Appellant made no submissions by reference to s 131(5), the Respondent and Quest made separate submissions which anticipated arguments that the Appellant might put, then sought to demonstrate why such submission should not be accepted. [40] The proper approach to interpreting s 131(5): The Respondent relied on the following passage in Black v City of South Melbourne3 where the Full Court of the Supreme Court of Victoria stated: "In Akermanis' Case, Sholl, J, held correctly in our view that what has to be shown is that the failure to give the statutory notice within six months was occasioned by mistake or reasonable cause. Delay after that period has expired is irrelevant for this purpose, though it may in some cases be relevant to the question of prejudice, or to the manner in which the court's discretion should be exercised." The Respondent submits that there must be a causative relationship between the mistake or reasonable cause and the failure to lodge. It is then only the six month period which is relevant to deciding whether that trigger exists for the consideration of the exercise of the discretion. Having regard to decisions in subsequent Queensland cases, 4 I agree with that submission. [41] Mistake: As noted earlier, the Appellant offered as one explanation of why he did not lodge an application for compensation within the prescribed period that he was not aware of the compensation claim process. In cross-examination he said that, had he been advised, he would have lodged an application for compensation during that period. [42] The Respondent submits that ignorance of the right to claim compensation or of the time limit within which to make a valid claim does not amount to mistake. Support for that proposition is found in the judgment of the Full Court of the Supreme Court of Victoria in Black v City of South Melbourne.5 [43] More recently, the Commission has also expressed the view that lack of knowledge of a time limit within which to lodge an application for workers' compensation does not constitute a "mistake" within the meaning of s 131(5)(a) of the Act. Something more than mere lack of knowledge of the time period is required.6 3 Black v City of South Melbourne [1963] VR 34, 36. 4 See e.g. R v Workers' Compensation Board of Queensland ex parte Heffernan (1979) Qd R 563, 567, Church v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 158, [63]. 5 Black v City of South Melbourne [1963] VR 34, 37. 6 See Susan Marshall v Q-COMP (WC/2011/386) - Decision <http://www.qirc.qld.gov.au>, [29], Glen Churchill v QComp [2009] 190 QGIG 247, 255. -- 13 of 19 -- 14 [44] The Respondent goes further to submit that the Appellant's assertion of his ignorance is "doubtful." It refers to Dr Bull's practice of discussing with patients with stress claims whether they wished to have workers' compensation medical certificates and to pursue the workers' compensation route or whether they preferred generic medical certificates. I note, however, that Dr Bull could not recall having such a discussion with the Appellant, and it does not appear in his notes. The Appellant gave evidence that he did not ask Dr Bull for a workers' compensation certificate and did not recall discussing workers' compensation matters with Dr Bull during the six month period from late September 2010. [45] The Respondent submits that it would have been relatively easy for the Appellant to obtain advice as to his workers' compensation rights, particularly given that he consulted lawyers from around 22 October 2013 in relation to his employment circumstances. However, the Appellant gave evidence that his consultations with lawyers during the relevant period were about unfair dismissal only. The lawyer did not mention WorkCover. [46] The Respondent acknowledges that the Appellant would wish to withhold from his employer information about his psychological injury, possibly in the hope he could work through it. Given that the Appellant's employment was terminated with the six month period from late September 2010, any concerns he had about the implications for his employment of a compensation application could not have operated from 24 February 2011. Thus, there would appear to have been no reasonable cause for him not to have made the application before late March 2011. Alternatively, any misunderstanding about the entitlement to claim after termination does not explain why he did not make the claim between 28 September 2010 and when his employment was terminated on 24 January 2011. [47] Having regard to past decisions about "mistake" and the evidence in these proceedings, I am not satisfied that the Appellant's failure to lodge the application within the prescribed period was due to mistake on his part. [48] Reasonable cause: Did the Appellant have a "reasonable cause" for not lodging his application for compensation within the prescribed period? [49] In Quinlivan v Portland Harbour Trust,7 Scholl J said that the expression "reasonable cause" means to refer 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 the giving of notice by a reasonable man." [50] In Black v City of South Melbourne,8 the Full Court of the Supreme Court of Victoria compared "reasonable cause" with "mistake" and said: "The inquiry here appears to be of a much wider kind justifying a more liberal attitude. The expression 'reasonable cause' appears to us to mean 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." 7 Quinlivan v Portland Harbour Trust [1963] VR 25, 28. 8 Black v City of South Melbourne [1963] VR 34, 38. -- 14 of 19 -- 15 The Full Court then cited with approval the passage from Quinlivan, quoted above.9 [51] The Respondent identifies three bases on which the Appellant might contend that he had a reasonable cause for not lodging his application for compensation within the prescribed period: (a) he was unaware of the compensation claim process; (b) he did not realise how bad his condition was until much later; and (c) as suggested in the Notice of Appeal, his physical, emotional and mental health (possibly compounded by the medication he was taking - anti- depressant, anxiety, sleeping and pain killers) was such that he "was unable to lodge within time." [52] The first of those bases was considered in relation to "mistake" and I need not discuss it further. In the circumstances outlined earlier, the Appellant's ignorance of the claim requirements does not provide a "reasonable cause" for the late lodgement of his application. [53] As to the second basis, the Appellant obtained a series of medical certificates from Dr Bull which together covered the period from 27 September 2010 until 18 February 2011. Each certificate stated that the Appellant was "unfit to continue in his usual occupation." [54] The Respondent and Quest 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. [55] In any case, Quest points to the decision of an Industrial Magistrate in Wiley v Q- COMP,10 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. [56] The third explanation proffered should also be rejected. [57] There was no evidence to suggest that the Appellant's medical condition prevented, or significantly impaired, his ability to lodge a compensation application in the period within six months of his injury. Dr Bull's evidence was significant on this matter. As the Appellant's treating general practitioner continuously since 15 September 2010, Dr Bull was consulted by the Appellant on 16 occasions in the period between that date and 23 March 2011. His consultation notes are in evidence (Exhibit 5), as are a Mental Health Assessment that he prepared in relation to the 9 Black v City of South Melbourne [1963] VR 34, 38. 10 Wiley v Q-COMP (Unreported, Townsville Magistrates Court, Acting Industrial Magistrate Bice, 30 May 2003) -- 15 of 19 -- 16 Appellant dated 28 September 2010 (Exhibit 7), and Mental Health Reviews dated 16 November 2010 (Exhibit 11) and 9 February 2011 (Exhibit 12). [58] Dr Bull gave oral evidence to the effect that the Appellant was healthy enough to make a WorkCover claim and there was no reason to do with his health that might have prevented him from doing so. Dr Bull also stated that the Appellant was mentally fit to pursue an unfair dismissal claim, though he thought the Appellant was scarred by the whole event. That assessment is consistent with the results of the mental status examination in Exhibit 7 and is at least implicit in the Goals described in Exhibits 11 and 12. It is also supported by the descriptions of the Appellant's condition from time to time in Dr Bull's consultation notes (summarised earlier in these reasons), including reference in those notes (and confirmed in his oral evidence by the Appellant) that at various times between 22 October 2010 and 26 February 2011, he was consulting lawyers about his employment situation (both in prospect of possible dismissal and after his employment was terminated). He also discussed his employment circumstances with a former national sales manager (about December 2010) and a friend who use to be an assistant to a barrister (about January 2011). [59] Although the Appellant was certified as unfit to perform his usual work, it appears that he was capable of anticipating and planning for significant future events, and seeking professional advice in relation to them. [60] The Appellant's oral evidence was that the principal medication he was taking in the period from September 2010 until February 2011 was oxazepam, which he took primarily at night but sometimes one a day when he got "a bit too anxious and too hard." He said that he had some painkillers (e.g. Voltaren) at home that were helping with his back pain in the short term, but he did not want to take anti- depressants "or anything like that," and he used oxazepam sparingly. Although the Appellant mentioned his back pain to Dr Bull from February 2011, Dr Bull did not prescribe pain-killing medication. It was not until late 2011 that anti-depressants were prescribed and even then, the Appellant did not want "to go on them." The Appellant said that he did not want anti-depressants before then. [61] The Appellant's evidence is corroborated by Dr Bull's consultation notes and his oral evidence that the only medication which he prescribed during the six month period was oxazopam, anti-anxiety medication which can also assist with sleep. Dr Bull gave evidence that he prescribed it for both purposes. The dosage was 15mg 1-2 tablets at night as required. It was not a drug which would have interfered with the Appellant's functioning during the day. If anything, it was a medication which would have aided his functioning by assisting him to sleep and easing his anxiety. On 19 December 2010 and 22 February 2011, Dr Bull recorded the Appellant was using oxazepam "sparingly." [62] Considering the evidence as a whole, I am satisfied that medication is not a "reasonable cause" for the Appellant not lodging a claim within the prescribed period. [63] Quest also notes that the Appellant pursued a number of his legal rights after the termination of employment, including: -- 16 of 19 -- 17 (a) an unfair dismissal matter with Fair Work Australia on 2 March 2011; (b) an early release of the Appellant's superannuation from AMP on the grounds of permanent incapacity (Exhibit 14) in November 2011; and (c) a disability support pension benefits from Centrelink (Exhibits 15 and 16) and an appeal of Centrelink's refusal to the Administrative Appeals Tribunal. In their submission, the fact that the Appellant pursued these other avenues of redress demonstrates that there was no impediment to him making a workers' compensation claim at the relevant time. [64] The evidence clearly supports a finding that the Appellant did not have a reasonable cause for not lodging his application for compensation within the prescribed period. Should the Commission waive the requirement in s 131(1) to lodge the application for compensation within six months after the entitlement to compensation arose? [65] There is authority for the proposition that if one of the conditions in s 131(5) is satisfied the Commission may, but not must, waive s 131(5). In other words, even if the Commission is satisfied that a claimant's failure to lodge the application was due to mistake, or the claimant's absence from the State, or a reasonable cause, the Commission still has a discretion whether to waive s 131(1).11 [66] Given my findings that none of the conditions in s 131(5) has been met, it is not necessary for me to decide whether to exercise a discretion and waive s 131(1). However, it is appropriate to make some observations about the exercise of the discretion. [67] Substantial submissions were made by the Respondent and Quest against the exercise of the discretion. The Respondent submitted that, in the event the Commission was satisfied there were grounds for considering the exercise of the discretion, it should take account of the potential prejudice to Quest and to WorkCover in having to make a determination of the claim. If the appeal was upheld, the Commission would need to refer the matter back to WorkCover to determine whether or not to accept the claim based on the definition of injury in s 32 of the Act. As a psychological injury, the insurer would have to determine whether it arose out of reasonable management action taken in a reasonable way (see s 32(5) of the Act). The Respondent submitted that the circumstances of the case suggest the claim would be strongly contested by the employer. Quest clearly indicated that the Appellant's claim should be excluded by the operation of s 32(5) because the conduct of Quest referred to in the Appellant's claim constitutes reasonable management action taken in a reasonable manner. [68] The Respondent also submitted that the chances of WorkCover and the employer properly investigating the relevant facts have been greatly prejudiced by the period 11 See R v Workers' Compensation Board of Queensland ex parte Heffernan (1979) Qd R 563, 567, cited with approval in State of Queensland (State Library of Queensland) v Simon Blackwood (Workers' Compensation Commissioner) [2014] QIRC 126, [34], [35]. -- 17 of 19 -- 18 of more than one and a half years since the lodging of the claim, and certainly by the fact it is now over four years since the injury. It is unlikely that a fair determination could now be made having regard to the inevitable fading of memories of witnesses and the potential loss of contemporaneous documentation. [69] I note, without deciding, that had I found in favour of the Appellant in relation to one or more of the conditions in s 131(5), he would have had to satisfy me to exercise the discretion despite those submissions of the Respondent and Quest. The Appellant made no submission in relation to the exercise of that discretion. Conclusion [70] Having regard to the evidence and the applicable law, I have concluded that the appeal should be dismissed and the decision of the Respondent dated 16 July 2014 should be confirmed. [71] The Respondent submitted that the Appellant should pay the Respondent's costs. I can see no reason not to make that order. As noted earlier, Quest was granted leave to appear in these proceedings subject to certain conditions including that, until further order, Quest was not at liberty to seek costs from the Appellant at the completion of any hearing of the appeal. Quest proceeded on that basis and has not sought any order to vary the order made on 21 October 2014. [72] It is apparent from statements made by the Appellant during the hearing that the result described above would come as no surprise to him. Indeed, he seemed to expect it. [73] This case illustrates some of the difficulties, risks and costs of litigation pursued by self-represented parties. For various reasons, not entirely attributable to the Appellant, a case that could have been heard in one day was spread over two days. The appeal was dismissed and the Appellant will have to pay the costs of the Respondent (although not the costs of Quest). [74] Even if the Appellant had succeeded in relation to this appeal, the Respondent and Quest indicated that at least one other potentially significant obstacle (in the form of s 32(5) of the Act) would have been placed in the way of him obtaining compensation. [75] Consequently, the futility of bringing these proceedings is highlighted not by the result but by the fact that, even if the Appellant had succeeded in having the requirement of s 131(1) waived, there was no guarantee that his application for compensation would have been successful. Put colloquially, even if he had won the battle he might have lost the war. [76] If, as may well be the case, these issues were brought to the Appellant's attention by the representatives of the parties and an Industrial Commissioner at a pre-hearing -- 18 of 19 -- 19 conference then the Appellant should have appreciated the risks of proceeding to a hearing and, perhaps, decided to discontinue the appeal. [77] In that context, it is appropriate to make two observations about the award of costs in this case and similar proceedings. First, the costs order is not and must not be characterised as some sort of penalty imposed on the Appellant. Rather, as numerous judicial decisions (including a recent decision of the President of the Industrial Court)12 make clear, costs have a compensatory function. They are awarded to indemnify the successful party against the expense to which they have been put because of the legal proceedings.13 An award of costs is not designed or intended to be used as any form of disapproval or punishment. Nonetheless, an order for costs against an unsuccessful appellant will often have significant financial implications for them. [78] Second, the costs order does not deal with the full costs of these proceedings. For example, it does not: (a) cover the costs of Quest; (b) reimburse the public for the cost of the Commission administering the appeal, conducting a conference of the parties, running the hearing and preparing the reasons for decision; (c) address the opportunity cost of the consequential delay in hearing or resolving other cases; or (d) deal with the emotional strain on the Appellant, and perhaps others, of preparing for and prosecuting the appeal and then awaiting the outcome. [79] The preceding six paragraphs are not meant as a personal criticism of the Appellant. He was entitled to lodge and prosecute his appeal and he did so with the personal resources he could muster. Nor are these comments meant to suggest that unrepresented parties are doomed to fail in hearings before the Commission. Rather, they are intended to provide a reason for such parties to pause at each significant step along the way to a hearing and assess whether it is worth proceeding to the next stage. [80] For some who cannot afford legal advice, it might be possible to obtain assistance through bodies like the Queensland Public Interest Law Clearing House Incorporated ("QPILCH") so that they can receive an independent assessment of the strengths or weaknesses of their case and possibly obtain some representation before the Commission in conferences. [81] For the reasons set out above the appeal is dismissed, the decision of the Regulator dated 16 July 2014 is confirmed, and the Appellant is to pay the Respondent's cost of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. [82] Order accordingly. 12 Blackwood v Egan [2014] ICQ 020. 13 See e.g. Latoudis v Casey (1990) 170 CLR 534, 543 (Mason CJ), 563 (Toohey J), 567 (McHugh J). -- 19 of 19 --