Church v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 158

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Church v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 158 PARTIES: Church, Lindsay (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2013/415 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 10 October 2014 HEARING DATES: 3 and 4 September 2014 15 September 2014 (Respondent's submissions) 25 September 2014 (Appellant's submissions) 30 September 2014 (Respondent's submissions in reply) MEMBER: Industrial Commissioner Knight ORDERS : 1. Application for compensation is not valid and not enforceable. 2. Appellant to pay the Regulator's costs incidental to and associated with the hearing of the jurisdictional matter. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - preliminary issue - a question of jurisdiction - Application lodged outside six month time limit - time for applying - reasonable cause or absence from the State - discretion to extend - validity and enforceability of Application CASES: Workers' Compensation and Rehabilitation Act 2003 s 32, s 131, s 131(1), s131(5), s548, s548(A), s558, s 134, s 141, s 550, s 132(3) Q-COMP v Winsome Abbott (WC/2013/154) - Decision <http://www.qirc.qld.gov.au.au> State of Queensland (Department of Education, Training, and Employment) and Q-COMP (WC/2013/47) - Reasons for Decision -- 1 of 16 -- 2 <http://www.qirc.qld.gov.au.au> Toward v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 125 Stephen Horace MacDonald v Q-COMP (No. 2) [2008] 188 QGIG 180 Petra Helesic v Q-COMP (WC/2011/117) - Decision <http://www.qirc.qld.gov.au> WorkCover Queensland v Downey [2001] QIC 76 Appo v Q-COMP [2003] QIC 169 Armstrong v Local Government Workcare [2014] ICQ 007 State of Queensland (State Library of Queensland) v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 126 R v Workers' Compensation Board of Queensland ex parte Heffernan (1979) Qld R 563 at 567 Black v City of South Melbourne [1963] VR 34 at 36 APPEARANCES: Mr A. Messina, Counsel instructed by Turner Freeman Lawyers for the Appellant. Mr S. McLeod, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. Decision [1] Mr Lindsay Church (the Appellant) has appealed a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator / the Respondent) to reject his application for compensation, in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). [2] Prior to the hearing of the substantive matter, the Regulator requested the Queensland Industrial Relations Commission (the Commission) determine a preliminary point in connection with the Appeal (WC/2013/415) relating to whether or not Mr Church's application for compensation is valid and enforceable under s 131 of the Act, submitting the application was lodged outside the statutory time limit prescribed by s 131 of the Act. [3] The Appellant's representatives contend that although the application for compensation was lodged outside of the time limit, the Regulator previously waived the time limitation and as a result, Mr Church's application for compensation is valid and enforceable. [4] The Appellant also argues the Act confers no power on the Commission to disturb the Respondent's decision to waive the time limitation and in this respect the Commission's jurisdiction is not enlivened. [5] The Regulator contends the Commission, in presiding over a hearing de novo, has jurisdiction to determine whether s 131 has been complied with irrespective of -- 2 of 16 -- 3 whether the matter has been previously considered and resolved in favour of the Appellant. Background [6] Mr Church lodged an application on or around 24 June 2013 for compensation for an over time lower back injury sustained over a period of time from 1997 to 2008 whilst working as a spray painter for various employers in Brisbane and the Gold Coast. [7] On 10 July 2013, the Insurer advised Mr Church it had decided not to accept his application, determining it had been lodged outside the period provided for in s 131 of the Act. [8] On 16 July 2013 Mr Church made an online Application for Review of the Insurer's decision (dated 10 July 2013), with the Regulator. [9] Included with this Application for Review was an email of the same date highlighting reasons for the delay with references to dates in 2009 and materials from relevant specialists from whom medical treatment for a back injury had been sought. Further reasons for the delay in lodging the application were provided by Mr Church to the Regulator on 29 July 2013. [10] On 27 August 2013, the Regulator set aside the Decision of the Insurer not to waive the time for applying for compensation and substituted another decision that the application was valid and enforceable, in accordance with s 131 of the Act. [11] Based on the information provided, the Regulator determined Mr Church's entitlement arose in or around December 2009. Reasons provided for waiving the time limit included reference to Mr Church's absence from Australia from 2008; and that he "made an honest error of judgment…" [12] The Regulator subsequently returned Mr Church's application to the Insurer to determine the injury. The application was rejected on 2 October 2013 with the Insurer advising it did not consider Mr Church had sustained an "injury" based on s 32 of the Act. [13] On or about 4 October 2013, Mr Church submitted an online Application for Review of the Insurer's decision (dated 2 October 2013) with the Regulator. [14] The Regulator confirmed the decision of the Insurer in its Reasons for Decision dated 18 November 2013. [15] A Notice of Appeal was filed in the Commission on behalf of Mr Church on 17 December 2013. [16] In February and May 2013, further documents and correspondence were disclosed and exchanged between the Regulator and Mr Church's representatives, Turner Freeman Lawyers, relating to Mr Church's injury including materials related to the Appellant’s conformance with s 131 of the Act. -- 3 of 16 -- 4 [17] On 22 July 2014 the Regulator wrote to Turner Freeman Lawyers confirming it intended to argue on appeal that Mr Church's application for compensation did not comply with s 131, submitting that no basis had been advanced as to why the time limit should be waived for an injury it said arose in the latter half of 2005. [18] The Vice President listed the matter for a preliminary hearing on 3 and 4 September 2014. Matters for Determination [19] The issues to determine in this appeal are:  Does the Commission have jurisdiction to determine this issue in circumstances where the matter has previously been determined by the Regulator?  If the Commission does have jurisdiction, was Mr Church's application for compensation lodged within the time provided for by s 131(1) of the Act?  If the application has been lodged out of time, is the delay attributable to a mistake, absence from the state or reasonable cause?  If the delay is attributable to one of more of the factors mentioned, should the discretion provided in s 131(5) be exercised to waive the requirement in s 131(1)? The Legislation - A Question of Jurisdiction [20] The Commission's jurisdiction in workers' compensation matters is established by ss 548 and 548A of the Act. The powers of the Commission are set out in s 558 of the Act which is produced hereunder: "558 Powers of appeal body (1) In deciding an appeal, the appeal body may - (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute it with another decision; or (d) set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate. (2) The appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer. (3) Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation." The Commission's jurisdiction and section 131 [21] Mr Messina, Counsel for the Appellant, submitted the Act confers no power on the Regulator to ignore its own decision of 27 August 2013 in which it waived the time limitation pursuant to s 131(5) of the Act and that consequently, the Respondent's decision to argue the time limitation point on appeal is invalid. -- 4 of 16 -- 5 [22] The Appellant also argues there is no provision within the Act that empowers the Respondent to make a decision in the management of the appeal that is inconsistent with a decision it made previously. [23] Relying on a number of observations made by Industrial Commissioner Black in Q-COMP v Abbott1 ('Abbott'), the Appellant submitted the Commission's jurisdiction to determine the validity and enforceability of an application under s 131 is only enlivened in circumstances where neither the Respondent nor WorkCover contemplated the issue when exercising their respective statutory powers. [24] In particular, the Appellant highlighted the following observations from Industrial Commissioner Black: "I accept Q-COMP's submission that the Commission, in presiding over a hearing de novo, is entitled to satisfy itself that the appeal before it is not a nullity and, in the circumstances of this case, that the application for compensation has been validly made; however, conduct directed to the satisfaction of the jurisdiction does not extend, in my view, to the resolution of all the questions that Q-COMP submit need to be answered. While there is a basis to find that Dr Abbott's application for compensation was lodged out of time, the evidence in the form of Exhibit 1 and Exhibit 2 does not support a conclusion that WorkCover did not waive time, in my view that is the end of the matter. I do not have the jurisdiction to conduct a review into whether WorkCover erred in arriving at a conclusion that that application was within time, or erred in arriving at a conclusion that it should extend time, or whether it erred in the manner in which it applied s 131(5) of the Act." [25] Mr McLeod, Counsel for the Regulator, relying on a number of recent authorities2, and in particular, observations by Deputy President Bloomfield in relation to the "hearing de novo" nature of the appeal proceedings, argued the Commission has jurisdiction to determine the validity and enforceability of an application under s 131, submitting that both an issue not considered by a decision maker, and by extension, an issue determined by a decision-maker, can be raised and determined on an appeal. [26] In response to the Appellant's reliance on Industrial Commissioner Black's observations in Abbott3 in support of its claims that once the Respondent has waived the time limitation, the Commission is unable to disturb that decision, Mr McLeod argued Industrial Commissioner Black was instead referring to the fact that because the appeal hearing is a hearing de novo, the Commission itself, on the evidence before WorkCover and the Regulator and any new evidence, must determine the question itself rather than embarking upon a determination of whether WorkCover erred in reaching its decision. 1 Q-COMP v Winsome Abbott (WC/2013/154) - Decision <http://www.qirc.qld.gov.au.au>. 2 State of Queensland (Department of Education, Training, and Employment) and Q-COMP (WC/2013/47) - Reasons for Decision <http://www.qirc.qld.gov.au.au>; Toward v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 125; Q-COMP v Winsome Abbott (WC/2013/154) - Decision <http://www.qirc.qld.gov.au.au>. 3 Q-COMP v Winsome Abbott (WC/2013/154) - Decision <http://www.qirc.qld.gov.au.au>. -- 5 of 16 -- 6 [27] The Commission's jurisdiction in the determination of appeals under the Act has been the subject of consideration by Hall P: see MacDonald v Q-COMP4 ('MacDonald'); Helesic v Q-COMP5; and more recently by Bloomfield DP, Black C and Thompson C - see State of Queensland (Department of Education, Training and Employment) v Q-COMP6 ('Department of Education, Training and Employment'), Abbott7 and Toward v Simon Blackwood (Workers' Compensation Regulator)8 respectively. [28] Whilst at the time of the following observations, appeals under s 550 of the Act were heard by Industrial Magistrates, in MacDonald9, His Honor noted: "…the appeal to the Industrial Magistrate...is an appeal by way of hearing de novo. The informal and hopefully inexpensive system of resolution by way of administrative review having failed, the claim for benefits is simply put to trial. The Industrial Magistrate is not required to apply forensic forceps to the minutia of the procedural dealings between an Appellant and each of WorkCover and Q-COMP." [29] In Department of Education, Training and Employment10 Bloomfield DP observed: "…in presiding over a hearing de novo, the Commission is entitled to satisfy itself, if called upon to do so*, that an application for workers' compensation… is not a nullity and, in that sense, has been properly made, including whether it was lodged within the six month time limited specified at s 131 (1) of the Act..." And later: "If the Appellant seeks to raise an issue such as whether s 131(1) has been complied with, then, having regard to the provisions of s 558 of the Act, the Commission is required to hear and decide that issue in deciding the Appeal." [30] Having considered the submissions of Mr Messina for the Appellant and Mr McLeod for the Regulator, I have formed the view the Commission is not prevented from examining and determining whether or not s 131 has been complied with on appeal where a question with respect to compliance is raised by one of the parties. [31] In particular, a prior decision or even the absence of a decision during an applicant's interaction with either the Regulator or WorkCover in their assessment of a claim for workers' compensation with respect to the waiving or otherwise of the time limitation under s 131, does not in my view prevent the Commission from examining and determining whether s 131 has been complied with on appeal. 4 Stephen Horace MacDonald v Q-COMP (No. 2) [2008] 188 QGIG 180. 5 Petra Helesic v Q-COMP (WC/2011/117) - Decision <http://www.qirc.qld.gov.au>. 6 State of Queensland (Department of Education, Training, and Employment) and Q-COMP (WC/2013/47) - Reasons for Decision <http://www.qirc.qld.gov.au.au>. 7 Q-COMP v Winsome Abbott (WC/2013/154) - Decision <http://www.qirc.qld.gov.au.au>. 8 Toward v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 125. 9 Stephen Horace MacDonald v Q-COMP (No. 2) [2008] 188 QGIG 180. 10 State of Queensland (Department of Education, Training, and Employment) and Q-COMP (WC/2013/47) - Reasons for Decision <http://www.qirc.qld.gov.au.au>. -- 6 of 16 -- 7 [32] This position was reinforced through the observations of Hall P and more recently Bloomfield DP with respect to the de novo nature of appeal proceedings before the Commission. [33] Whilst it is clear on the authorities that it is not the Commission's role to go back and delve down into every aspect of the legislation, and in particular the numerous determinations that can arise during the administrative review stage, by lodging an Appeal the Appellant has, in effect, opened the gates for both itself and/or the Respondent to request the Commission to determine, having regard to its powers at s 558, any number of preliminary issues, including compliance with s 131 of the Act. [34] In my view, Mr McLeod is correct in his assertions that there are no current authorities preventing the Commission from dealing with a particular matter relating to a claim, simply because it had previously been determined in favour of a claimant during the administrative review process. [35] In a practical sense, if the Appellant's arguments were accepted, then the Regulator would be bound by findings in its previous review decisions related to a particular claim, to the extent that it could result in a situation where, for example, a determination that a claimant was a "worker" during the review process would have to be maintained even in circumstances where additional evidence might support a different finding from the Commission. [36] For these reasons, I have determined the Commission possesses the jurisdiction and the power to consider the Respondent's arguments that Mr Church's application for workers' compensation is not valid and enforceable within the meaning of s 131 of the Act. Was the application for compensation lodged within time? [37] In order to determine whether Mr Church's application for compensation was lodged in time it is necessary to: (1) establish the date of lodgment and; (2) the date when the entitlement to compensation arose. [38] It is common ground that the date of lodgment for the application was 25 June 2013, however the parties disagree about the time period when the entitlement to compensation arose. [39] Correspondence from Turner Freeman Lawyers to the Regulator asserts Mr Church's entitlement arose in April 2009 when Mr Church was referred for specialist review and was advised to claim the equivalent of Centrelink disability benefits in the UK. [40] Mr Messina on behalf of the Appellant submits that whilst there is no evidence the Appellant received a certificate within the meaning of s 132(3) of the Act, the Commission has been provided with a report prepared by Dr Scott dated 21 May 2014 (attached to exhibit 9) referring to an MRI that was obtained in May 2009 which subsequently led to Mr Church receiving surgery in December 2009. [41] In this regard, Mr Messina submits the Appellant's entitlement to compensation arose sometime between April 2009 and December 2009. -- 7 of 16 -- 8 [42] Whilst the Regulator's initial decision confirmed it was satisfied Mr Church's entitlement to compensation arose in or around December 2009, Mr McLeod submitted that during the preparation for the Appeal before the Commission it became apparent that the basis upon which the Regulator decided to waive the time limit under s 131 was done so without regard to subsequent information which came to light. [43] In this regard, the Regulator contends Mr Church's entitlement to compensation first arose on or around 7 February 2005 when he was first assessed by Dr Karthigasu, or in the alternative, in May 2007 when on his own admission, the Appellant sought medical treatment for his back injury. Relevant Legislation - Date Entitlement to Compensation Arises [44] Part 5 of Chapter 3 of the Act sets out provisions and procedures relevant to applications for compensation. Section 131 provides that an application for compensation is to be lodged within six months after the entitlement to compensation arises. The section is set out below: "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 lodged the application was due to - (a) mistake; or (b) the claimant's absence from the State; or (c) a reasonable cause." [45] Section 141 of part 7 of Chapter 3 of the Act deals with when an entitlement to compensation for an injury arises. The section is set out below: "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 -- 8 of 16 -- 9 (c) if the injury is an oral injury and the worker attends a dentist - a 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)." Evidence - Time Issue [46] In support of the argument that Mr Church's entitlement to compensation arose sometime between April 2009 and December 2009, the Appellant's representative referred the Commission to an MRI Spine Lumbar and Sacral report dated 6 May 2009 (Exhibit 8, page 243) and the report of Orthopaedic Surgeon, Mr Peter Scott dated 21 May 2014 (Exhibit 9, ANT1) which includes references to a large posteria bulge in the L5/S1 disc level. [47] The Appellant contends the time limitation contained in s 131(1) commences from the date on which a doctor assesses the injury as resulting in total or partial incapacity, submitting it is not the state of law that all the Appellant needed to do was consult a doctor concerning his back problems in order for the time limitation in s 131(1) to commence. [48] Counsel for the Regulator argued the date of assessment and in this matter, the date Mr Church's entitlement to compensation arose does not materialise only when there has been an assessment, but occurs when there has been as assessment of the injury itself. [49] Mr McLeod submits subsections (1) and (2) of s 141, as a matter of statutory construction, should be read separately because the respective subsections deal with separate and distinct matters. That is, s 141(1)(a) is not dependent on s 141(2)(a) occurring. [50] The Regulator pointed to a series of documents, medical reports and verbal evidence arising out of the preliminary hearing in support of its contention that Mr Church was seeking medical treatment for what he believed to be a work related injury; along with its position that the Appellant's entitlement to compensation (if at all) arose in February 2005, or in the alternative, May 2007, including:  Correspondence from the Appellant's solicitors to the Regulator stating: "3. With respect to the appellant's injury: -- 9 of 16 -- 10 (a) …our client first commenced experiencing symptoms of back problems is not precisely known but occurred in 2005 and approximately several months prior to 11 November 2005. (b) …medical treatment sought by our client was (i) chiropractic treatment by Mylene Goodwin; (ii) spinal X-Ray with Dr Ross; (iii) consumption of anti-inflammatory and pain-killing medication; and (iv) consultations with general practitioners at the Surfers Paradise Day Night Surgery" (P206, MDD21, Dray: exhibit 2) (my emphasis).  Further correspondence to the Regulator from the Appellant's representatives on 25 June 2014 included: "No medical records are available as to [the appellant's] consultations with medical practitioners in 2005 in Australia and whether or not those consultations related to his back injury. Our client was never certified as either partially or totally incapacitated for work because of his back injury while he was working in Australia. The Medicare history reveals that he underwent a spinal X-Ray in November 2005 on referral from his chiropractor. The records of the radiologist are not available. … The Appellant stands by his previous particulars and case…that his injury arose over a period of time with symptoms first commencing in 2005." (P214, MDD23, Dray: exhibit 2)  Comments from the Appellant stating he had reported his condition to his Assistant Manager at Mal Gilbert Smash Repairs and that: "8. I didn't attend any doctors in Australia only chiropractors who would perform manipulation to my spine on the gold coast (sic) that I would pay for." (P31, MDD11, Dray: exhibit 2)  The statement of work colleague Mr Troy Gravolin dated 7 October 2013 where he deposed the Appellant had: "…complained about back issues quite frequently and some days he struggled to complete a full day's work. At times [the appellant] asked me to drive him to the chiropractor as he was unable to drive himself due to the lack of movement and pain." (P168, MDD19, Dray: exhibit 2)  Medicare records confirming: "(a) the appellant had four (4) medical consultations in 2005, three (3) at the Surfers Paradise Surgery; -- 10 of 16 -- 11 (b) two (2) chiropractic visits in 2005; and (c) an X-Ray was performed on 11 November 2005, by Dr Ross (the code shows a spinal examination)." (P229-233, MDD26, Dray: exhibit 2)  A letter from the Appellant's representatives to a consultant neurosurgeon and Dr Emma Laverty detailing the Appellant's work history which included: "Our client describes that at the beginning of a work day he would be relatively pain free however half way through the day at approximately 1-2pm he would be experiencing severe lower back pain and would find it very difficult to sustain the bent awkward postures required of his duties. Our client would commonly take days of as a result of his back injury. Our client underwent a course of chiropractic treatment whilst living in Australia." (P238, MDD28, Dray: exhibit 2)  The history contained in Dr Peter Scott's report dated 21 May 2014 noting: "1.2 [The appellant] states that in 2005 he began to develop severe lower back pain while at work and attended a chiropractor for treatment. His pain was sufficiently severe that he found his legs giving way at time when he was standing. He did not have any actual leg pain at that stage. He states he had a spinal X-Ray in November 2005 following which he had further chiropractic treatment. At that stage he states he was hardly able to walk. He was off work for periods at a time at that stage. He was treated with medication in the form of pain relieving medication, anti-inflammatory tablets and Gabopentin." (P257, MDD33, Dray: exhibit 2) (my emphasis). [51] In its submissions, the Regulator highlighted various inconsistencies in the evidence given by the Appellant initially in his sworn affidavit (Exhibit 5) and later during the proceedings, where under cross examination, it is submitted a number of contradictions arose in Mr Church's evidence, particularly with respect to his explanations as to why he moved away from the initial reasons he provided for his visit to Dr Karthigasu on 7 February 2005, the timing and number of prescriptions for his heart medication, his reasons for attending medical appointments with Dr Synad in 2007 and when he was prescribed a muscle relaxant called Diazapam. [52] In my view, the Regulator's concerns with respect to the inconsistencies in Mr Church's evidence and in turn his credit are justified. Whilst I accept some time has passed since Mr Church's time in Australia it is difficult to ignore the large number of inconsistencies which arose during his evidence particularly when considering various medical reports, records and documentation tendered during the proceedings which highlighted Mr Church's use of medical services as well as his attendance at medical consultations for his back in both 2005 and 2007. [53] Section 131(1) of the Act provides that an application for compensation is valid and enforceable only if it is lodged within six months after the entitlement to compensation arose. Section 141(1) provides that an entitlement to compensation arises on the day the worker is assessed by a doctor. In WorkCover Queensland v -- 11 of 16 -- 12 Downey11 Hall P held that "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." In Appo v Q- COMP12 Hall P noted the word used in s 141 is "assessed", not "diagnosed". His Honour also said that he was not attracted to the argument that "there is no assessment until the assessment is made manifest in a certificate." [54] In this matter, particularly given the time that has passed since 2005 and some of the difficulties the parties have experienced in accessing medical records and notes due to the closure of various medical centres, a determination of the date involves full consideration of past Medicare records, patient records, documentation exchanged by the parties as well as the evidence of various lay witnesses, including Mr Church during the proceedings. [55] Where a decision has to be made between consultations Mr Church attended in February 2005, May 2007, and April to December 2009, the evidence associated with Mr Church's consultation with Dr Synad in May 2007 is sufficient to support a conclusion, on the balance of probabilities, that Dr Synad assessed the alleged injury at this time. [56] Mr Messina for the Appellant valiantly argued that even in circumstances where the Commission found Mr Church attended a consultation with Dr Synad in May 2007 that it was still not enough to trigger the time limitation in s 131(1) of the Act. [57] In this respect, the Regulator submitted each subsection in section 141 (1) and (2), in so far as they relate to s 131(1) as a matter of statutory construction, should be read separately because the respective subsections deal with separate and distinct matters. Furthermore, section 141(1)(a) is not dependent on s 141(2)(a) occurring. [58] Significantly, Mr Church confirmed his own experiences in his appointment with Dr Synad in May 2007 in relation to his back when he said: "Right. And was the purpose of going to see the doctor - that was because you were experiencing problems to your back; is that correct?---Yes. Right. And did you advise the doctor how you thought you had a back problem, what was the cause of your back problem?---Doing work in Australia. Right. So you told the doctor that you had a back problem because of work tasks you had performed in Australia; is that correct?---Yes. Right. Okay. And did the doctor carry out an assessment on you, in relation to your back problem?---Yes. And that's why he prescribed you with that drug, wasn't it, because the drug is a muscle relaxant, isn't it?---Yes." (D1,P36,L10) 11 WorkCover Queensland v Downey [2001] QIC 76. 12 Appo v Q-COMP [2003] QIC 169. -- 12 of 16 -- 13 [59] Having considered the submissions of both the Regulator and the Appellant in relation to the trigger for the determination of the date of assessment, I am satisfied Mr Church's entitlement to compensation arose when he attended his appointment for work related back pain with Dr Synad in May 2007. [60] It is not necessary, in all the circumstances of this matter, to then proceed to consider s 141(2) of the Act to interpret s 131(1); see Armstrong v Local Government Workcare13. [61] It follows that Mr Church, at best, has lodged his application for compensation more than 5 years after the initial assessment date and in this respect I find his application has been lodged outside the statutory limitation prescribed in s 131(1). Was the failure to lodge within the statutory time period due to mistake, reasonable cause or absence from the state? [62] Section 131(5) enables the Commission to waive the time period if it is satisfied the Appellant'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." [63] In State of Queensland (State Library of Queensland) v Simon Blackwood (Workers' Compensation Regulator)14, Industrial Commissioner Black noted the approach adopted in R v Workers' Compensation Board of Queensland ex parte Heffernan15 where Kelly J, with whom Stable SPJ and Dunn J agreed, held that: "The first matter for consideration is what was the duty of the Office in relation to an application filed after the expiration of the six months period prescribed by clause 4(2) of the Schedule. Firstly, it was required to consider whether the failure to make the application within the prescribed time was due to mistake, absence from Queensland, or other reasonable cause. If it was not satisfied that the failure was due to any of those matters then there is no power to waive the time provision and that would be the end of the matter. If, however, it was satisfied that the failure was due to any one of those matters the question arises whether the time provision must then be waived or whether the Office has a discretion whether or not do so, and if there is such a discretion, what matters it may properly take into account in its exercise." And later: "In my view, the context of clause 4(2) itself would not indicate that the word ‘may’ has a compulsive meaning. For instance, I do not consider that, having provided a limitation period of six months, the legislature would have intended that the limitation should automatically be waived merely because the failure to make the application with the prescribed period was due to absence from 13 Armstrong v Local Government Workcare [2014] ICQ 007. 14 State of Queensland (State Library of Queensland) v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 126. 15 R v Workers' Compensation Board of Queensland ex parte Heffernan (1979) Qld R 563 at 567. -- 13 of 16 -- 14 Queensland, irrespective of any other circumstances as, for example, a long and unexplained delay in making the application after the applicant had returned to Queensland." [64] The Appellant submits the reason why he did not lodge his application for compensation within the time limitation contained in s. 131(1) of the Act was due to his absence from Queensland and a reasonable cause. [65] The Regulator submitted there is no basis to warrant the Commission to waive time under s 131(5)(a) to (c) and that although the Appellant was residing in Scotland at the time he made his application, subsection 131(5)(b) is of no assistance to the Appellant as a basis upon which he did not comply with s 131(1). [66] Reasons provided by the Appellant as to why he did not lodge the application for compensation within the time limit included:  "I was living in the UK and assumed that I would not be entitled to compensation because I was not a permanent resident in Queensland;  After my back problems, chronic pain, heart attack and depression I was overwhelmed by the multiplicity of my problems and my mental health was a significant problem preventing me from functioning normally at the time;  I was abusing alcohol to numb the physical and psychological pain I was in;  I did not have ready access to legal advice that was familiar with the Queensland workers compensation system;  If I had been living in Queensland the doctors would have told me that I was covered by workers compensation." [67] During the proceedings Mr Church also submitted that his belief that he was a contract worker required to provide his own workers compensation also prevented him from making a claim. [68] In the case of Black v City of South Melbourne16 the Full Court of the Supreme Court of Victoria considered the meaning to be given to "reasonable cause" as it appeared in s34(1) of the Limitations of Actions Act 1958 (Vic). Before citing the passage by Scholl J shown above the Full Court 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 reasonable in the circumstances." [69] The issue for determination is whether Mr Church has been able to identify circumstances which might have delayed a reasonable person from filing the application or some act or omission which operated to prevent the filing of a claim. [70] Mr Church's evidence is that he was working as a contract spray painter between 2003 and 2006. After spending a short period of time overseas he returned to Australia and recommenced working as a spray painter in an "employee capacity". (D1, P42, L25) 16 Black v City of South Melbourne [1963] VR 34 at 36 -- 14 of 16 -- 15 [71] The difficulty I have with the reasons for delay as submitted by the Appellant, in so far as they relate to his knowledge or understanding of his rights with respect to workers compensation, are highlighted in the following exchange during Mr Church's cross-examination: "Right. Okay. So your understanding was the only time you were working on contract and you weren’t entitled to apply for workers' compensation, was between 2003 and 2006. Is that right?---Yeah. Yeah. July 2006. Yes. Right. So after July 2006, it was your understanding, I suggest to you, because you weren’t working on contract, that if you sustained a workplace injury, you would be entitled to apply for workers' compensation in Australia - in Queensland?---I don't follow. Sure. I'll be more direct. You gave evidence that it was your understanding that between 2003 to July 2006, you were working on contract and you weren't entitled to apply for workers' compensation if you sustained any workplace injury. Is that correct?---Yes. And I suggest to you, as you've just said that, you no longer, from your understanding, worked on contract from July 2006, that, I suggest to you, after that period of time, because you weren’t on contract, if you sustained a workplace injury, it was your belief at that time that you could've lodged a claim for workers' compensation for a workplace injury. Because you were no longer on contract?---Yes." (D1,P42,L25) And then: "And that ultimately occurred, did it not, in 2007, when you injured your hand, you received some compensation benefits, didn't you?---I think so. I was taken to the Gold Coast Hospital and I was handed an envelope by a surgeon who said there was a [indistinct]. He signed me off for two weeks and she said to hand it to the employer. Right. Okay?---[indistinct]. Right. And you received some compensation benefits, didn't you, I suggest to you?---I think so. I think so. Yes." (D1,P43,L5) [72] In my view, the evidence highlights Mr Church had previously had some experience with workers compensation processes. [73] Mr Church also returned to Australia after his appointment with Dr Synad on 1 May 2007, and commenced employment with another smash repair business for a period of time. [74] This creates even more challenges for the Commission when considered against a backdrop where the Appellant: -- 15 of 16 -- 16 (a) is claiming he sustained an injury over a period of time from 1997 to 2008; (b) had some experience or understanding of the workers compensation system in Queensland in 2007; and (c) held a role as an employee after his consultation with Dr Synad on 1 May 2007, but within the period of time which he says he sustained the injury. [75] After considering the evidence, submissions of both the Regulator and the Appellant and the reasons submitted by Mr Church for the delay in his application, I find no basis to arrive at a conclusion that the delay of more than five years in the lodgment of his application was due to a reasonable cause or absence from Queensland. Discretion to Extend [76] In this respect, I have not been persuaded to exercise my discretion to waive the time period. [77] Consequently, I find Mr Church's application for compensation is not valid and enforceable under s 131 of the Workers' Compensation and Rehabilitation Act 2003. [78] The Appellant is ordered to the pay the Regulator's costs incidental to and associated with the hearing of the preliminary point heard in Brisbane on 3 and 4 September 2014. [79] I order accordingly. -- 16 of 16 --