Beattie v Q-COMP [2013] QIRC 78

CITATION: Jeffery Grant Beattie AND Q-COMP (WC/2012/469) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Jeffery Grant Beattie AND Q-COMP (WC/2012/469) DEPUTY PRESIDENT O'CONNOR 31 May 2013 Appeal against decision of Q-COMP - Application for compensation lodged out of time – Extension of time under s. 131 of the Workers' Compensation and Rehabilitation Act 2003 – Extent of delay – Explanation for delay - Issue for determination was whether failure to lodge the application within time was due to reasonable cause - Appeal upheld. DECISION [1] This decision relates to an appeal by Mr Jeffery Grant Beattie (the Appellant) pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Review Unit, Q-COMP (Q-COMP) dated 15 November 2012 in which Q-COMP confirmed an earlier decision by WorkCover dated 10 July 2012 not to waive the time limit, contained in s. 131 of the Act, for lodging a workers' compensation application. Preliminary [2] Pursuant to s. 131 of the Act, an application for workers' compensation must be lodged within 6 months after the entitlement for compensation arises. However, s. 131(5) of the Act allows the insurer to waive the requirements of sub-section (1) if it is satisfied that the failure to lodge the application was due to mistake or reasonable cause. There was no suggestion that the Appellant was absent from Queensland during the relevant period. [3] The decision of WorkCover not to waive the requirements under s. 131(1) is reviewable by Q-COMP and the decision of Q-COMP is an appealable decision. [4] The hearing before the Commission is a hearing de novo and the onus rests on the Appellant to demonstrate, on the balance of probabilities, that his failure to lodge the application for compensation within the statutory timeframe was due to a mistake or reasonable cause. [5] Relevantly, s. 131 reads as follows: "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 than20 business days before the day on which the valid application is lodged. (3) Subsection (2) does not apply if death is, or results from, the injury. (4) An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist. (5) An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to - (a) mistake; or (b) the claimant's absence from the State; or (c) a reasonable cause." [6] Time runs from when "the entitlement to compensation arises". When the entitlement to compensation arises is provided in s. 141, which states: "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 (c) if the injury is an oral injury and the worker attends a dentist—the dentist. -- 1 of 5 -- 2 (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." [7] Mr Beattie lodged his application for compensation on 24 May 2012 in respect of an injury said to have been sustained on 16 August 2011. [8] The application for compensation was lodged some 3 months after the requisite 6 month period required under s. 131(1) of the Act. [9] On behalf of Mr Beattie it was argued that his failure to lodge the application within the requisite six month time period specified in s. 131(1) was due to a reasonable cause (see s. 131(5)(c)). [10] Counsel for the Appellant did not pursue an argument based on mistake, no doubt in reliance on the decision of Black v City of South Melbourne [1963] VR 34 at 37-38. The Evidence [11] The Appellant commenced employment with Austin Engineering around 6 January 2005 first as a casual employee and then as a full-time permanent employee from 28 January 2008. He was initially employed as a sandblaster and later became a forklift driver. [12] The Appellant recalled that on 2 August 2011, the last day he worked for Austin Engineering he had been sent to Carpet Call at Logan to drag rolls of carpet out of the industrial bin that was located at their premises. The carpet was used by Austin Engineering to put between painted steel when they were loading trucks to prevent damage or marking. [13] The Appellant took 3 August 2011 off to be at home for a house inspection, something that he had done previously. [14] On the morning of 4 August 2011 the Appellant woke up and was unable to get out of bed. He felt he had something wrong with his back and was experiencing pain descending down his left leg. The Appellant thought that he had a blood clot in his left leg. He attended the Ipswich Hospital and was advised that he had sciatica and was prescribed Voltaren. [15] On the same morning, the Appellant spoke to Michael Martin, a supervisor at Austin Engineering, when he realised that he could not go into work. He recollected telling Mr Martin that he did not think his injury was work related. [16] The Appellant went to his local General Practitioner, Dr Harry Ratnam on 4 August 2011 and underwent an epidural procedure and was sent for an MRI and CT scan. He gave evidence that he recollects Dr Ratnam saying that the injury was probably a result of heavy lifting and operating the forklift at work. 1 [17] Dr Ratnam referred the Appellant to Dr Sara Olsen, a neurosurgeon at Ipswich, for assessment. The Appellant consulted Dr Olsen on 18 August 2011 at which time she referred him to the public hospital system as he was not covered by WorkCover. [18] On 5 August 2011, the Appellant again contacted Mr Martin. In his statement of 15 March 2013 (Exhibit 2), the Appellant says: "I had a further conversation with Michael Martin as I thought I might be back at work the next week and that was about 5 August 2011. I may have said something along the line of 'I do not know when I will be able to return to work as I may need an operation'. I also said that I would not be claiming compensation as the injury did not happen at work – I still thought it was something to do with my leg and possibly a blood clot and that is the reason why I said that." [19] Notwithstanding the advice from both the Ipswich Hospital and Dr Ratnam the day prior, the Appellant still remained of the opinion that he had a blood clot in his left leg. 1 T1-14 Lines 21-24. -- 2 of 5 -- 3 [20] Dr Scott Howard, General Practitioner saw the Appellant sometime in August 2011. At that time, the Appellant was suffering from severe pain and was unable to return to work. Dr Howard originally prescribed Panadeine Forte and then Oxycontin. [21] The Appellant recalls having a conversation with Dr Howard about making a workers' compensation claim. In cross-examination, the following exchange took place: "Now, it was at that time you say in your statement that you inquired with Dr Howard as to whether you should put in a WorkCover claim?-- Yeah. I think he asked me was I doing anything about it and I just said, "I don't even really know what you're on about" sort of thing, you know, and he just said, "Well, in my experience hurrah hurrah you're wasting your time" or something, you know, and just - as I said, all's was in my mind was get fixed, get back to work. For some reason I had it in my head I was going to be - a couple of pills or something like that and next week I was going to be back going hard again like I always have been. But you first raised a WorkCover issue with Dr Howard? It wasn't the other way round - Dr Howard asking you whether this was work-related?-- I don't know, mate. I forget. That's it. I just know that he said to me that I'd be wasting my time. Did you tell him what Dr Ratnam thought?-- I don't know. Don't know?-- Not sure. Can't recall."2 [22] On 24 April 2012 Dr Howard issued a "Workers' Compensation Medical Certificate". Dr Howard states that the reported cause of the injury was lifting heavy weights at work and he was satisfied that the Appellant's injury was consistent with the stated cause. [23] Dr Howard in his letter dated 12 April 2013 writes that he could not recall the exact words he used to the Appellant in relation to the success of otherwise of a WorkCover claim. However, he would have made the following points: "a. I always explain to my patients that a decision as to whether or not they make a workcover claim is theirs to make, and not mine. I never refuse to complete claim forms if so requested. I accept that that he would have been influenced in this decision by my advice and that Dr. Olsen and the previous treating GP. b. My opinion to Mr Beattie at the time of his initial visits, would have been, and still remains, that in my view his claim would ultimately be unsuccessful. This is based upon previous experience with similar cases, where a lack of a definitive history and mechanism of injury, and radiographic evidence of underlying degenerative, or, in Mr Beatties case, a congenital change in the spinal column results in rejection claims, or at best cover for a fixed period of ‘exacerbation' but no liability for the underlying cause. My impression is that this was the initial conclusion based on his prior assessment by Dr Olsen and treating GP also." [24] Dr Howard also noted that the Appellant could not identify any particular event that occurred at work which precipitated his back pain. Nor was Dr Howard aware of any change in history during the course of his attendance at the Goodna Medical Centre. Dr Howard went on to make the following observation: "My impression of his decision to make a claim in 2012 is that he had exhausted other avenues of attempting to fund treatment of his back, and as he to date remains languishing on an endless public hospital waiting list, he decided he would pursue a workcover claim, based on legal advice, failure of other options, and his long history of manual activity and fork lift driving at work." [25] It was the Appellant's evidence that the reason for not making a claim for compensation was that he relied on the advice of Dr Howard. At paragraph 14 of his statement dated 15 March 2013 (Exhibit 2) the Appellant notes: "Because Dr Howard had told me that I was wasting my time to submit a WorkCover claim I did not submit a claim. By Dr Howard saying that what he did say to me, I did not seek any legal advice with respect to this matter as I thought I would be wasting my time." [26] In cross-examination, the following exchange took place: "Okay. In the bundle of documents that I have given, which is the records - most recently? So it's Exhibit 4 to the next document?-- This one 2 T1-15 – 1-16. -- 3 of 5 -- 4 It's the second page - yes, of that. Can you have a look at number two of Dr Howard's report, please. And he says - and you can either agree or disagree with this - that his impression of your decision to make a claim in 2012 is that you had exhausted other avenues of attempting to fund the treatment for your back?-- Yep. That's true. You agree with that?-- Yeah. Yep. And that's when [indistinct] brought the matter - brought up, I was wasting my time and then [indistinct] speaking about all that. Now, have a look at number three of Dr Howard's comments?-- Yep. Yeah. And I'm interested in your response with respect to 3(a), please?-- Yep. Would you agree with that?-- That it's my decision and not his? Yes?-- Yeah."3 [27] The Appellant accepted in cross-examination that he had previously submitted three workers' compensation claims. One claim was made in 2006 and a further two claims were made in January and August of 2009. On each occasion the Appellant said that all the paperwork had been completed by his employer, Austin Engineering. [28] The statement of the Appellant indicates that he was unaware of his rights in relation to workers' compensation matters, and in particular, the six month limit in which to submit a claim to WorkCover. He further states he simply relied on the advice of Dr Howard and did not submit a claim. 4 [29] In April 2012 he attended at Jon Kent Lawyers on an unrelated matter. During the meeting, and as a consequence of his discussion with Mr Kent, the Appellant became aware that he may be entitled to lodge a WorkCover claim. A claim for compensation was subsequently lodged on 23 May 2012. Conclusions [30] By the express terms of s. 131(1) of the Act, a claim is valid and enforceable only if the time limit is met. As observed by his Honour President Hall in ANZ Banking Group v Q-COMP (2004) 175 QGIG 1125, "non- compliance with the six-month time limit … is a matter of some gravity." [31] In determining whether or not to exercise the discretion to waive compliance with s. 131(1), I have had regard to the decision of Quinlivan v Portland Harbour Trust [1963] VR 25 at 28 wherein Sholl J wrote that a "reasonable cause" is one "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." [32] The evidence before the Commission suggests that the delay in making the application for compensation was approximately 3 months; the Appellant had only a year 10 education with no post-school qualifications; and he was clearly of limited means.5 [33] I accept the evidence of Dr Howard that the Appellant would have been influenced by his advice. It was, in my view, reasonable for the Appellant to rely on the professional medical advice given by Dr Howard as to his prospects of success in lodging a WorkCover claim. It is unlikely that a person in the Appellant's position would necessarily make the distinction between medical and legal advice. [34] I further accept that the Appellant refrained from lodging his application for compensation on the basis of the advice that he received from Dr Howard and it was, in the circumstances, reasonable for him to do so. [35] It was submitted by Counsel for Q-COMP that it was "curious that he sought Dr Howard's advice over his 'family GP'". It is clear from the evidence before the Commission that the Appellant had little regard for Dr Ratnam and it was, as a consequence, understandable why he would prefer the opinion of Dr Howard over that of Dr Ratnam. In evidence, the Appellant expressed confidence in Dr Howard and stated that: 3 T1-18. 4 Statement of Jeffrey Grant Beattie dated 15 March 2013 at para. 16. 5 Churchill v Q-COMP [2009] 190 QGIG 247. -- 4 of 5 -- 5 "… as I said, I've got faith in him because he'll sit down and he'll speak to me and explain things and stuff, you know, where the other - Rattnam was - you know, I wouldn't take a dog to him, that's how I feel about that bloke."6 [36] Whist it is not possible, on the material before the Commission, to properly determine the merits of the matter, it is worth noting the opinion of Dr Howard that the Appellant might expect "… at best cover for a fixed period of exacerbation" and "For his age his lumbar spine is drastically compromised, presumably from many years of compression shock driving forklifts."7 [37] There is little doubt that, should the discretion not be exercised in favour of the Appellant, the prejudice which would flow to him would lie in his inability to have the claim heard and determined. [38] Q-COMP could not submit that there was any prejudice which would be suffered by them. [39] Whilst the Appellant had lodged three previous workers' compensation claims, none of these claims had been completed by him but had been prepared and submitted by his employer. [40] I accept that following the lodgement of the compensation claim, the Appellant has exhibited an enthusiasm for prosecuting this matter and has submitted himself for examination by the relevant medical experts in a timely way and otherwise met his obligations including the attendance at the s. 552A conference and the mention of the matter on 26 March 2013. [41] Having considered all the evidence before the Commission I am satisfied that the Appellant has discharged his onus of establishing that he had a reasonable cause for failing to lodge his claim for compensation as required by s. 131(1). [42] For the reasons advanced above, I make the following orders: 1. I uphold the appeal; 2. I set aside the decision of Q-COMP dated 15 November 2012 to reject the Appellant's application for workers' compensation on the basis that it was lodged outside the time period provided for in s. 131 of the Act; and 3. I determine that the Appellant's application for compensation is made in accordance with s. 131 of the Act. D. L. O'CONNOR, Deputy President. Hearing Details: 2013 18 April Released: 31 May 2013. Appearances: Mr S. B. Neaves, instructed by Jon Kent Lawyers, for the Appellant. Mr N. Jarro, instructed by and appearing for the Respondent, Q-COMP. 6 T 1-22 Lines 1-4. 7 Exhibit 4 - Letter of Dr Howard to Princess Alexandra Hospital dated 24 April 2012. -- 5 of 5 --