Brisbane City Council v Q-COMP [2013] QIRC 7

CITATION: Brisbane City Council AND Q-COMP (WC/2012/244) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Brisbane City Council AND Q-COMP (WC2012/244) DEPUTY PRESIDENT SWAN 14 January 2013 DECISION [1] This application, made by Brisbane City Council (the Appellant), relates to a decision of Q-COMP (the respondent) to extend the period of time in which Mr Gynther (an employee of the Appellant) could pursue a claim for compensation [s. 131(10 and 131(5) of the Workers' Compensation and Rehabilitation Act 2033 (the Act)]. Background to Mr Gynther's claim [2] The original application by Mr Gynther stated that an injury had allegedly occurred on 3 September 2012. The injury was described as "post-traumatic disorder". [3] Mr Gynther had been engaged by the Appellant as a trainee bus driver at the Toowong Bus Depot. He was suspended from his employment with the Appellant on 17 November 2010 and his employment was terminated on 1 February 2011 after a Department of Education and Training and the Arts (DETA) investigation. [4] Mr Gynther saw his treating general practitioner, Dr Wong on 18 November 2010 when the abovementioned diagnosis was made. Dr Wong issued a "Workers' Compensation Medical Certificate" on 25 November 2010 certifying that Mr Gynther was unable to work from 17 November 2010 to 13 December 2010. [5] It is agreed between the parties that the time for Mr Gynther to apply for Workers Compensation arose from 18 November 2010. Pursuant to s.131(1) of the Act there is a six month period for one to lodge a claim and in this case that period of time expired on 18 May 2011. Mr Gynther's application was filed on 17 June 2011, therefore outside of the six month time limit. [6] S. 131(5) of the Act permits the insurer to waive the six month time limit under certain circumstances: s.131(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." [7] As Mr Gynther was not absent from the State [s.131(5)(b)] the Commission is required to determine whether or not the failure to lodge the application within the Statutory time frame was due to a mistake s.131(5)(a) or a reasonable cause s.131(5)(c). [8] It is the Appellant's claim that at all times Mr Gynther was aware that he could lodge a claim for Workers' Compensation. Mr Gynther was able to instruct a lawyer and lodge a challenge to a show cause letter from the Appellant with regard to his traineeship. Further, in February 2011, Mr Gynther lodged a complaint with the Office of the Training Ombudsman. Essentially, it is the Appellant's view that Mr Gynther was able, during the six month period, to pursue other complaints and other challenges, however was unable to lodge his Workers' Compensation claim in time. [9] The Appellant called the following witnesses: • Mr D Brookes [Depot supervisor at the Toowong Bus Depot - Toowong and Richlands depots]; and • Mr John Mitchell -- 1 of 4 -- 2 [10] Mr Brookes' evidence traversed the following points: • Mr Brookes worked at the Toowong bus depot from November 2010 until February 2011 when he worked from the Richlands bus depot. • During the period of Mr Gynther's employment, Mr Brookes said he had interactions with him regularly and more often than with other drivers. • Mr Brookes did not recall ever having a discussion with Mr Gynther on the question of Workers' Compensation. • Notwithstanding that, Mr Brookes said he frequently had discussions with employees concerning matters of sick leave. He would refer those persons to a project officer particularly if it involved long term sick leave and to the respondent's rehabilitation department if it involved WorkCover issues. • Under cross-examination, Mr Brookes confirmed that Mr Gynther had not discussed with him any issues concerning stress leave. [11] Mr John Mitchell had previously worked for the Appellant as a Workplace Relations Officer holding the position of Principal Human Resources Officer for Brisbane Transport. [12] Mr Mitchell's evidence was as follows: • Part of his role was to investigate grievances lodged by employees. • He had investigated complaints made by Mr Gynther and produced a report to that investigation on 30 November 2010. • The report investigated four complaints which had been made by Mr Gynther. • Mr Mitchell did not recall discussing the issue of a Workers' Compensation claim with Mr Gynther, however his contemporaneous notes taken at the time of the interview showed that Mr Gynther mentioned considering a Workers' Compensation claim. Mr Mitchell said it was his practice if the issue of Workers' Compensation arose to advise an employee of the steps which needed to be taken. [Transcript – 1-13]. • Under cross-examination, Mr Mitcell recalled Mr Gynther saying that he felt "denigrated and stressed as a result of the alleged harassment". [Transcript – 1-14] [13] In essence, Mr Gynther's evidence focussed upon his attempts to save his job and it was only when that failed that he turned his mind to proceeding with his Workers' Compensation claim. [14] Dr Wong (Mr Gynthers treating General Practitioner) completed a Workers' Compensation claim form for Mr Gynther on 18 November. The diagnosis of "post traumatic disorder" was made and Mr Gynther was referred to a clinical psychologist. [15] From November 2012 up until May 2007, Dr Wong believed that Mr Gynther's symptoms "would have affected him quite a bit both emotionally and ability to – to perform his day to day function." [Transcript – 1-19] Dr Wong also believed that Mr Gynther's ability to concentrate would have been affected by his condition. [16] Dr Wong recalled a discussion with Mr Gynther in May 2011 when WorkCover was discussed, but it had taken Mr Gynther until 7 June 2011 to agree to go ahead with his WorkCover claim. Upon asking Mr Gynther why he had not come back to see Dr Wong in the intervening period, Mr Gynther said he had been focussing on trying to keep his job. [17] Upon being cross examined by the Appellant, Dr Wong agreed that his notes of a consultation with Mr Gynther show the query "Want to make WorkCover claim? Dr Wong agreed that Mr Gynther had indicated that he wanted to make a claim rather than Dr Wong suggesting it. [18] Dr K Krauchaar, psychologist [trauma specialist who, amongst other things, deals with people with post traumatic stress disorders] saw Mr Gynther on 6 September 2010. Further consultations occurred on 11 November and 8 December 2010. [19] Dr Krauchaar diagnosed Mr Gynther as suffering from post traumatic stress disorder. Dr Krauchaar explained some of the symptoms he believed Mr Gynther was experiencing as follows - -- 2 of 4 -- 3 "Intrusive thoughts and memories related to some of the verbal incidents that had happened ….. He was also suffering nightmares. He was getting intrusive flashbacks when he was – might be at home, he might be in the supermarket. He would be getting intrusive flashbacks about these incidents at work. He – if an incident was something he might be talking to somebody – might remind him of something – of a threat to something at work then he would get very upset, he would get heart-pounding, trouble breathing, stressful, reminders of the stressful experiences would come flashing back to him." [Transcript – 1-30] [20] Mr Krauchaar also said that issues such as loss of interest in the things he used to enjoy was evident as well as feeling emotionally numb. This range of experiences, in Dr Krauchaar's view, were categories which fell within the DSM-IV guidelines and these ranged from extreme to quite extreme at times. [Transcript – 1-31]. [21] Mr Gynther visited Dr Krauchaar on 3 May 2011 and requested that a report to Q-Comp be provided. This occurred on 14 October 2012. At that last consultation, Dr Krauchaar believed that Mr Gynther's symptoms remained unaltered. [22] Dr Krauchaar also believed that Mr Gynther's time had been taken up with trying to keep his job. Dr Krauchaar had not found it unusual that Mr Gynther had not sought further consultations during the intervening period after his first consultation because he could only concentrate upon one thing and could not 'multi task". [Transcript 1-33] [23] As at 23 May 2011, Dr Krauchaar said he understood Mr Gynther had contacted a law firm with regard to Workers' Compensation. [24] Mr Gynther's stated that he did not submit his Workers' Compensation claim because he believed that he would get his job back fairly quickly after he explained his version of events. [25] Mr Gynther says that he raised the issue of WorkCover with Mr Doug Cullen (an Appellant employee) who allegedly responded by saying "Rubbish, there's no such thing". [Transcript 1-45]. [26] Mr Gynther also says that upon raising the issue with Mr Brookes, the response was "Get lost, get over it, get out of here, you have been disciplined" [Transcript 1-46]. [27] Mr Gynther's claim was that he was always of the belief that the investigation undertaken would rectify things. Notwithstanding that a re-investigation occurred, and he did not get a positive outcome. [28] The evidence shows that induction material given by the respondent to new employees supplied information concerning Workers' Compensation and that Mr Gynther had signed acknowledgement to the effect that he had received such material. As well, Mr Gynther, during November 2010, had consulted a law firm to assist him in his show cause notice from the respondent. Mr Gynther's evidence was that he hadn't agreed with the information provided by that law firm. [29] During May 2011, Mr Gynther had contacted a different law firm for the purpose of discussing Workers' Compensation. [30] Mr Gynther received a further show cause notice from the respondent and he engaged the same law firm but was again displeased with the content of the correspondence from that law firm to the respondent. However, during these dealings with this law firm, Mr Gynther did not discuss the issue of Workers' Compensation. [31] During this period of time, amongst other things, Mr Gynther had challenged the cancellation of training, sought a review of the first decision, and lodged a complaint to the Office of the Training Ombudsman. [32] As a result of the Training Ombudsman's report, the cancellation of Mr Gynthers was held in abeyance as a further investigation was conducted by the Training and Employment Recognition Council. [33] At the end of those processes, Mr Gynther was unable to halt the cancellation of his training contract with the respondent. The finality of that process was known to Mr Gynther on 16 June 2011. Conclusion [34] The Appellant says that as Mr Gynther was able to pursue a number of actions aimed at keeping his job (including contacting Solicitors), it is questionable that he could not turn his mind to lodging his Workers' Compensation claim. [35] In my view Mr Gynther should be granted an extension of time in which to have this matter heard. -- 3 of 4 -- 4 [36] S.131(5)(b) and (c) are not relevant for consideration. However, in my view, s.315(5)(c) is applicable in these circumstances. [37] There is evidence showing that Mr Gynther was aware of the possibility of lodging a Workers' Compensation claim. This is clear from his discussions with his General Practitioner and Psychologist. [38] However, there is also evidence, which I have accepted, showing that Mr Gynther held a genuine belief that he would get his job back through challenging his traineeship cancellation. In pursuing this course, he became single-minded and focussed only upon this aspect. [39] Dr Krauchaar believed that Mr Gynther was unable to do more than focus upon that issue, being unable to 'multi- task". [40] In Australia and New Zealand Banking Group Limited and Q-COMP, his honour President Hall stated: "As to the finding of "reasonable cause" it seems to me that too much should not be made of the reasonable mind. The limitation period and the power to waive the limitation period are to operate in circumstances in which workers suffering physical, psychiatric and psychological injuries are seeking to claim benefits. It will frustrate the purpose of the Act if a failure to meet the time limit attributable to the very "injury" complained of is to be denied pardon because a reasonable person who (of course) would not be suffering from the "injury", would have met the time limit." [41] These comments in my view are apposite to the circumstances in this case. [42] This application is dismissed. D.A. SWAN, Deputy President. Hearing Details: 2012 2 November Released: 14 January 2013 Appearances: Mr C. Murdoch, of Counsel, instructed by the Brisbane City Legal Practice, for the Appellant. Mr P. Rashleigh, of Counsel, instructed by Q-COMP. -- 4 of 4 --