Borg v Q-COMP [2012] QIRC 185

CITATION: Grace Borg v Q-COMP (WC/2012/127 - Decision) <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Grace Borg AND Q-COMP (WC/2012/127) VICE PRESIDENT LINNANE 9 August 2012 DECISION [1] This is an application by Grace Borg (Applicant) for leave to extend the time for lodging an appeal against a decision of the Review Unit of Q-COMP (Q-COMP) dated 18 April 2011. On this occasion the Q-COMP Reasons for Decision was e-mailed to the Applicant on 21 April 2011 although she did not open the e-mail until 23 April 2011. When the four weekday public holidays are considered the Notice of Appeal should have been filed by 25 May 2011. However, the Notice of Appeal was not filed until 15 March 2012 (WC/2012/100) i.e. some forty-three (43) weeks out of time or some two hundred (200) plus business days out of time. [2] At the time of injury the Applicant was employed by Tabcorp Holdings Ltd (Employer) at the Treasury Casino and Hotel and had been employed by the Employer since 11 February 2001. The Applicant has not worked at the Treasury Casino and Hotel since 22 October 2010 i.e. the date of her injury. Relevant Legislation [3] Section 550(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 (Act) provides as follows: "(1) The appeal must be made - (a) if the appeal is about a review decision - within 20 business days after the appellant receives the notice of the review decision; …". Power to Extend Time [4] In McQuade and Hayes v WorkCover Queensland1 Hall P. held that the then s. 499 of the Act was directory rather than mandatory and that there existed a power to extend time for the filing of an appeal against a Q-COMP decision. Discretion [5] The exercise of the discretion was also considered in McQuade and Hayes v WorkCover Queensland2 in the following terms: "But the presence or absence of a power to grant an extension of time is not decisive. A conclusion that subsection (6) is directory rather than mandatory does not mean that subsection (6) does not need to be complied with. The conclusion that subsection (6) is directory only still requires compliance in substance, compare Scurr v Brisbane City Council3. One can understand why a legislature would support a directory provision with a power to extend time. Exercise of a discretion to extend time is more ruly exercise than testing for substantial performance.". [6] In Taylor v Q-COMP4 the following comments by Fisher C. are also apposite: "The starting point in any extension of time application is that the time limit prescribed by the legislation must be respected. Time limits represent the view of Parliament that justice requires disputes be settled as quickly as possible; they provide certainty about prospects of litigation and ensure relevant evidence is not lost. An extension of time is an exception to the statutory time limit. Although the Commission has the power to extend time the onus rests with Mr Taylor to show that his case is worthy of an exception being made such that the justice of the case requires an extension of time be granted.". 1 McQuade and Hayes v WorkCover Queensland (2000) 165 QGIG 126 2 Ibid 3 Scurr v Brisbane City Council (1973) 133 CLR 242 at 255 4 Taylor v Q-COMP (2008) 188 QGIG 298 -- 1 of 12 -- 2 [7] In Carmody v WorkCover Queensland5 de Jersey P outlined the following relevant considerations in a determination of whether to exercise the Commission's discretion to extend time:  the extent of the delay;  the explanation for the delay;  prejudice to the Respondent;  prejudice to the Applicant;  enthusiasm for prosecuting the Appeal; and  merits of the Appeal. [8] There is also authority for the fact that, in beneficial legislation such as the Act, applications to extend time should be "approached with generosity of spirit": see Hetmanska v Q-COMP6. [9] In the more recent authority of Steven Pearce v Q-COMP7 Hall P. stated that it was now appropriate to abandon the language of "extension of time" and to assert that the time limit at s. 550(1)(a) of the Act may be "waived on the grounds of substantial compliance or special circumstance". In that case the President endorsed the finding at first instance that the merits of an appeal were significant in determining whether a time limit should be waived or otherwise. [10] The term "substantial compliance" was discussed by Hall P. in Australian Meat Holdings Pty Ltd v Q-COMP8 in the following terms: "In my view, to adopt the language of Kirby J in MYT Engineering Pty Ltd v Mulcon Pty Ltd9, the practical effect of what has been done substantially equates with the practical effect which s. 542 seeks to achieve". Brief History of Claim [11] The Applicant lodged an application for workers' compensation for anxiety and depression arising from her employment with the Employer on or about 26 October 2010. Tabcorp Holdings Ltd is a Self-insurer and it rejected the Applicant's claim in its Reasons for Decision forwarded under a covering letter dated 16 December 2010. The Self-insurer's Claims Manager (Qld), Jessica DeGroot, and the Self Insurance Manager, Ian Tanner, were satisfied that the Applicant was a "worker" and that she had developed a psychological condition which amounted to "personal injury". They were also satisfied that the Applicant's employment with Treasury Casino and Hotel was a "contributing factor" to the onset of her condition. The Applicant's application for workers' compensation was however rejected because of a finding that the issues raised by the Applicant constituted reasonable management action taken in a reasonable way and that therefore her claim was excluded from the definition of "injury" in the Act. Prior to this the Employer had arranged for the Applicant to be medically examined by Professor Harvey Whiteford, Psychiatrist, who provided a medical report dated 15 November 2010. [12] The Applicant then sought review of that decision to Q-COMP who confirmed the decision of the Self-insurer in its Reasons for Decision dated 18 April 2011. Because of her medical condition, the Applicant sought the assistance of two work colleagues to write and lodge her application for review to Q-COMP. The Notice of Appeal in WC/2012/100 is against that decision. In order for the Applicant to proceed with that Notice of Appeal she must obtain a waiver of the time limit provided for in s. 550(1)(a) of the Act. [13] In that Q-COMP Reasons for Decision at page 10 under the heading "Appeal rights" the Applicant was informed as follows: "If either party disagrees with this decision then either party may appeal to the Queensland Industrial Relations Commission in Brisbane. Either party has 20 business days from the date of receipt of this decision in which to lodge an appeal. A copy of the notice lodged with the Commission must also be served on Q-COMP within 10 business days.". Evidence [14] In support of her application, the Applicant relied upon her Affidavit filed on 1 June 2011 (Exhibit 1) together with the evidence of Tina Vievers, the Solicitor with conduct of her case from McCowans Solicitors (Exhibits 2 5 Carmody v WorkCover Queensland (1998) 157 QGIG 119 6 Hetmanska v Q-COMP (2006) 183 QGIG 917 7 Steven Pearce v Q-COMP (C/2010/64) - Decision - <http://www.qirc.qld.gov.au> 8 Australian Meat Holdings Pty Ltd v Q-COMP (C/2007/15) 9 MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 360 at paras [56] to [58] -- 2 of 12 -- 3 and 4). Both the Applicant and Ms Vievers were cross-examined. Q-COMP relied upon the Affidavit of Kia Cameron, the Appeals Officer with carriage and conduct of this appeal on behalf of Q-COMP. Extent of the Delay [15] The delay in filing the Notice of Appeal is substantial being 42 weeks or 200 plus business days. Mr Sapsford, Counsel for Q-COMP, referred the Commission to the decision of Q-COMP v Feneley10 (Feneley's Case) where the delay was some 18 months, where Hall P. stated as follows: "Only in an exceptional case and to avoid a plain injustice, should indulgence be granted after such period of time …". [16] The delay in this case whilst substantial is not as great as the 18 months in Feneley's Case. Explanation for the Delay [17] Delay prior to 20 December 2011: Since incurring her injury on or about 22 October 2010 the Applicant has consulted Dr Amanda Taylor, Consultant Psychiatrist, on eight occasions between 11 May 2011 and 1 February 2012. In addition she consulted with Dr Sarah Stirling, Clinical Psychologist, on three occasions commencing 17 November 2010 and subsequently consulted with Dr Claire Hitchings, Clinical Psychologist, on forty-two occasions between 22 December 2010 and 25 May 2012. The Applicant continued to be medicated for her adjustment disorder. It was the Applicant's evidence that she visited Dr Gunasena, her General Medical Practitioner, at least once a month in order to obtain medical certificates and in respect of other medical conditions but that in terms of her psychological illness she consulted Dr Hitchings at least twice per month and Dr Taylor when prescriptions for medication are required, although she did state that Dr Gunasena was now authorised to prescribe her medications. [18] It was evident when the Applicant was giving evidence in this proceeding (some nineteen months after incurring her psychiatric injury) that she was still suffering substantial distress when dealing with matters the subject of her workers' compensation claim. In terms of her psychiatric condition the following is noted:  having lodged a complaint of harassment and bullying at work against Karen Toscano, the Employer's then General Manager of the Food and Beverage Department, the Employer, on 12 October 2010, arranged for an investigation of the Applicant's allegations against Ms Toscano and a report was provided to Human Resources. The Applicant was advised of the outcome of that investigation on 22 October 2010. On that day the Applicant attempted self-harm whilst at work and was taken to the Royal Brisbane Hospital Mental Health Unit;  on 25 October 2010 the Applicant's General Medical Practitioner, Dr Gunasena, issued the Applicant with a workers' compensation medical certificate which indicated a diagnosis of "anxiety/depression" due to "harassment and bullying at work". It is to be noted that Dr Gunasena had noted on 29 September 2010 a report by the Applicant of an assault by Ms Toscano;  the Applicant was examined by Professor Harvey Whiteford, Psychiatrist, on 11 November 2010 at the Self-insurer's request and he provided a medical report dated 15 November 2010 which diagnosed the Applicant as suffering from an "adjustment disorder";  at some point prior to 14 March 2011 the Applicant requested Adam Lucas, the Employer Injury Management and Safety Coordinator, not to contact her directly as it was triggering further stress for her and asked that any correspondence be communicated to her through either her Psychologist or Medical Practitioner. There is evidence that Mr Lucas passed this request on to various Employer contacts;  despite this request, on 15 April 2011 the Applicant attended the Emergency Department at the Mater Hospital following a "panic attack" triggered by opening a work e-mail;  on 21 April 2011 the Applicant received the Q-COMP decision via e-mail. Her evidence is that she did not open the e-mail until a couple of days later. After opening the e-mail and reading some of the Q-COMP decision the Applicant said that she was devastated by the decision and had another "panic attack" and again attempted "self-harm". On this occasion the Police were called and the Applicant was admitted to the Princess Alexandra Hospital Mental Health Unit; and 10 Q-COMP v Feneley (C/2010/37) - Decision - <http://www.qirc.qld.gov.au> -- 3 of 12 -- 4  on 18 May 2011 the Applicant again consulted Dr Hitchings. It is noted in her clinical notes that Dr Hitchings discussed the Q-COMP decision with the Applicant although no reference was made to the time limitation period although it is noted that "Q-COMP review rejected but positives - content better reflect what happened". Her clinical notes of that consultation (Exhibit 5) recorded the fact that the Applicant had been admitted to the Mental Health ward at the Princess Alexandra Hospital on 23 April 2011, that the Applicant had "nearly hurt" herself and that later she had "suicidal thoughts". It was further reported that then the Applicant "felt better – as went to police to report assault @ work" that she then "stopped worrying about work" that she had "not worried since" and further that she planned "to take legal action when feeling better". It was the Applicant's understanding of Dr Hitchings advice to her around this time that her health would deteriorate if she were to take legal action as Dr Hitchings could no longer help her. There is a report from Dr Hitchings to Dr Gunasena dated 20 May 2011 where Dr Hitchings reported on her consultation with the Applicant on 18 May 2011 as follows: "During our interview session on 18.05.2011 Grace reported some functional improvement, including an ability to go shopping on her own, increased behavioural activation generally, and spending more time on her own without Lara. She also reported a reduction in worrying about work related matters. She attributed these improvements to an increase in medication, decreased focus on work problems, and the fact that in April she reported the alleged work assault to the police. Despite these improvements Grace reported an incident on 23 rd April, in which she became very distressed, held a knife while holding Lara, and told Jamie she wanted to kill herself and Lara. She said that Jamie took the knife and called the police and she was subsequently taken to the PAH for assessment.". [19] The appeal period expired somewhere between 19 May 2011 and 25 May 2011. When the Applicant commenced reading the Q-COMP Reasons for Decision she said that she was "devastated", she "suffered a panic attack" and that she did not feel "mentally capable of doing anything with her case as I just wanted it over". Her evidence was that after she read the first few lines she "just couldn't read any more because I was telling the truth and they didn't believe me". It is noted that the first page of the Q-COMP Reasons for Decision stated that "Q-COMP has confirmed the decision of the Insurer to reject your application for compensation". [20] Later in cross-examination the Applicant said that she did read some of the decision but not all of it. What is clear is that the Applicant, having read some of the Q-COMP Reasons for Decision, suffered a panic attack, broke down and was transported by Police to the Princess Alexandra Hospital and treated at the Hospital on that day. [21] The Applicant admitted reading enough of the Q-COMP Reasons for Decision to know that Q-Comp had also rejected her claim. Having witnessed the Applicant giving evidence and the stress it caused her to have to deal with the rejection of her claim, I have no reason to disbelieve her evidence that she did not read the whole of the decision on 23 April 2011. In addition, upon reading some of the Q-COMP Reasons for Decision, the Applicant suffered a panic attack and was ultimately transported to Hospital by Police. [22] I also can well understand that, having suffered a panic attack when she first read part of the Q-COMP Reasons for Decision, the Applicant did not go back at a later time and re-read the decision. I also accept the Applicant's evidence that she did not read the section of the Reasons for Decision which outlined her appeal rights. Thus I find that the Applicant had no knowledge at this time that there was a twenty business day time limit within which to lodge any appeal. Thus, at the time when the Applicant should have filed her Notice of Appeal, I find that she was not aware of the twenty business day time limitation period. [23] It should also be noted that on 5 May 2011 the Applicant telephoned Trilby Misso Lawyers seeking their assistance, on a speculative basis, in respect of her claim. Trilby Misso Lawyers forwarded correspondence dated 5 May 2011 to the Applicant in the following terms: "We thank you for your enquiry. However, on this occasion we are unable to act for you on a speculative basis. Please note that our decision to decline your instructions in this matter should not in any way be interpreted as an opinion by us as to your prospects of success in a claim. We offer no opinion on your prospects of success. We strongly suggest you seek a second opinion if you wish to pursue the matter. We would like to stress the fact that time limits apply to most legal claims in Queensland. In most personal injury actions, the limitation period is three (3) years from the date of the accident/incident. If you fail to bring an action in the Court you will lose all rights in relation to your matter. …". -- 4 of 12 -- 5 [24] Whilst I acknowledge that Trilby Misso Lawyers were advising the Applicant in respect of a personal injury claim when their correspondence referred to a three year time limitation period, it was clear that the Applicant did not realise the difference between her workers' compensation claim and a personal injury claim. So at this time the Applicant had formed the view that she had a three (3) year period from 22 October 2010 (the date of her injury) in which to progress her matter. [25] The next issue for the Applicant was that, despite requests that no correspondence be forwarded directly to her, the Employer sent correspondence, received by the Applicant on 2 June 2011, which invited her to make submissions as to why her employment with the Employer should be continued. The receipt of this correspondence caused the Applicant to again feel suicidal and she made contact with the Mental Health Hotline on that day. It is apparent that this correspondence was sent after the appeal period had expired however there is no mention made of the expiration of the appeal period. [26] On the following day, 3 June 2011, the Applicant made telephone contact with Mullins Law in an attempt to gain assistance with responding to that Employer's correspondence. On the same day the Applicant received an e-mail from Mullins Law requesting that monies be placed in their trust account prior to them commencing to act for her. It was the Applicant's evidence that she did not have the funds to be able to engage Mullins Law. [27] Instead the Applicant herself corresponded with the Employer via e-mail on 7 June 2011 raising concerns about the Employer's correspondence of 2 June 2011. On this occasion she was assisted in the drafting of this correspondence by Amanda Pegg (her direct Manager at the Employer) and Antonio Pires (another employee). Both of these individuals had previously assisted the Applicant prepare her application to Q-COMP seeking a review of the Self-insurer's decision. It is to be noted that when the Applicant had become aware of specific time lines she complied with them e.g. application to Q-COMP to review the Self-insurer's decision and the 4.00p.m. on 9 June 2011 deadline to respond to the Employer's correspondence of 2 June 2011. [28] Following receipt of the Applicant's correspondence, Louise Marshall, the Employer's Executive General Manager, Human Resources, wrote to the Applicant in correspondence dated 17 June 2011. In that correspondence Ms Marshall noted that she was "extremely concerned about" the Applicant following a brief telephone call with her on 11 June 2011 noting that "[i]t is obvious that the workplace matters you have raised are very upsetting for you" and asking the Applicant to discuss with her treating medical practitioners a means of communicating with her that would minimise the impact on her personally. It is also of note that Ms Marshall had sought out the Applicant's next of kin on the Employer files following her conversation with the Applicant on 11 June 2011. On finding that no such details were available Ms Marshall asked the Applicant to provide her with contact details of her next of kin. It is evident from Ms Marshall's correspondence that she became very concerned about the manner in which the issue was affecting the Applicant at this time. Ms Marshall then met with the Applicant on 23 June 2011. [29] Other issues of note are as follows:  on 11 June 2011 Dr Gunasena noted that the Applicant was "disturbed due to the discussion with work related thing";  on 19 August 2011 Dr Hitchings, in her clinical notes, reported stress associated with responding to the Employer's letter regarding termination;  on 10 August 2011 the Employer commenced to pay the Applicant's medical expenses including her psychiatric care. The Employer was continuing to pay such expenses as at the date of hearing;  On 17 August 2011 the Applicant sent the following text message to Ms Marshall: "After 10+ years of loyal service, working my arse off, putting my work before my family to get treated like shit, to get physically assaulted, bullied and to be a victim and to be treated as if I am the guilty person is not fair. I am struggling to see any purpose in life. I used up all my savings to pay for medical treatment for an illness contributed by Treasury and they wiped their hands of any wrong doing, it is not fair I have to sell my house, and start selling personal stuff just to be able to pay my bills cause AMP doesn't provide enough for everything and then they want me to pay money to give them medical reports. It is not fair that it is being [sic] so long to get my matter resolved and only to know that the same person who victimised me is still treats [sic] people like shit and gets away with it. Life is just not fair and sometimes this life is better ended because the pain is too much for me to handle.".  on 1 September 2011 the Employer notified the Applicant that it had engaged Ken Martin to independently investigate her complaints i.e. the complaints particularised in the Applicant's application -- 5 of 12 -- 6 for compensation. The Applicant was interviewed by Mr Martin on 5 September 2011 and provided him with further information on 7 September 2011;  there is a file note in Exhibit 3 which purports to be a file note from Ms Marshall of a telephone conversation with the Applicant on 2 September 2011. In that file note Ms Marshall records that the Applicant "has taken legal advice", that "she is not sure [sic] should like to proceed" and that her "lawyer has told her she can re-open the Q-COMP Case" and that the Applicant "didn't know what to do". Ms Marshall did not give evidence however whilst the Applicant in cross-examination said she could not recall the conversation, she could recall Ms Marshall saying that she did not think it would be appropriate for her to advise the Applicant on such matters. The Applicant again confirmed that it was her understanding at this time that she had three years within which to re-open her case;  on 20 September 2011 the Applicant commenced an Anxiety Management Program at the Toowong Private Hospital which concluded on 29 September 2011;  on 22 September 2011 Dr Taylor contacted Dr Gunasena and the clinical notes reported that the Applicant was "severely depressed, going up and down";  on 27 October 2011 Ms Marshall met with the Applicant and advised her that Ms Toscano's employment had been terminated for bullying and harassment following the investigation by Mr Martin;  on 4 November 2011 the Applicant sought a copy of Mr Martin's report and was advised by Ms Marshall on 5 November 2011 that she could not provide the report as it contained private and confidential information;  on 22 November 2011 Ms Marshall met with the Applicant and personally handed her a letter summarising the findings of Mr Martin. That correspondence stated that Mr Martin found that:  it was more than likely that the Applicant had been harassed by Ms Toscano;  it was more than likely that the Applicant had been physically assaulted by Ms Toscano; and  there was a partial lack of management support in the workplace;  the Applicant consulted with Dr Hitchings on both 23 and 28 November 2011;  in a telephone conversation with Ms Marshall on 6 December 2011 it was the Applicant's understanding that:  Ms Marshall offered her a lump sum settlement equivalent to one year's salary which would approximate to $47,000;  any such offer was conditional upon the Applicant signing a confidentiality agreement;  that one year's salary was the standard settlement offer; and  that the decision was final and that it could not be changed. The Applicant said that she became upset during this conversation and that she advised Ms Marshall that she would seek legal advice and then she hung up on Ms Marshall. The Applicant said that she was so upset following the telephone call that she again attempted self harm. She tried to call Dr Hitchings but was unable to reach her. Dr Hitchings did however return her call later that day and had a consultation with the Applicant over the telephone;  there is a document in Exhibit 3 which purports to be a file note of Ms Marshall of the abovementioned conversation. In that file note Ms Marshall noted that the Applicant sounded tearful and she asked the Applicant if she was okay and the Applicant acknowledged that "this was upsetting for her". Ms Marshall's note refers to the Applicant stating that she would put the matter in the "hands of my lawyers" and that the Applicant told her that a lawyer had advised her that "she can re-open" her workers' compensation claim. Ms Marshall did not give evidence in this proceeding however the Applicant in cross-examination agreed that she had a conversation with Ms Marshall where she told Ms Marshall that a lawyer had told her that she would re-open her workers' compensation claim. The Applicant recalled this conversation as occurring on the day that she was offered the settlement; -- 6 of 12 -- 7  Ms Marshall became so concerned about the Applicant's well being following this conversation that she sent the Applicant a text message and continued to try and contact her via telephone throughout the day however the Applicant did not answer her calls;  the Applicant consulted with both Dr Taylor and Dr Hitchings on 7 December 2011 and consulted with Dr Hitchings on 13 and 20 December 2011; and  on 20 December 2011 the Applicant instructed McCowan's Solicitors to act on her behalf. [30] The report of Mr Martin is found at attachment GMB18 to Exhibit 1. It is a twenty-five page extensive report. At the end of that report Mr Martin outlines his qualifications which included:  thirty-two years in the Queensland Police Service, the majority of which was spent as a detective investigating serious crimes and major investigations;  he was the inaugural Director of Safety and Security for the Conrad Treasury Casino; and  in 1997 he became the Corporate Investigator for both Treasury and Conrad Jupiter's Casinos answering directly to the Hilton Corporation in the United States. He retired from that position in 2005. [31] I list the qualifications of Mr Martin as he is very critical in his report of the investigation of the Applicant's workers' compensation claim undertaken by the Self-insurer. [32] Delay after 20 December 2011: Ms Vievers confirmed that the Applicant instructed her to act on her behalf on 20 December 2011 and that on receipt of those instructions she was provided with the correspondence received from Ms Marshall dated 22 November 2011 which contained a summary of the outcome of Mr Martin's investigation. The Applicant was not in possession of the actual report at that time. It was at or about this time that the Applicant also advised Ms Vievers that she had received an offer from the Employer of a lump sum settlement given the findings of Mr Martin. The Applicant specifically asked that Ms Vievers advise her on the prospects of success on her appeal against the Q-COMP decision in order that she could properly consider the settlement offer made by Ms Marshall. [33] On 23 December 2011 the Applicant was advised by Ms Vievers that she needed to appeal the decision to reject her workers' compensation claim in the Queensland Industrial Relations Commission (Commission) before she could bring a claim against her Employer. At this time the Applicant was further advised that:  McCowans Solicitors would be closed for the Christmas period and would re-open on 9 January 2012;  the Commission would be closed over the Christmas period;  Ms Vievers would need to seek Counsel's advice as to whether or not the Applicant had any prospects of success in an appeal prior to responding to the Employer about the offer of a lump sum payment; and  Ms Vievers would need Mr Martin's report before considering the Applicant's prospects of success on appeal. [34] Ms Vievers said that she was concerned about jeopardising the Employer's offer and encouraged the Applicant to request a copy of Mr Martin's report from the Employer. It was Ms Vievers' opinion that any contact with the Applicant about her matter caused the Applicant distress at this time. On 10 January 2012 Ms Vievers again contacted the Applicant and asked her to attend to a number of matters so that Counsel could properly advise her on her prospects of success e.g. provide a chronology of events and obtain a copy of Mr Martin's report. [35] On 30 January 2012 Ms Vievers sent a brief to Counsel to advise on the prospects of success on an appeal with the limited material she had at that time i.e. the chronology prepared by the Applicant and Ms Marshall's correspondence. On or about 9 March 2012 Ms Vievers received Counsel's advice which recommended that:  a notice of appeal be filed irrespective of the Employer offer; and  that Ms Vievers undertake certain steps to obtain further information. [36] As a result of Counsel's advice Ms Vievers received instructions from the Applicant to appeal the Q-COMP decision. The Notice of Appeal was filed on 15 March 2012 in the absence of any advice on the merits of the Applicant's case. After lodging the Notice of Appeal Ms Vievers obtained the following information: -- 7 of 12 -- 8  the medical records from Dr Stirling, Psychologist, on 8 May 2012;  the medical records of Dr Taylor, Psychiatrist, on 21 May 2012;  following the issuing of a Notice to Produce, the Applicant's personnel file which included the investigation report of Mr Martin on 29 May 2012;  the medical file of Dr Hitchings, Psychologist on or about 31 May 2012;  the medical records of the Toowong Private Hospital on or about 5 June 2012 in relation to an anxiety management program undertaken by the Applicant in or about September 2011; and  a medical report from Dr Taylor, Psychiatrist, on or about 5 June 2012. [37] In cross-examination Ms Vievers was questioned as to why she did not simply lodge a notice of appeal on or about 20 December 2011 when she obtained the instructions from the Applicant. Her reasons for not doing so were as follows:  the Applicant was clearly upset about everything that had happened to her although she formed the view that the Applicant was well enough to provide her with instructions. It is noted that it was the Applicant's evidence that all her dealings with her Solicitors were not in person until just recently when she first met Ms Vievers;  the Applicant did not give her those instructions because she was then having discussions with Ms Marshall in relation to an offer by Ms Marshall for a lump sum payment of a year's salary (approximately $47,000) and the Applicant did not want to jeopardise those discussions without knowing her prospects of success on an appeal. The Applicant was not sure at that time what she wanted to do;  she did not have adequate material in order to advise the Applicant of her prospects of success on an appeal (all she had was the correspondence from Ms Marshall) and she did not want to risk the $47,000 potential payout. She could not provide the Applicant with the advice she was seeking because of the limited documentation in her possession;  the summary of Mr Martin's investigation report was not enough for her to advise the Applicant on the prospects of an appeal; and  the Applicant's request of the Employer to obtain a copy of Mr Martin's report was rejected on the basis that the report contained confidential information. It was not until after the filing of the Notice of Appeal and the obtaining of a Notice to Produce that Ms Vievers was able to obtain a copy of Mr Martin's report. The copy of the report provided to the Commission under the Notice to Produce was undated and unsigned and did not contain any of the attachments referred to in the report. [38] Ms Cameron's Affidavit introduced further material including a file note from Ms Marshall dated 6 December 2011 of a telephone conversation she had with the Applicant on that day which appeared to suggest that there was no actual settlement offer made to the Applicant. Ms Marshall did not give evidence. However the file note appeared to confirm Ms Vievers evidence that the Applicant got very distressed when dealing with this issue. Prejudice to the Applicant [39] The prejudice to the Applicant should this application not be granted is obvious i.e. she will be precluded from further prosecuting her appeal which in turn would eliminate any right to compensation for the Applicant. This is in circumstances where, according to the file note of Ms Marshall, there was no settlement offer available to the Applicant. Prejudice to the Respondent [40] Should the application be granted then the substantive hearing will involve a consideration of "reasonable management action taken in a reasonable way" as provided for in s. 32(5)(a) of the Act. Given that the Applicant has alleged that Ms Toscano was the person who bullied, harassed and assaulted her, Ms Toscano will be an essential witness for Q-COMP in defending the Notice of Appeal. As has been noted previously Ms Toscano was dismissed from employment with the Employer in or about October 2011 following the investigation undertaken by Mr Martin. -- 8 of 12 -- 9 [41] I acknowledge that, in those circumstances, Ms Toscano will be a reluctant witness. In this case however Q-COMP has the benefit of two investigations into the Applicant's complaints. The first of those investigations was undertaken by Ms DeGroot and Mr Tanner of the Self-insurer when considering the Applicant's initial claim for workers' compensation. According to Mr Martin's report Ms DeGroot and Mr Tanner, in rejecting the Applicant's claim, stated that "[s]ignificant weight has been placed on the evidence of external contractors Stephen Mills and William Moreland due to their independence in the matter". When Mr Martin reviewed the Self-insurer's file he found file notes which indicated that Ms DeGroot and Mr Tanner came to a decision to reject the Applicant's application prior to receiving that evidence from Mr Mills and Mr Moreland. It is also of interest to note that Mr Martin, when considering this information together with other anomalies in the Self- insurer's report, concluded that these "facts certainly test the integrity of the SIU investigation". [42] It is further noted in Mr Martin's report that the Self-insurer outsourced witness interview and statement taking to Austrace Investigation Pty Limited with David Thomas conducting certain interviews. It is apparent from Mr Martin's report that the Employer and/or Q-COMP have at least one statement from Ms Toscano e.g. on page 21 of the report there is the following comment from Mr Thomas of Austrace on Ms Toscano: "The witness provided the information contained within her statement in an apparently cooperative manner, she appeared truthful, reliable there was no doubt as to her integrity.". [43] In addition to having at least one statement from Ms Toscano and the report of the investigation undertaken by Ms DeGroot and Mr Tanner, Q-COMP also has the benefit of Mr Martin's report. A lot of the information referred to in Mr Martin's report came from file notes held by the Self-insurer. It is also to be noted that whilst Ms Toscano is no longer an employee of the Employer, Q-COMP has been able to locate her. Further, the Employer has, since 11 August 2011, funded the Applicant's medical expenses and outlays and continues to do so. [44] In all of the circumstances I do not see Q-COMP suffering the same prejudice as that outlined by Commissioner Fisher in Taylor v Q-COMP11. Whilst recollections may be affected there appears to be substantial documentation available to enable witnesses to refresh their memory. Enthusiasm for Prosecuting the Appeal [45] On this aspect Q-COMP submitted that the Applicant indicated a "committed, enthusiastic and somewhat relentless pursuit of her rights against her employer while at the same time showing a complete absence of action taken in relation to this Appeal". In this regard Q-COMP relied upon the Applicant's e-mail of 7 June 2011 responding to the Employer correspondence dated 2 June 2011. It was submitted that this document revealed "an intelligent and comprehensive analysis of the matters alleged by the Applicant" and that it did not support the "allegation by the Applicant that she was 'unable to mentally cope with the legal process'". Accordingly Q-COMP submitted that the Applicant elected to pursue whatever rights she had industrially against her Employer but chose not to pursue the avenue of an appeal against the Q-COMP decision. In making this submission Q-COMP failed to account for the fact that Ms Pegg and Mr Pires provided the Applicant with assistance in making this response to the Employer. [46] The Applicant submitted that given the Applicant's medical condition, her enthusiasm for prosecuting the appeal was more than satisfactory given the initial investigation report and the findings which did not support her claim. The fact that the Applicant was reminded on 5 May 2011 in the correspondence from Trilby Misso Lawyers that she had a three (3) year time limitation period from the date of the accident/incident should also be considered. [47] In the absence of Mr Martin's report it is doubtful that any firm of solicitors would have acted for the Applicant on a speculative basis in an appeal against the Q-COMP decision. The Applicant obviously did not have sufficient finances to afford to pay for a firm of solicitors to act for her. Given the reaction she had to giving evidence in this proceeding where she ran from the witness box and the hearing was delayed so that her mother could console her and she was able to have a telephone consultation with Dr Hitchings, it is exceedingly doubtful that the Applicant could have handled appealing the decision herself. [48] I have noted previously that where the Applicant was aware of a time limitation period she appeared to respond within the stated time. I have already accepted her evidence that she was not, until 20 December 2011, aware of the twenty day time limitation period for commencing an appeal against the Q-COMP decision. [49] The real issue is the delay between 20 December 2011 and 15 March 2012 when the Notice of Appeal was filed. Whilst in hindsight it would have been prudent for the Applicant's Solicitors to have lodged the Notice of Appeal shortly after obtaining instructions to act for the Applicant some extenuating circumstances existed. These included: 11 Taylor v Q-COMP [2008] 188 QGIG 298 -- 9 of 12 -- 10  the Applicant believed that on 6 December 2011 she had received an offer of settlement from Ms Marshall which involved the payment of one year's salary or approximately $47,000. The Applicant wanted to know her prospects of success on a workers' compensation appeal before initiating any such appeal and perhaps foregoing any chance of receiving the $47,000. In the circumstances in which the Applicant found herself in December 2011 an offer of $47,000 would have been substantial. She had not worked since October 2010. I accept that it was prudent on her part to obtain some advice on her prospects of success before rejecting the offer from Ms Marshall. I note the Q-COMP submission that the actual filing of a notice of appeal does no more than protect the interests of the worker and ensures that the time limitation period is acknowledged and that costs do not start to be incurred at that point. However it was not the issue of mounting costs that caused the Applicant concern. Rather it was the effect of filing a notice of appeal, which would have come to the attention of the Employer via the Self- insurer, and losing what she understood to be an offer to settle her matter; and  the evidence of Ms Vievers that any contact she had with the Applicant caused the Applicant distress. The notes of Ms Marshall following her telephone conversation with the Applicant on 6 December 2011 appear to confirm the level of distress exhibited by the Applicant around this time. Whilst Ms Vievers sought material from the Applicant during this period it appeared that the only assistance that the Applicant provided (other than the correspondence from Ms Marshall) was a chronology of events. It is apparent from all of the evidence that the Applicant has suffered greatly when she has had to deal with these issues. I think the task for Ms Vievers to obtain the necessary instructions to file an appeal would have been exceedingly difficult during this period. [50] On or about 30 January 2012 Ms Vievers sent a brief to Counsel to advise on prospects with the scant material she had been provided with by the Applicant. That advice was received on 9 March 2012 and the Notice of Appeal was filed on 15 March 2012. In all of the circumstances I do not find any lack of enthusiasm on the part of the Applicant for prosecuting this appeal. Merits of the Appeal [51] Earlier in this decision I noted the qualifications of Mr Martin. He undertook an investigation of the Applicant's complaints and in doing so formed the view that the questions he needed to answer were the following:  was the Applicant bullied and harassed by Ms Toscano?  was the Applicant assaulted by Ms Toscano at Treasury Casino on 28 September 2010? and  was there a lack of managerial support for the Applicant? [52] In answering these questions Mr Martin indicated that he had read and re-read the Self-insurer's file, the Q-COMP appeal findings, all material supplied by Ms Marshall, human resource files of past and former employees of Treasury Casino and interviewed several former and current Casino employees. Mr Martin was also quite critical of the initial report undertaken for the Self-insurer by Ms DeGroot and Mr Tanner. [53] Q-COMP submitted that the report by Mr Martin did not resolve the issues in dispute and that, at any hearing of the substantive appeal the following issues would arise:  that two of the factors which contributed to the Applicant's psychiatric condition (the alleged bullying by Ms Toscano and the alleged assault by Ms Toscano) would be the subject of conflicting evidence given by the Applicant and Ms Toscano and thus the outcome was far from predictable;  that there existed little or no independent evidence capable of resolving the issue of the alleged assault; and  that the findings of the investigation undertaken by Mr Martin did not address the question of "reasonable management action taken in a reasonable way" which would be the issue for determination at any hearing. [54] Q-COMP thus submitted that there existed no compelling evidence to indicate great merit in the Applicant's appeal. [55] The evidence before me is that, following Mr Martin's findings of his investigation, the Employer terminated Ms Toscano's employment. Ms Toscano was the Respondent's General Manager of the Food and Beverage Department. The Applicant had commenced employment with the Employer as a casual food and beverage -- 10 of 12 -- 11 officer and had been promoted to work in the Finance Department. Ms Toscano was responsible for the implementation of a new system known as Micros and she formed a working party in connection with this implementation. Originally another employee from the Finance Department was on the working party but withdrew from it following what Mr Martin described as repeated clashes between that employee and Ms Toscano. The Applicant was then nominated as the Finance Department nominee on the working party. It is thus clear that Ms Toscano was part of management insofar as her dealings with the Applicant were concerned. It is also noted that Mr Martin did make the following comments in his report: "On the balance of probabilities I would agree with BORG in that the behaviour of TOSCANO has gone beyond that of 'reasonable management action'". and "Putting aside BORG's sensitive and emotional personality and looking at others that have commented upon this issue then there would appear to be ample corroboration of TOSCANO'S behaviour of exceeding that of 'reasonable management action' ". and "It is apparent that TOSCANO had a mind set regarding the POS team and it's members and I refer to a statement made by her to the Austrace Investigator and I quote: 'I learnt at a very early stage here at Treasury that the PSO office is a very toxic environment' ". [56] Thus on any hearing of the substantive appeal, if the Commission were to make findings similar to that of Mr Martin (i.e. that it is more than likely that Ms Toscano bullied and harassed the Applicant, that it was more than likely that Ms Toscano assaulted the Applicant albeit that it was a minor assault and that there were "shortcomings of management" that had been a contributing factor to the whole of the circumstances surrounding the Applicant's case) then the Applicant's merits on the appeal would seem more than reasonable. Mr Martin's report appeared to differ significantly from that relied upon by Q-COMP when it made its decision to reject the Applicant's claim. Conclusion [57] The object of the Act in s. 5 is the establishment of a workers' compensation scheme which provides benefits for workers who sustain injury in their employment. With this in mind applications such as this to extend time should be "approached with generosity of spirit": see Hetmmanska v Q-COMP12. [58] Whilst Q-COMP submitted that the principles outlined by Magistrate Lee in Kidd v Q-COMP13 were apposite insofar as the Applicant made no effort to promote the prosecution of her Appeal. She did not make enquiries of Q-COMP, the Commission or solicitors in a timely fashion and did not seek the assistance of those who had helped her in the preparation of her application for review to Q-COMP. The facts in Kidd are distinguishable from the facts in the present case. When Mr Kidd's application for compensation was rejected by the self-insurer he was receiving advice from both his union and the union's solicitors. With that rejection he was advised by his solicitors to obtain a further medical report. He made no attempt to obtain such a report. There was also no dispute that Mr Kidd knew of the twenty business day time limit and the evidence was that he chose not to appeal the Q-COMP decision within the appropriate time period. In the present case I have found that the Applicant was not aware, until 20 December 2011, that there was a twenty business day time limitation period. Further, the Applicant kept the issues the subject of her workers' compensation claim before the Employer at least from 7 June 2011 until the present time. Given her serious psychiatric condition I was impressed with the actions taken by the Applicant throughout the later half of 2011. [59] Whilst I accept that the extent of the delay in the Applicant prosecuting this appeal is substantial, I have formed the view that special circumstances exist which warrant the waive of the time limit prescribed by s. 550(1)(a) of the Act: see Steven Pearce v. Q-COMP14. In so doing I have particularly taken account of the following matters:  the finding that the Applicant was unaware of the twenty business day time limit prior to 20 December 2011; 12 Hetmmanska v Q-COMP (2006) 183 QGIG 917 13 Kidd v Q-COMP (#36184/09) 14 Steven Pearce v. Q-COMP (C/2010/64) - Decision - <http://www.qirc.qld.gov.au> -- 11 of 12 -- 12  the distress suffered by the Applicant when dealing with matters the subject of her workers' compensation claim. In particular the distress suffered in giving Ms Vievers appropriate instructions after 20 December 2011;  the fact that the Applicant believed that she had been offered, on 6 December 2011, approximately $47,000 as a settlement sum which she did not want to jeopardise; and  the Applicant appeared to have reasonable prospects of substantiating her claim for workers' compensation, given the investigation conducted by Mr Martin, should the time period for lodging her Notice of Appeal be granted; [60] This is an exceptional case where justice requires that the time period be waived. To do otherwise would result in a plain injustice to the Applicant. In all the circumstances I find that the prejudice suffered by the Applicant should the time period not be waived together with the explanation for the delay and the merits of the Applicant's case far outweigh those factors militating against the waive i.e. the substantial time delay in filing her Notice of Appeal and any prejudice to Q-COMP. As such the time limit at s. 550(1)(a) of the Act is waived on the grounds of special circumstances and I extend the time for lodging the Notice of Appeal in WC/2012/100 to 15 March 2012. Costs [61] The Applicant has sought an order that Q-COMP pay her costs of and incidental to this application on the relevant scale. Q-COMP opposed any order for costs contending that the Applicant was seeking an indulgence from the Commission and, if that indulgence was granted, the Applicant should bear her own costs of the application. I agree with the Q-COMP submission. Had the Applicant filed her Notice of Appeal within the prescribed time then no application to extend the time for filing her Notice of Appeal would have been required. Having granted the Applicant the indulgence she has sought in this application it is for her to bear her costs of the application. [62] Order accordingly. D.M. LINNANE, Vice President. Hearing Details: 2012 June 7 Released: 9 August 2012 Appearances: Ms O. Perkiss of Counsel, instructed by McCowans Lawyers for the Applicant. Mr S. Sapsford of Counsel, directly instructed by Q-COMP. -- 12 of 12 --