Elliott v Q-COMP [2011] QIRC 28

CITATION: Michael James Elliott AND Q-COMP (WC/2010/124) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Michael James Elliott AND Q-COMP (WC/2010/124) COMMISSIONER FISHER 14 April 2011 Appeal against decision - Time limit for applying for compensation - Evidence - Injury to shoulder - Symptoms work-related - Date upon which entitlement to compensation arose - Whether application for compensation lodged within six months after the date upon which the entitlement to compensation arose - Whether reasonable cause can be established for appellant failing to lodge the application in time - Whether Commission should exercise discretion - Determined application lodged in excess of four months outside statutory time period - No reasonable explanation for non-disclosure of cause of injury - Commission not satisfied appellant has established a reasonable cause for failing to lodge application within time - Appeal dismissed. DECISION [1] Michael Elliott (the Appellant) has appealed against the decision of the Review Unit, Q-COMP (Q-COMP) dated 5 October 2010 which confirmed the decision of WorkCover Queensland to not waive the time for applying for compensation. The time limit was not waived because Mr Elliott was unable to establish a reasonable cause for not lodging the application for compensation within six months after the entitlement to compensation arose: s. 131 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). Evidence [2] The following witnesses gave evidence in these proceedings: For the Appellant • Michael Elliott; • Dr Raeeda Daoud, General Practitioner, Rosewood General Practice; and • Dr John Saba, General Practitioner, Rosewood General Practice. For Q-COMP • Peter Doyle, Director, Kynoona Pastoral Company Pty Ltd trading as Warwick Chaff Mill; and • Dr David Morgan, Orthopaedic Surgeon, Cunningham Specialist Centre, Ipswich. Background to the Application for Compensation [3] Mr Elliott commenced working at the Warwick Chaff Mill in March 2008 as a casual labourer and continued there until September 2008. His duties were packing bags of chaff onto pallets and then moving the pallets with a forklift. Mr Elliott said that the bags weighed 25kg and 30kg and he was expected to lift the bags onto the pallets by hand. The bags were stacked four to a row and about six or seven high. The final height of the stacked bags was approximately 2.2 metres. He would be expected to lift the bags onto his shoulder and throw them up onto the pallet. [4] Mr Elliott said that in August 2008 he noticed his shoulders were getting sore from lifting the bags of chaff. One day at work he told his employer, Mr Doyle, of his sore shoulders but he replied that "it was just old age". [5] Mr Doyle denied Mr Elliott had reported sore shoulders to him. He also disputed that Mr Elliott was required to stack bags seven high. He said that 90 per cent of the stacks would be five bags high. When they were stacked higher than this a forklift would be used. [6] Mr Elliott initially treated the soreness by applying Deep Heat to his shoulders at night and whilst at work. However, the soreness became so severe he decided to seek medical treatment. On 30 August 2008 Mr Elliott attended Dr Daoud. He said he told her that he had been experiencing pain in his shoulders for a few days as a result of lifting bags of chaff onto pallets. Dr Daoud examined his shoulders and found some tenderness. She provided him with a sample of pain relief medication and sent Mr Elliott for X-rays of his shoulders. Importantly, Dr Daoud denied that Mr Elliott said he had been experiencing pain for a few days. Her notes -- 1 of 6 -- 2 recorded that he had been suffering pain for a few months. She also was emphatic that Mr Elliott did not say that his symptoms were work-related. [7] Mr Elliott was given some work on the slasher after he complained about his shoulders. Mr Doyle said this work was given to Mr Elliott as work in the mill is seasonal and was winding down. It was not because of any complaint of a work-related injury. Other employees were dismissed. Mr Elliott ceased working at the Warwick Chaff Mill in September 2008. [8] Mr Doyle said Mr Elliott had contacted him once or twice after ceasing work seeking further employment. This was denied by Mr Elliott. Mr Doyle also said that Mr Elliott contacted him twice between October and November 2008 asking for a letter saying that he had injured his shoulder at work. Mr Doyle said he fobbed Mr Elliott off and did not supply a letter. Mr Elliott could not recall asking for such a letter. [9] In October 2008 Mr Elliott received some money for assisting his son to paint a neighbour's house. Mr Elliott said that he did not paint above shoulder height and did not assist with the sanding of the house. [10] Mr Elliott returned to Dr Daoud on 12 December 2008 with the results of the X-rays. Dr Daoud said that she would have expected Mr Elliott to return much sooner given she had only provided a sample of pain medication which would have lasted for four or five days. Dr Daoud advised that the X-rays showed signs of osteoarthritis in the right shoulder. As Mr Elliott was still complaining she prescribed further medication and organised an ultrasound and CT scan. She also provided Mr Elliott with a Centrelink medical certificate certifying his unfitness for work from 12 December 2008 until 15 January 2009. [11] On 19 December 2008 Mr Elliott returned to see Dr Daoud with the results of the ultrasound of both shoulders. Dr Daoud said the ultrasound did not show anything significant. She advised Mr Elliott to return for a scan when he needed it. [12] Mr Elliott returned on 16 January 2009 complaining of worsening pain in his right shoulder. Dr Daoud found tenderness in the acromioclavicular joint on the right side. She referred Mr Elliott to Dr Morgan and provided a further Centrelink medical certificate stating unfitness for work between 16 January 2009 and 16 February 2009. Dr Daoud next saw Mr Elliott on 12 February 2009 when he attended for an unrelated matter. However, he advised that he had an appointment to see Dr Morgan. Dr Daoud did not see Mr Elliott again. [13] Dr Daoud saw Mr Elliott five times between August 2008 and February 2009 but said that at no time had Mr Elliott mentioned that his shoulder soreness was as a result of his work in the Warwick Chaff Mill. [14] Mr Elliott consulted Dr Morgan on 16 February 2009. Mr Elliott said that during the consultation he advised Dr Morgan that his injury was as a result of lifting bags of chaff. [15] Dr Morgan said that Mr Elliott reported that he had been experiencing symptoms since October 2008. Dr Morgan's notes did not record that Mr Elliott reported that the injury was work-related. Normally when a patient advises a work-related injury has been suffered Dr Morgan conducts a longer form of consultation including investigating the mechanism of injury. In this case it was a brief consultation, with Mr Elliott presenting for diagnosis and treatment only. [16] Dr Morgan discussed therapeutic options with Mr Elliott. The first option was to see whether time, e.g. a period of six months, healed the injury. The next option was simple medical management such as pain killers and activity management. If, after a period, the problem did not improve then surgical intervention was possible. Dr Morgan said he left the decision as to the best treatment option to Mr Elliott. [17] Mr Elliott said that he decided to wait for six months to see whether his shoulders improved. When they did not Mr Elliott returned to the Rosewood General Practice and saw Dr Saba on 12 October 2009. [18] Dr Saba said Mr Elliott told him that he had injured both shoulders as a result of lifting 25kg and 30kg bags of chaff and stacking them on a pallet seven or eight high which was about 30 cm above head height. The pain was predominant in the right shoulder but was also being experienced in the left shoulder. Dr Saba said that Mr Elliott told him that the pain had developed about six weeks prior to his ceasing work and he had to leave the job because of his shoulder pain. Dr Saba gave Mr Elliott a workers' compensation medical certificate. As a result of that consultation Mr Elliott became aware of his right to apply for workers' compensation. [19] Dr Saba examined Mr Elliott and found he was tender on the right side over the acromioclavicular joint. The pain had been made worse by Mr Elliott using weights as a result of a rehabilitation program developed by a physiotherapist to whom Mr Elliott had been referred by Centrelink. Dr Saba prescribed anti-inflammatory medication and sent Mr Elliott for further X-rays. On examining the X-rays on 14 October 2009 Dr Saba determined that Mr Elliot's shoulders had not improved and referred him to another specialist. -- 2 of 6 -- 3 [20] Mr Elliott made an application for compensation on 15 October 2009. The legislation [21] The relevant provisions of the Act are set out below: "s. 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 lodge the application was due to - (a) mistake; (b) the claimant's absence from the State; or (c) a reasonable cause. . . . s. 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. (2) However, any entitlement to weekly payment of compensation starts on - (a) if a doctor 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 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).". Conclusions [22] In light of the above legislative provisions the Commission is required to determine: 1. The date upon which the entitlement to compensation arose; 2. Whether the application for compensation was lodged within six months after the date upon which the entitlement to compensation arose; 3. Whether a reasonable cause can be established for Mr Elliott failing to lodge the application within time; and 4. If so, whether the Commission should exercise the discretion provided by s. 131(5) of the Act to waive s. 131(1). [23] These issues are now addressed in turn. 1. The date upon which the entitlement to compensation arose. [24] In WorkCover Queensland v Downey1 President Hall held that "the expression 'assessed by a doctor' … must be taken to mean 'assessed by a doctor as resulting in total or partial incapacity for work'.". The Appellant and Q-COMP are in agreement that the assessment which resulted in total or partial incapacity for work was that undertaken by Dr Daoud on 12 December 2008. On that date Dr Daoud issued the first Centrelink medical certificate stating that Mr Elliott was totally incapacitated for work until 15 January 2009. The parties agree, and 1 WorkCover Queensland v Patricia Mary Downey (2001) 168 QGIG 381. -- 3 of 6 -- 4 the Commission accepts, that in light of this certificate, the date upon which the entitlement to compensation arose was 12 December 2008. 2. Whether the application for compensation was lodged within six months after the entitlement to compensation arose. [25] Given that an application for compensation must be lodged within six months after the entitlement to compensation arose, Mr Elliott's application should have been lodged on or before 12 June 2009. The application was lodged on 15 October 2009. The parties agree that the application was lodged just in excess of four months outside the statutory time period. 3. Whether a reasonable cause can be established for Mr Elliott failing to lodge the application within time. [26] Section 131(5) of the Act provides three circumstances where the time for lodging the application can be waived. These are mistake; the claimant's absence from the State or a reasonable cause. In this case the Appellant is relying only on the circumstance of reasonable cause. [27] The Appellant argued that the reasonable cause was that Mr Elliott did not believe that the injury was significant and consequently had not intended to lodge a claim for workers' compensation. Mr Elliott was also unaware of his rights to apply for workers' compensation. This lack of knowledge, it was submitted, was supportive of a man not intending to make an application. [28] The Appellant argued that the treatment prescribed by Dr Daoud and the results of the first X-rays showed that the injury was nothing to be alarmed about. This was reinforced by the advice given by Dr Morgan who, on the Appellant's submission, recommended a "wait and see approach". It was not until Mr Elliott saw Dr Saba that the significance of the injury was made known. Once he was alerted to that an application for compensation was lodged. The Appellant referred to the decision of the Commission as constituted in Churchill v Q-COMP2 (Churchill) where I said: "I have accepted as a reasonable cause for failing to lodge within the prescribed time that Mr Churchill did not fully appreciate the seriousness of his condition and might recover in time. However, I have also concluded that Mr Churchill failed to take steps at an early stage to ascertain the extent of his condition or to address his condition despite being debilitated by it.". [29] This situation was contrasted with that of Mr Elliott where, it was submitted, he tried to ascertain the extent of his condition at an early stage. [30] Q-COMP said that Mr Elliott had provided various explanations for not making the application within the prescribed time period and submitted that the closest resemblance to a true explanation was that Mr Elliott thought his shoulder pain would resolve itself in time. However, by the time Mr Elliott returned to see Dr Daoud in December 2008 he had been suffering pain for five months. He must have realised the problem was not resolving itself. Rather than seeking a workers' compensation certificate he sought a Centrelink medical certificate confirming incapacity for work. Q-COMP submitted that either Mr Elliott knew that the injury was not work-related or he made a deliberate decision to choose Centrelink benefits over workers' compensation. [31] Q-COMP further submitted that Mr Elliott made a deliberate decision because he did not advise Dr Morgan of the cause of his injury and decided to continue to see whether the pain would resolve itself despite the length of time he had been experiencing such pain. Q-COMP said that a deliberate decision not to claim workers' compensation does not establish reasonable cause: Mayne Group Ltd v Q-COMP3 (Mayne). [32] Both parties referred to the decision of Scholl J in Quinlivan v Portland Harbour Trust4 (Quinlivan) and which was cited with approval by Linnane VP in Cook v Q-COMP5 and Gordon IM in Mayne, ibid. Reasonable cause refers to 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.". [33] The Appellant also referred to my decision in Churchill, op cit, where, after outlining various authorities, including Quinlivan, op cit, I said that the issue to be considered in determining matters such as the present 2 Glen Trevor Churchill v Q-COMP (2009) 190 QGIG 247. 3 Mayne Group Ltd v Q-COMP Unreported, Brisbane Industrial Magistrates Court No. 122389 of 2003, Gordon IM, 13 February 2004. 4 Quinlivan v Portland Harbour Trust [1963] VR 25 at 28. 5 Collin Charles Cook v Q-COMP (2008) 187 QGIG 220. -- 4 of 6 -- 5 appeal, is whether the claimant can show an act or omission which was reasonable in the circumstances and which operated to prevent him/her from filing the application within the prescribed time or something which might delay a reasonable person in filing the application [34] According to the application for compensation and other information given by Mr Elliott to WorkCover, he first experienced pain on 10 August 2008. I accept that Mr Elliott proceeded on the basis that his pain would resolve itself in time. However, this explanation starts to become a little thin when, after six months, he reported to Dr Daoud in January 2009 that his pain was worsening. It was for that reason that Dr Daoud referred Mr Elliott for a specialist's opinion. Mr Elliott understood that Dr Morgan recommended allowing time to see whether the injury resolved itself. He adopted that option out of the range of therapeutic options suggested by Dr Morgan. However, the option of allowing nature to take its course was presented in the context of Mr Elliott advising that he had only been experiencing pain for two and a-half months and not informing Dr Morgan that his pain had worsened over the preceding few months. [35] Mr Elliott said that he had no knowledge of the workers' compensation system. Q-COMP produced Mr Elliott's workers' compensation claims history which shows that a medical expenses claim had been admitted in November 2008. Mr Elliott recalled the claim but said that the entire matter had been handled by his former employer and he did not have any time off. The claim only related to medical expenses. His former employer was a self-insurer. [36] I accept that the earlier claim did not require much activity on the part of Mr Elliott. However, I do have difficulty accepting that a 55 year old person would not have knowledge of the ability to lodge a workers' compensation claim for a work-related injury. [37] The primary difficulty for Mr Elliott in this case is that he did not advise either Dr Daoud or Dr Morgan that the pain in his shoulders was caused by the work he was performing at the Warwick Chaff Mill. I do not believe Mr Elliott when he said he told both medical practitioners that his injury was work-related. Neither practitioner had a record of such advice and both were unequivocal that had such information been proffered Mr Elliott's case would have been handled quite differently. It is stretching credulity too far to think that two medical practitioners would have both omitted to record such important information. [38] I do not accept that the failure to advise both practitioners of the suspected cause of the injury demonstrated an intention on the part of Mr Elliott not to lodge an application for compensation. If I were to accept, for the sake of this argument, that Mr Elliott did not have knowledge of the workers' compensation system there was equally no reason for him to have remained silent about the cause. That work was the apparent cause appears to be Mr Elliott's belief since August 2008. Further, his failure to disclose this information to Drs Daoud and Morgan stands in stark contrast to his disclosure to Dr Saba. Once Mr Elliott told Dr Saba of his belief about the cause of the injury Dr Saba issued a workers' compensation certificate and set Mr Elliott on the path to making an application. In light of Dr Daoud's evidence about her practice when a patient advises of a work-related injury I consider that she would have acted in the same manner as Dr Saba had she been advised of the cause. Instead Mr Elliott asked for a Centrelink medical certificate and pursued rehabilitation through the Commonwealth Rehabilitation Service. [39] Q-COMP submitted that Mr Elliott made a deliberate decision to follow an alternative path to workers' compensation. When that failed he regretted that decision and lodged a workers' compensation application: Hansen v Q-COMP.6 Such conduct does not, in the submission of Q-COMP, amount to reasonable cause: Mayne Group Ltd v Q-COMP.7 [40] In this case I have accepted that Mr Elliott did not initially intend to seek workers' compensation benefits, relying instead on a belief that his injury would resolve itself. However, when, after a period of some months it had not resolved, Mr Elliott finally returned to Dr Daoud. At no time over the course of five consultations did he advise Dr Daoud that the injury was caused by his previous employment. Dr Daoud referred Mr Elliott to Dr Morgan. Mr Elliott did not disclose to Dr Morgan pertinent information such as the time he had been suffering pain, that it had worsened or that it was work-related. He subsequently embarked on a rehabilitation program which included the use of weights and which exacerbated his injury. When this occurred Mr Elliott consulted Dr Saba and for the first time disclosed to a medical practitioner that his injury was caused by his work at the Warwick Chaff Mill. Given this was Mr Elliott's belief since August 2008 there is no reasonable explanation for his non-disclosure of the cause of the injury to either Dr Daoud or Dr Morgan. 6 Kevin John Hansen AND Q-COMP (C/2010/16) - Decision No. 2 <http://www.qirc.qld.gov.au> 7 Mayne Group Ltd v Q-COMP Unreported, Brisbane Industrial Magistrates Court No. 122389 of 2003, Gordon IM, 13 February 2004. -- 5 of 6 -- 6 [41] Having considered the evidence the Commission is not satisfied that Mr Elliott can show an act or omission which was reasonable in the circumstances and which operated to prevent him from filing the application within the prescribed time or something which might delay a reasonable person in filing the application. The system of workers' compensation allows workers a reasonable period in which to make a claim. Here, despite Mr Elliott believing at all times his pain was work-related, he neglected to tell his medical practitioners of his belief. While it is an omission and prevented him from lodging the application within the prescribed time it was not reasonable because there was no impediment to or reason not to disclose the information over a six month period. Further, Mr Elliott had no reticence in advising Dr Saba of the cause after an alternative path of treatment had failed. It seems to be, as Q-COMP submitted, that enlightened by the failure of his attempt at resolution of the pain by rehabilitation, Mr Elliott belatedly sought an alternative approach through workers' compensation. Regrettably, this path would have been available much earlier had Mr Elliott chosen to disclose the cause to Dr Daoud in 2008 and possibly had pertinent disclosures been made to Dr Morgan in February 2009. Subsequent regret over the path chosen does not constitute reasonable cause. [42] In all of the circumstances the Commission is not satisfied that the Appellant has established a reasonable cause for failing to lodge the application for compensation within time. [43] Accordingly, it is unnecessary for the Commission to consider whether the discretion provided by s. 131(5) of the Act should be exercised to waive s. 131(1). [44] The decision of the Review Unit, Q-COMP is confirmed and the appeal is dismissed. [45] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2011 28 February 1 March Released: 14 April 2011 Appearances: Mr I. Klevansky, Counsel instructed by Jon Kent Lawyers for the Appellant. Mr P.B. O'Neill, Counsel instructed by Ms J Horton, Q-COMP for the Respondent. -- 6 of 6 --