Churchill v Q-COMP [2009] QIRC 87 (2009) 190 QGIG 247

[Extract from Queensland Government Industrial Gazette, dated 27 March, 2009, Vol. 190, No. 12, pages 247-258] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2008 - s.550 - appeal to commission Glen Trevor Churchill AND Q-COMP (WC/2008/74) COMMISSIONER FISHER 18 March 2009 Appeal against decision of Review Unit, Q-COMP - Application not lodged within six month time limit - Mistake - Reasonable cause - Absence from the State - Evidence - Events leading up to application - Time for applying - Time from which compensation payable - Whether Commission has discretion to waive time limit - Should Commission exercise discretion - Actions in bringing application dilatory - Not appropriate for Commission to exercise discretion - Appeal refused. DECISION Glen Churchill (the Appellant) has appealed against the decision of the Review Unit, Q-COMP dated 5 August 2008 which confirmed the decision of Woolworths Ltd (Woolworths), a workers' compensation self-insurer, to reject his application for compensation dated 25 February 2008. The reason for rejection of the application was that the application was not lodged within six months after the entitlement to compensation arose. The Review Unit also declined to waive compliance with the six month time limit on the grounds that no mistake, absence from the State or reasonable cause had been established. Woolworths was given leave to be heard by decision of Swan DP (2008) 189 QGIG 681. Evidence The following evidence was given in this matter: For Mr Churchill:  Himself; and  Dr Sarath Karunaratne, General Practitioner. For Q-COMP:  Dr Phillip Watson, General Practitioner;  Dr Susan Byth, General Practitioner; and  Dr Michael Coroneos, Neurosurgeon. The events leading up to the application for compensation Mr Churchill was 18 years old when he commenced casual employment with the Woolworths Distribution Centre as an order assembler on 10 November 2003. This work involved picking orders from shelves and placing them on pallets to deliver to the docks to be put onto trucks. Mr Churchill said he found the work to be physically demanding especially when required to pick heavy stock. The work involved squatting, lifting, stepping up and down on pallets, some twisting and stooping. He generally worked 30 hours per week. Mr Churchill had undertaken a pre-employment medical examination and was advised that he was fit for work. He said he had been advised at orientation that some initial discomfort would be experienced on commencement and it would take some weeks for this to resolve. During orientation Mr Churchill was also provided with a handbook which outlined various policies, entitlements and workers' compensation procedures. Mr Churchill said that on 8 December 2004 when he had sneezed at work he felt a type of pain he had not previously experienced. It was "a distinctive burning, shooting pain almost from the hip joint down to the knee joint". Mr Churchill did not complete his shift but was able to return to work for the next available shift. He did not report any injury to Woolworths and provided a range of reasons for not doing so including:  He had not considered his condition was work-related;  He believed reporting the injury would lead to a reduction in hours or loss of his job. He needed the job to meet his living expenses;  As a casual employee Mr Churchill felt his job was under pressure due to industrial action taking place at the distribution centre;  The contact person for reporting injuries was involved in the industrial action and was difficult to locate or approach; -- 1 of 11 -- 2  He thought the condition would resolve. He attended Dr Karunaratne, his General Practitioner, on 10 December 2004. Dr Karunaratne said that Mr Churchill told him that he had been having back pain for about two weeks which suddenly got worse. Mr Churchill also mentioned past back pain which had settled down. Dr Karunaratne recorded in his notes that Mr Churchill had been lifting things at work but no particular reason for the pain was recorded. On examination Dr Karunaratne found limited movement in Mr Churchill's leg because of the pain but he could not find any local tenderness or anything neurologically abnormal. Dr Karunaratne considered there was possible nerve irritation and ordered a CT scan of the lumbar spine to find out the cause of the pain. Mr Churchill recalled that Dr Karunaratne had told him that he may have sciatica which could have occurred in any one of a number of ways from tying his shoes, to bending over to pick up a piece of paper or anything of that type of nature. A possible diagnosis of sciatica was recorded in Dr Karunaratne's notes. Dr Karunaratne issued a medical certificate for the period 8 to 10 December 2004 because he believed the pain warranted his approval of some absence from work. He said that in December 2004 he had not turned his mind to a relationship between incapacity and work. Although Mr Churchill had the CT scan on 3 February 2005 he did not return to see Dr Karunaratne. Mr Churchill continued to work at the distribution centre but left of his own accord on 18 July 2005. After leaving Woolworths Mr Churchill obtained employment for four days with a landscaping contractor and later as a bottle shop attendant for a few months. The latter employment was casual as Mr Churchill was studying at South Bank TAFE with a view to gaining university entry. Mr Churchill consulted Dr Byth, General Practitioner, on 31 March 2006 after experiencing further leg pain when walking on a beach. He mentioned to Dr Byth that he had had pain down his left leg and in his lower back since December 2004. She recorded in her notes that Mr Churchill had only seen a physiotherapist for treatment. (It seems that of his own volition Mr Churchill had undergone one or two physiotherapy sessions in either late 2004 or early 2005). Dr Byth diagnosed Mr Churchill with sciatica and issued a Centrelink Medical Certificate stating that Mr Churchill had been unfit for work/study for the period 1 March 2006 to 1 June 2006. At that time Mr Churchill was engaged in casual work of about 10-15 hours per week and was also studying. A further certificate was issued by Dr Byth for the period 18 July 2006 until 18 October 2006. Dr Byth referred Mr Churchill to Dr Watson, a General Practitioner with a full-time interest in musculoskeletal medicine. Dr Watson first saw Mr Churchill on 3 April 2006. He recorded that Mr Churchill reported two months of low back pain which had been worsening. Mr Churchill reported that the cause was sport and probably moving house. Dr Watson saw Mr Churchill again on 20 April 2006 and 4 May 2006. Despite the treatment Dr Watson had given, Mr Churchill reported that the pain had not changed and seemed to have worsened. Dr Watson prescribed a short course of prednisone and referred him to Dr Coroneos, neurosurgeon. Mr Churchill first attended Dr Coroneos on 17 May 2006. Dr Coroneos noted that Mr Churchill said that his sciatica occurred about 18 months ago when he was training for rugby union. Dr Coroneos diagnosed a disc protrusion causing a left-sided sciatica. Dr Coroneos described the sciatica as chronic and severe. Dr Coroneos requested an MRI examination which showed two level disc disease. He discussed forms of treatment with Mr Churchill and said surgery was possible but should be avoided as long as possible. Ultimately, Mr Churchill decided to have surgery. He underwent a laminectomy and discectomy on 21 July 2006. Dr Coroneos considered that Mr Churchill would have been totally incapacitated for work for at least six to eight weeks after the surgery and following that period he would be able to engage in a graduated return to work. After the surgery Mr Churchill reported feelings of depression to Dr Coroneos. He referred Mr Churchill to a psychologist, Mr Dooley, who diagnosed an adjustment disorder. Mr Dooley subsequently requested Dr Byth to extend Mr Churchill's referral. To do this Dr Byth examined Mr Churchill on 13 October 2006. She concurred that Mr Churchill still had an adjustment disorder and prepared a mental health plan. Mr Churchill's evidence was that it was only after he was recuperating from the surgery that someone suggested to him that he could make an application for workers' compensation. However, the first he became aware that his injury may have been related to his employment at Woolworths was during the period he was seeing Drs Watson and Coroneos. Mr Churchill attended the surgery at which Dr Karunaratne practised on 16 October 2006 to ask for a copy of his medical records. These were given to him. As Mr Churchill lost those records he returned to the surgery on 16 January 2007 to request another copy. He saw Dr Wang who provided them. Mr Churchill also asked Dr Wang for and was provided with a Centrelink Medical Certificate. Mr Churchill then sought legal advice about making a claim for workers' compensation in March 2007. Mr Churchill said that not long after the meeting it was determined that a claim should be made. However, a claim was only lodged -- 2 of 11 -- 3 with WorkCover Queensland on 6 December 2007. On 14 December 2007 Woolworths wrote to Mr Churchill about lodging an application with the self-insurer. This was followed up by a telephone call on 3 January 2008. Mr Churchill ultimately lodged an application dated 25 February 2008 with the self-insurer. On 6 December 2007 with his son's consent Mr Churchill's father attended the surgery and asked Dr Karunaratne to provide a WorkCover certificate covering the event in December 2004. It is recorded in Dr Karunaratne's notes that Mr Churchill Snr requested the Certificate as it was needed for his son's solicitor. Dr Karunaratne said he considered it reasonable to provide the certificate because he had recorded in his notes of 10 December 2004 that Mr Churchill had been lifting things at work and he thought it was possible the injury was work-related. The legislation The relevant provisions of the Workers' Compensation and Rehabilitation Act 2003 (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 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 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).". Submissions for Mr Churchill The Appellant put alternative submissions to the Commission. For the purposes of the primary submission it was accepted that Mr Churchill's entitlement to compensation arose on 10 December 2004, being the day he was first seen by a doctor. While the application was made outside the statutory time limit it was submitted that the time limit should be waived because the failure to lodge was due to mistake or reasonable cause. The Appellant said that the period in respect of which the mistake or reasonable cause is required to be shown is the period of six months prescribed in s. 131(1) of the Act and that any delay after the expiration of that period and before the lodgement of the application cannot be taken into consideration: cf Murray v Baxter (1914) 18 CLR 623 at 632-633; Banks v ComCare Australia [1996] FCA 1490 at [12]; Black v City of South Melbourne [1963] VR 34 at 36 ('Black'). In considering whether the failure to lodge within the prescribed period was due to mistake the Appellant submitted that for the six months after the injury occurred on 10 December 2004 Mr Churchill continued to work for Woolworths. He had not been provided with any definite diagnosis that his injury was work-related and he thought the injury would resolve. Mr Churchill was a young man of 19 years of age who had not considered that he had an injury worthy of a workers' compensation claim. The rarity of sciatica in a person of that age was confirmed by Dr Coroneos in evidence. -- 3 of 11 -- 4 The Appellant further submitted that the seriousness of the injury did not become apparent to Mr Churchill until his condition deteriorated in early 2006 and he underwent surgery in July 2006. It was only after the surgery that Mr Churchill made a connection between the injury and his former employment with Woolworths. The Appellant submitted that in those circumstances the Commission should conclude that the failure to lodge the claim within the six month period was due to mistake, being mistake of fact. Accordingly, it was contended that no further enquiry is necessary and the prohibition in s. 131(1) of the Act must be waived. If the Commission was not satisfied that there was a mistake, then the Appellant submitted reasonable cause could be established for the following reasons:  Mr Churchill was unaware of the seriousness of his condition;  He thought he would get better;  He was unaware that his condition was work-related; and  He thought adjustment of his activity would allow his symptoms to settle. The Appellant further submitted that the reasons listed earlier in this decision about why Mr Churchill did not report the injury may also constitute reasonable cause. Given that reasonable cause could be established then the waiver must operate. The Appellant rejected the submissions made by Q-COMP and Woolworths that even if mistake or reasonable cause is found within the six month time frame that a discretion reposes in the Commission by virtue of s. 131(5) of the Act. The Appellant submitted that if the Legislature had intended a discretion to be available then it would have been expressly stated. In this regard the Appellant referred to a number of cases, including Black (above), where the legislation in question provided for other factors to be taken into account. Under s. 131(5) the discretion given to the Commission is whether mistake or reasonable cause existed. It is not the type of discretion ordinarily exercised in extension of time cases. The Appellant said that in the absence of specific statutory guidance the only factors which guide the exercise of the Commission's jurisdiction in respect of s. 131(5) is whether the Commission finds there was mistake or reasonable cause. The alternative submission of the Appellant is that the claim was made within six months after the entitlement to compensation arose. Reference was made to the decision in WorkCover Queensland v Downey (2001) 168 QGIG 381 ('Downey') where Hall P 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 submitted that it does not appear that Dr Karunaratne assessed Mr Churchill within the meaning of Downey (above) when he first attended Mr Churchill on 10 December 2004. Such an assessment did not occur until 6 December 2007 when Dr Karunaratne provided a WorkCover medical certificate as required by s. 132(3) of the Act. Submissions of Q-COMP Q-COMP submitted that pursuant to s. 131 of the Act Mr Churchill had to lodge his claim within six months after the entitlement to compensation arose. Section 131(5) provides three circumstances where the time limit may be waived. As there is no suggestion that Mr Churchill was absent from Queensland during the relevant period his appeal is restricted to whether he has shown a mistake or a reasonable cause, and if so, whether the time for applying for compensation should be waived pursuant to s. 131(5) of the Act. Q-COMP submitted that if mistake or reasonable cause was established then the Commission would have to consider whether this is an appropriate case to exercise discretion to waive the time limitation. Q-COMP said the following matters were required to be determined in this appeal: 1. What was the date upon which the entitlement to compensation arose? 2. Has Mr Churchill lodged his application for compensation within six months after the date upon which the entitlement to compensation arose? 3. Can Mr Churchill prove mistake or reasonable cause for failing to lodge his application within six months after the date upon which the entitlement to compensation arose? If not, no further enquiry is necessary. 4. If Mr Churchill can prove mistake or reasonable cause should the discretion provided in s. 131(5) be exercised in his favour to waive s. 131(1)? Question 1 In answer to Question 1 Q-COMP considered the weight of evidence is that the earliest date upon which it could be held that Mr Churchill was assessed as having an incapacity for work was 31 March 2006. In arriving at this conclusion Q- COMP noted that although Dr Karunaratne issued a medical certificate on 10 December 2004 there was no evidence that Mr Churchill was absent from work except for the balance of his shift on 8 December 2004. Moreover, there was no evidence that Mr Churchill either received the certificate or took any action in relation to it. Reference was made to Dr Karunaratne's evidence that he did not turn his mind to any relationship between work and incapacity as at 10 -- 4 of 11 -- 5 December 2004. In accordance with the authorities in Downey (above) and Appo v Q-COMP (2003) 174 QGIG 1120 ('Appo') Q-COMP submitted that the Commission could not conclude that Mr Churchill was assessed as having any incapacity for work by Dr Karunaratne on 10 December 2004. In contrast when Dr Byth examined Mr Churchill on 31 March 2006 she assessed him as being partially incapacitated for work/study and issued a Centrelink Medical Certificate to that effect. Accordingly, this was the relevant date from which the time period should run. Question 2 Q-COMP submitted that on any view of the medical evidence Mr Churchill is well outside the six month time period. Question 3 Q-COMP submitted that Mr Churchill could not prove either mistake or reasonable cause. In relation to the argument that Mr Churchill was not aware of the full extent of his injuries Q-COMP contended he did not act reasonably by failing to return to see Dr Karunaratne after the CT scan to properly ascertain the nature and extent of his injury. Q- COMP also submitted that any suggestion that Woolworths would seek reprisal against Mr Churchill for lodging a claim was mere belief and no evidence to sustain that belief was led. Similarly, there was no credible evidence to show that the main reason he failed to notify his employer of an injury was due to an industrial dispute. Mr Churchill's entitlement to compensation arose at the very earliest on 31 March 2006, and a valid and enforceable claim had to be lodged within 6 months of that date. The evidence showed that Mr Churchill had decided to apply within that time constraint, although the first positive step to prosecute the claim fell just outside that period when Mr Churchill sought a copy of his medical records from Dr Karunaratne. In Q-COMP's submission to ask for medical records is a sophisticated step, one not ordinarily expected of a lay person but one indicative of a person who has a good understanding of what will need to be proved. Q-COMP submitted that this action undermined any submission that Mr Churchill may have been unable to take a step due to depression. In the submission of Q-COMP no mistake or reasonable cause could be established sufficient to satisfy s. 131(5) of the Act. Question 4 In the event the Commission found mistake or reasonable cause Q-COMP then put submissions concerning the exercise of the Commission's discretion to waive compliance with the time limit specified in s. 131(1) of the Act. Q-COMP rejected the submission made by the Appellant that if mistake or reasonable cause was found that was the end of the matter, i.e., the application was accepted as valid and enforceable. In submitting that an exercise of discretion was involved Q-COMP referred to Core v WCB (1992) 33 WCR 137 ('Core'). Here, Moynihan P was dealing with an appeal to the Industrial Court in respect of a decision of an Industrial Magistrate who did not address the issue of waiver of the six month time period for applying for compensation as prescribed by the Workers' Compensation Act 1990. In that Act s. 6.2(3) provided a power to waive the limitation period in almost identical terms to s. 131(5) of the Act. Moynihan P referred to the exercise of the power of waiver vested in the Workers' Compensation Board and subsequently the Industrial Magistrate as a discretion. In responding to the Appellant's submission that only an enquiry into the Appellant's actions for the first six months after the entitlement to compensation arose is required Q-COMP firstly pointed out that the cases on which the Appellant sought to rely were decided in respect of legislation which is materially different to that under consideration. The legislation in those cases provided no discretion to extend the limitation period. Q-COMP relied on R v Workers' Compensation Board of Queensland ex parte Heffernan (1979) Qd R 563 where Kelly J, with whom Stable SPJ and Dunn J agreed, held that: "The first matter for consideration is what was the duty of the Office in relation to an application filed after the expiration of the six months period prescribed by clause 4(2) of the Schedule. Firstly, it was required to consider whether the failure to make the application within the prescribed time was due to mistake, absence from Queensland, or other reasonable cause. If it was not satisfied that the failure was due to any of those matters then there is no power to waive the time provision and that would be the end of the matter. If, however, it was satisfied that the failure was due to any one of those matters the question arises whether the time provision must then be waived or whether the Office has a discretion whether or not to do so, and if there is such a discretion, what matters it may properly take into account in its exercise." at p. 567. -- 5 of 11 -- 6 In determining whether the exercise of discretion was compulsory, Kelly J, at page 568, said: "In my view the context of clause 4(2) itself would not indicate that the word 'may' has a compulsive meaning. For instance, I do not consider that, having provided a limitation period of six months, the legislature would have intended that the limitation should automatically be waived merely because the failure to make the application within the prescribed period was due to absence from Queensland, irrespective of any other circumstances as, for example, a long and unexplained delay in making the application after the applicant had returned to Queensland.". Further, in ANZ Banking Group v Q-COMP, Unreported, Industrial Magistrates Court, Brisbane, Comans IM, 7 March 2003, after finding mistake, the Industrial Magistrate then considered the reasons for the delay between when the worker was advised of the need to file the application, which was already out of time, and when the application was actually lodged. On appeal to the Industrial Court Hall P held that the way in which the Industrial Magistrate dealt with the predecessor section to s. 131 was “entirely unexceptional”: ANZ Banking Group v Q-COMP (2004) 175 QGIG 1125 at 1126 ('ANZ'). Q-COMP submitted that in deciding whether to exercise discretion the Commission should consider the entirety of Mr Churchill's actions from when he sneezed on 8 December 2004 to the date he applied for compensation. Mr Churchill was aware in March 2006 that he was suffering an injury of some significance as it was interfering with his study. He asked for a Centrelink medical certificate. Within a couple of months of that Mr Churchill underwent significant surgery. The first step taken by Mr Churchill in relation to making an application was to seek his medical records; he lost them but did not seek another copy for a further 2½ months. Another few months elapsed before he sought legal advice about a compensation claim. The first claim was lodged in December 2007. Q-COMP submitted that the delays between the various actions are entirely unexplained. In the circumstances Q-COMP submitted that Mr Churchill had ample opportunity to apply for compensation well before 6 December 2007. This was not a case where the Commission should exercise its discretion in favour of Mr Churchill. Submissions for Woolworths Woolworths submitted that a two-pronged approach was required with respect to s. 131(5) of the Act: 1. Has the appellant established a mistake, reasonable cause or that he was absent from the State? 2. If so, then should the Commission exercise its discretion in declaring the application valid and enforceable? It was further submitted that even if mistake, reasonable cause or absence from the State could be established it did not automatically follow that the application would be allowed. Discretion still reposed in the decision-maker as to whether or not to extend the time. Non-compliance with the time limit at s. 131(1) of the Act is a matter of some gravity, however the subsection is subject to a power to waive at s. 131(5): ANZ (above). Woolworths then went on to refer to the factors identified by de Jersey P in considering whether to extend time for filing an appeal: Carmody v WorkCover Queensland (1998) 157 QGIG 119 and addressed submissions in relation to each of those factors. Of particular relevance is the explanation for the delay. Woolworths submitted that at best Mr Churchill's entitlement to compensation arose when he attended on Dr Byth. Woolworths also considered that if reasonable cause or mistake could be established the entitlement may have arisen on 10 December 2004 when Mr Churchill saw Dr Karunaratne. However, Woolworths qualified that submission by noting the law that ignorance by a worker as to their rights under the Act is not an excuse for failure to lodge a claim within the specified period: Mayne Group Limited v Q-COMP, Unreported, Industrial Magistrates Court, Brisbane, Gordon IM, 13 February 2004 ('Mayne'). Woolworths said that the main excuses proffered by Mr Churchill for not lodging his application for compensation until December 2007 is he thought he might recover and some suggestion of a psychological disorder. In respect of the latter issue there was little or no evidence which would allow the Commission to consider what impact any alleged psychiatric or psychological disorder may have had on the Appellant. Issues that weigh against the exercise of discretion are:  the unexplained delay from October 2006 through to December 2007 given Mr Churchill had contemplated making a claim in October 2006;  the unexplained delay between obtaining legal advice in March 2007 and lodging the application in December 2007;  the apparent lack of enthusiasm for prosecuting the application given it took a few months for Mr Churchill to lodge his application with the correct body after being informed he had filed with the wrong authority. -- 6 of 11 -- 7 In conclusion Woolworths submitted that the exercise of discretion could not be seen to have miscarried and the appeal should be dismissed. Conclusion When did Mr Churchill's entitlement to compensation arise? As Q-COMP submitted the first issue to be determined is the date on which Mr Churchill's entitlement to compensation arose. Section 131(1) of the Act provides that an application for compensation is valid and enforceable only if it is lodged within six months after the entitlement to compensation arose. Section 141(1) provides that an entitlement to compensation arises on the day the worker is assessed by a doctor. In Downey (above) Hall P held that "assessed by a doctor" means "assessed by a doctor as resulting in total or partial incapacity for work''. In this matter the Commission is confronted with a number of medical certificates dating from 2004 to 2007. The Appellant has made alternative submissions that either 10 December 2004 or 6 December 2007 should be the relevant date from which the time limit is calculated. Q-COMP submitted the earliest date was 31 March 2006 when Mr Churchill was assessed by Dr Byth. Woolworths agreed that at best the earliest date was 31 March 2006 but also contended that it was possible that an assessment occurred on 10 December 2004. Based on his notes the first medical certificate was written by Dr Karunaratne covering the period from 8 to 10 December 2004. This certificate was not tendered in evidence so its precise terms remain uncertain. The next medical certificate was issued on 31 March 2006 by Dr Byth. This was a Centrelink Medical Certificate which showed that Mr Churchill was unfit for work/study from 1 March 2006 until 1 June 2006. Dr Byth certified that Mr Churchill was currently unable to do his usual work/study or any other work for eight hours or more per week. The last medical certificate was issued by Dr Karunaratne on 6 December 2007 stating that Mr Churchill was unable to work at all from 8 to 10 December 2004. The certificate was issued after Dr Karunaratne reviewed his notes. No physical assessment of Mr Churchill was conducted that day. I reject the Appellant’s submission that an assessment occurred on 6 December 2007 resulting in a period of total or partial incapacity which is said to have been occasioned nearly three years earlier. I do not entirely rule out the possibility of a retrospective assessment being made in certain circumstances and in this regard I note that in Downey (above) Hall P refers to the protection afforded by the (now) s. 141(2) against retrospective unleashing of the limitation period by an assessment of total or partial incapacity made many months ago. On 6 December 2007 Dr Karunaratne reviewed his notes of 10 December 2004 and saw that Mr Churchill had mentioned on that day that he had been engaged in lifting at work. However, Dr Karunaratne did not make a physical assessment of Mr Churchill on 6 December 2007. Although a physical assessment is not necessarily conclusive of an assessment there is simply no evidence that could lead to the view that Dr Karunaratne was better placed on 6 December 2007 than he was on 10 December 2004 to assess Mr Churchill as being totally or partially incapacitated for work from 8-10 December 2004. Together with being motivated by a request from Mr Churchill Snr to provide a WorkCover certificate the benefit of hindsight seems to have been at play. In my view the only possibilities are that the assessment occurred on either 10 December 2004 or 31 March 2006. An issue arises as to whether on 10 December 2004 Dr Karunaratne made an assessment resulting in a finding of total or partial incapacity for work. Q-COMP submitted that the certification for absence from work for 8-10 December 2004 was given as of course, rather than because of any assessment of incapacity. There is merit in this submission as Dr Karunaratne acknowledged that his notes did not show that Mr Churchill had told him that he had time off work. Dr Karunaratne did however physically examine Mr Churchill on 10 December 2004, noted that Mr Churchill had limited movement in his left leg because of the pain and decided to authorise an absence from work. I accept it is curious that a medical certificate authorising a period of absence would be written for a period, most of which had passed, if the patient had not advised of any absence from work. However, given that the date of commencement of the certificate is the date Mr Churchill said the injury occurred and he did not work his full shift that day I am prepared to accept Mr Churchill indicated to Dr Karunaratne he had taken some time off work. There is no explanation of why the other dates were included except that Dr Karunaratne considered this was warranted. Q-COMP submitted that doubt exists as to whether the certificate was ever received or acted on by Mr Churchill. In accordance with the decision in Appo (above) it does not matter that the worker does not take the certificate; failure to do so does not affect when the assessment was made. Further, Appo suggests that where partial incapacity has been assessed a worker may decide to continue working despite the incapacity. Dr Byth's assessment on 31 March 2006 is unequivocal. A three month incapacity for work/study was initially found. This was later extended to 18 October 2006. While Q-COMP preferred the date of Dr Byth's initial assessment it is -- 7 of 11 -- 8 noted that one of the reasons Q-COMP rejected 10 December 2004 is that Dr Karunaratne did not make a connection between work and the injury on that date. However, with respect to Q-COMP, it does not appear from the evidence of Dr Byth that she made such a connection either. In her evidence she could not recall whether the Centrelink certificate was sought because of incapacity for work or study. In any event such a connection between an injury and work is not determinative of when an entitlement to compensation arises. Compensation is payable for an injury sustained by a worker (s. 108). The entitlement to compensation for an injury to a worker arises on the day the worker is assessed by a doctor resulting in a total or partial incapacity for work (s. 141(1) and Downey (above)). A separate question is whether the injury which led to the total or partial incapacity for work is an injury within the meaning of s. 32(1) of the Act. There are any number of cases where a worker lodges a claim within the statutory time limit only to find that the requisite connection between work and the injury cannot be made out. Accordingly, having reviewed all of the evidence, I have concluded that the entitlement to compensation arose on 10 December 2004. On that date Dr Karunaratne conducted a physical examination of Mr Churchill, he observed limited movement in the left leg and wrote a medical certificate authorising an absence from work in circumstances where Mr Churchill had been unable to complete his shift on 8 December 2004. When taken together I have concluded that an assessment resulting in a finding of total or partial incapacity for work was made Dr Karunaratne on 10 December 2004. This is the date Mr Churchill’s entitlement to compensation arose. Was an application lodged within 6 months of the date when an entitlement to compensation arose? Given I have determined that the date on which an entitlement to compensation arose was 10 December 2004 and the application was not filed until December 2007, Mr Churchill failed to comply with the statutory time limit provided by s. 131(1) of the Act. Was the failure to lodge within the statutory time period due to mistake or reasonable cause? The next issue that arises is whether Mr Churchill's failure to lodge a claim within six months of 10 December 2004 was due to mistake or reasonable cause. I accept Q-COMP's submission that absence from the State does not arise for consideration in this matter. Mistake Section 131(5)(a) of the Act requires Mr Churchill to show that his failure to lodge the application within the prescribed time was due to mistake. The Appellant argued the mistake was due to Mr Churchill being unaware within the six month time frame that his condition was work-related, he thought his injury would resolve and he was aware of the seriousness of his condition. This was only made clear to him in May 2006 by Dr Coroneos. The Appellant contended that in these circumstances the failure to lodge the claim within the six month period was due to mistake, being mistake of fact. Dealing firstly with the argument that Mr Churchill failed to appreciate his injury was work-related I accept that Mr Churchill was quite a young man when he first attended on Dr Karunaratne reporting back and leg pain. I also accept that even though the sneeze at work on 8 December 2004 caused a shooting pain and resulted in him being unable to complete his shift on that day he did not make the connection between his injury and his work or a workers' compensation claim. He was not assisted in that regard by Dr Karunaratne who, despite being advised by Mr Churchill on 10 December 2004 of his lifting things at work, did not suggest a connection between his condition and his work activities. However, I am not satisfied that the failure to make the connection occasioned the failure to lodge the application within the prescribed time. In my view the failure was due to Mr Churchill’s neglect in following up on his injury. This becomes apparent when considering the arguments of the Appellant that Mr Churchill thought his condition would resolve and was unaware of the seriousness of his condition. Q-COMP submitted that Mr Churchill should be unable to rely on such contentions. Dr Karunaratne referred Mr Churchill for a CT scan to determine the cause of the pain. Although Mr Churchill underwent the scan he failed to act reasonably by not returning to Dr Karunaratne to ascertain the results or to seek appropriate treatment and guidance. I do not accept that mistake in failing to lodge an application within the prescribed time was due to Mr Churchill being unaware of the extent or seriousness of his condition. This was not a case where treating health professionals had failed to advise Mr Churchill of the extent of his injury or had misdiagnosed his condition. Mr Churchill had been given a diagnosis on 10 December 2004 but failed to ascertain the extent and nature of his condition by not returning to Dr Karunaratne for an interpretation of the report on the CT scan, for treatment of his injury or further information about it. Despite not returning to Dr Karunaratne, Mr Churchill was provided with a copy of the report. He took it with him when he consulted Dr Byth. The scan revealed a disc protrusion at L4/5 which would appear to be impinging on the L5 -- 8 of 11 -- 9 nerve and a disc bulge L5/S1. Any reading of the report would have raised cause for concern. Further, Mr Churchill said he continued to be debilitated by the pain during the remainder of his period of employment with Woolworths to the extent that he reduced his hours. It was clear then that the CT scan in February 2005 alerted him to a physical problem, his injury was not repairing of its own accord and some intervention would be necessary to restore him to reasonable health. The CT scan and continuing physical problems occurred within the six month time frame. In such circumstances I cannot conclude that the seriousness of his condition was not apparent to him or that he could reasonably believe the condition would resolve itself. For all of the foregoing reasons I cannot conclude that the failure to lodge the application within the prescribed period was due to mistake. Finally, I note Mr Churchill did not make any submission that mistake was caused by ignorance of an entitlement to apply for compensation. Had Mr Churchill made such submission it would fail in any event: Black (above). In addition information about workers' compensation matters was included in the handbook provided to him on orientation. Reasonable cause Having failed to establish mistake I now turn to a consideration of reasonable cause. Again, s. 131(5)(b) requires Mr Churchill to show that the failure to lodge the application within the prescribed time was due to a reasonable cause. In this regard the Appellant said the reasonable cause was a belief that he would feel better later or underestimated the long term effects of the injury. The Appellant provided several cases from other jurisdictions where such circumstances have been held to constitute reasonable cause: Australian Telecommunications Commission v Formoso (1995) 8 ALD 191; Butt v John W Eaton Ltd (1920) 29 CLR 126; Buttfield v ComCare (2001) 64 ALD 281; Tracey Village Sports & Social Club v Walker (1992) 111 FLR 32. The Appellant also asserted that fear of reprisal if the injury was reported and the industrial circumstances prevailing at the time could constitute reasonable cause. Each of these assertions was rejected by Q-COMP and Woolworths. They noted that there was no credible evidence justifying either belief. This is the case and so the submissions of Q-COMP and Woolworths in this regard are accepted. This leaves whether the failure to appreciate his condition constitutes a reasonable cause. All submissions referred to the meaning of "reasonable cause" given by Scholl J in Quinliven v Portland Harbour Trust [1963] VR 25 at 28 and which was cited with approval by Linnane VP in Cook v Q-COMP (2008) 187 QGIG 220 and Gordon IM in Mayne (above). 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". It is useful to refer to the decision of the Full Court of the Supreme Court of Victoria in Black (above) where consideration was given to the meaning of reasonable cause as it appeared in s. 34(1) of the Limitations of Actions Act 1958 (Vic). That section required an applicant to give notice to the respondent of a cause of action not more than six months after the cause of action accrued. Where an applicant contended that failure to give the notice "was occasioned by mistake or any reasonable cause" and the respondent "would not be materially prejudiced in his defence or otherwise" the applicant may seek leave of the Court to bring an action. After considering the ground of mistake the Court went on to consider reasonable cause. Before citing the passage by Scholl J shown above the Full Court said: "The inquiry here appears to be of a much wider kind justifying a more liberal attitude. The expression 'reasonable cause' appears to us to mean some act or omission which operated to prevent the giving of notice, and which was reasonable in the circumstances.". The issue the Commission needs to consider is whether Mr Churchill can show a reasonable act or omission 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. In considering this it is worthwhile to bear in mind that Mr Churchill was a young man, with no post-school qualifications and of limited means. I have previously said that I consider that Mr Churchill ought to have been, or at least had the means to be, aware of the seriousness of his condition. While not resiling from that view, the decision in Black (above) proposes a more liberal approach to determining whether reasonable cause existed. In that context I accept that Mr Churchill did not fully appreciate the seriousness of his condition and thought he might recover in time. After all he was a young man who continued to work in a physically demanding job albeit with reduced hours to accommodate his condition. His condition did not worsen significantly until early 2006 and at which time he consulted Dr Byth. It was only when he consulted Dr Coroneos that the full impact of his condition was made known. In these circumstances and bearing in mind Mr Churchill's youth and inexperience in life matters I am prepared to accept that Mr Churchill has shown that the factors just outlined might delay a reasonable person in filing the application. Accordingly, a reasonable cause has been established for failing to lodge an application within the prescribed time. -- 9 of 11 -- 10 Does the Commission have discretion to waive the time limit for applying? The Appellant submitted that in the event the Commission found his failure to lodge an application for compensation within the six months of the entitlement arising was due to mistake or a reasonable cause then the prohibition in s. 131(1) of the Act must be waived. The Appellant did not consider that any discretion reposed in the Commission pursuant to s. 131(5) of the Act. Both Q-COMP and Woolworths refuted this proposition for the reasons outlined (above). On any view of the relevant case law the view of Q-COMP and Woolworths must prevail. When outlining the submissions made by Q-COMP I included an extract from the decision in R v Workers Compensation Board of Queensland ex parte Heffernan (above) where Kelly J, with whom Stable SPJ and Dunn J agreed, which established that if mistake or reasonable cause was shown then it was not automatic that the time provision would be waived. The State Government Insurance Office was entitled to take into account other circumstances in deciding whether to waive the time period. That discretion exists was reinforced in both Core and ANZ (above). In the latter decision Hall P, after noting the power to waive at subsection (5) is subject to the subsection (1), said: "The discretion at subsection (5), where its exercise arises on an appeal de novo to an Industrial Magistrate, is a discretion vested in the Industrial Magistrate" at 1126. That decision was made before this Commission also had jurisdiction to deal with appeals. However, the reasoning would also be applicable to the Commission now that the Commission also has such jurisdiction. Further, Hall P also described as entirely unexceptional the way in which the Industrial Magistrate considered the circumstances which led to the failure by the worker to lodge the application on time when deciding whether to exercise discretion vested by the subsection. Woolworths said that some tension existed about the principles applicable to the exercise of discretion by the Commission. In my view the proper approach is that as the Commission is hearing the matter de novo it looks at the matters afresh. This allows the Commission to examine all relevant facts and circumstances to determine whether the discretion vested by s. 131(5) should be exercised. The matters set out in House v The King (1936) 55 CLR 499 at 504- 505 are for the Industrial Court when considering an appeal against a decision of the Commission or Industrial Magistrate. In my view so much was made clear in ANZ (above) at 1126 when Hall P said that "this Court can interfere only in the circumstances outlined in House v The King.". Should the Commission exercise its discretion to waive the time limit? Despite finding reasonable cause existed for not filing within the prescribed time period this is not a case where the Commission would consider it should exercise the discretion vested in it by s. 131(5) of the Act in favour of Mr Churchill. The reasons that the Commission declines to exercise the discretion in favour of Mr Churchill are largely those given by Q-COMP and Woolworths. In considering whether to exercise discretion I have had regard to the entirety of Mr Churchill's action from when he sneezed up to making the application for compensation. 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. Mr Churchill has not explained the delay between when Drs Watson and Coroneos pointed out the possible connection between work and the injury (April/May 2006) and his filing of the claim. Dr Coroneos believed that it would take six to eight weeks for Mr Churchill to recuperate from the surgery. There was some evidence about Mr Churchill suffering depression after the surgery. However, it was only a few days after Dr Byth examined Mr Churchill to determine whether to extend his referral to the psychologist that he sought his medical records. This does not support a contention, were one to be made by the Appellant, that this condition prevented Mr Churchill from or delayed him in taking steps in relation to lodging an application. Mr Churchill has not explained the delay from October 2006 through to December 2007. It is clear he had contemplated making a claim by October 2006 when he sought his medical records from the practice from which Dr Karunaratne worked. As noted by Q-COMP seeking his medical records was a sophisticated step and one indicative of a person intending to make a claim. Also by October 2006 the seriousness of his condition was apparent. He had undergone quite drastic surgery not usually performed on a young person. The factors which caused him not to lodge an application within the prescribed time were no longer present. -- 10 of 11 -- 11 After Mr Churchill was provided with his medical records he then proceeded to lose them. He did not seek a fresh copy for a further 2½ months. After that a further two months elapsed before Mr Churchill sought legal advice. These delays were not explained by Mr Churchill. There is a further unexplained delay between obtaining legal advice in March 2007 and lodging the application in December 2007. It could be reasonably inferred that the time limit would have been explained to him. Mr Churchill also did not show any real enthusiasm for prosecuting the application as it took him approximately seven months after receiving legal advice to lodge the application and a few months for him to lodge his application with the correct body after being informed he had filed with the wrong authority. In all of the circumstances the Commission considers that Mr Churchill was not serious about making an application for compensation. All of his actions in bringing the application were dilatory. Even were the period between the sneeze in December 2004 and October 2006 to be forgiven there is no explanation for any of the delays which then occurred. It is not that there is no reasonable explanation it is that there is no explanation. In deciding whether to positively exercise a discretion it is reasonable to expect that a worker would try to provide some explanation for why the application took so long to be made. In the absence of any explanation the Commission does not consider it appropriate for the discretion to be exercised in favour of Mr Churchill. The appeal is refused. The decision of the Review Unit, Q-COMP that the application for compensation is not valid and enforceable is confirmed. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2009 27 January and 2-4 February Released: 18 March 2009 Appearances: Mr R. Reed, Counsel, instructed by Woods Prince Lawyers on behalf of the Appellant. Mr S.P. Gray, Counsel, instructed by Q-COMP, the Respondent. Mr P. Rashleigh, Counsel, instructed by McInnes Wilson Lawyers on behalf of Woolworths Ltd. Government Printer, Queensland The State of Queensland 2009. -- 11 of 11 --