Cook v Q-COMP [2008] QIRC 1 (2008) 187 QGIG 220

[Extract from Queensland Government Industrial Gazette, Dated 18 April 2008, Vol. 187, No. 14, pages 220-225] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to Commission Collin Charles Cook AND Q-COMP (WC/2007/89) VICE PRESIDENT LINNANE 10 April 2008 Appeal against decision of Q-COMP - Application for compensation lodged out of time - Issue for determination was whether failure to lodge the application within time was due to mistake or reasonable cause - Appeal upheld - Workers' Compensation and Rehabilitation Act 2003 - s.131. DECISION [1] This is an appeal brought by Collin Charles Cook (Appellant) against a decision of Q-COMP (Respondent) pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (Act). The decision of the Respondent dated 19 September 2007 was to confirm a decision of WorkCover Queensland to reject the Appellant's application for workers' compensation on the basis that it was lodged outside the relevant period provided for in s. 131 of the Act. [2] Section 131(1) of the Act relevantly provides as follows: "An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement for compensation arises.". [3] There is no dispute as to the following facts:  the Appellant's entitlement to compensation arose on 18 July 2005 when the Appellant was assessed by Dr Sotade; and  the application for compensation was lodged by the Appellant on 12 February 2007 i.e. it was lodged more than six months after the Appellant's entitlement to compensation arose. [4] Section 131(5) of the Act provides that the insurer may waive the requirements of s. 131(1) of the Act if it is satisfied that a claimant's failure to lodge the application was due to mistake or a reasonable cause: see s. 131(5)(a) and (c). WorkCover Queensland found no mistake or reasonable cause to warrant waiving the requirements of s. 131(1) of the Act. The issue for determination then is whether the Appellant's failure to lodge his application within six months after the entitlement for compensation arose was due to mistake or a reasonable cause. [5] The onus rests with the Appellant to establish, on the balance of probabilities, that the failure to lodge an application for workers' compensation within the legislative timeframe was due to mistake or reasonable cause. [6] It is the Appellant's contention that he sustained an injury to his left and right shoulders when he fell whilst washing down a truck on 18 July 2005. At the time the Appellant was employed by Gehrke Grains & Transport Pty Ltd (the employer) on a casual basis. The nature of the Appellant's employment was that he would receive a call from the employer to work on an ad hoc basis whenever there was work available. At the time of the incident, the Appellant was paid on a "cash in hand basis" with no income tax being deducted. [7] After the fall on 18 July 2005, the Appellant's evidence is that he "laid on that railway sleeper - it seemed like an eternity to me. It could have been ... about 10 minutes and I was screaming for help and no one came". The Appellant says that he was in a lot of pain. He subsequently made his way to the employer's office and spoke to Julian Gehrke, Manager of the employer. According to the Appellant, Mr Gehrke was the only person in the office at that time. [8] It was the Appellant's evidence that he advised Mr Gehrke that he had "just fallen over the railway sleeper and I've hurt my shoulders" and asked if he had some Deep Heat. The Appellant says that Mr Gehrke then went into another room and came back and advised the Appellant that he could not find any. The Appellant's evidence is that he told Mr Gehrke not to worry, that he would take a couple of Panadol and see how things would go. He further told Mr Gehrke that he was "in trouble" but said that he would try and carry out his day's driving duties. The Appellant subsequently left the employer's office. [9] It was Mr Gehrke's responsibility to allocate tasks to the Appellant and to check that those tasks were performed. In his evidence Mr Gehrke could not recall the Appellant ever reporting to him that he had sustained an injury in the course of his employment in July 2005 nor could Mr Gehrke recall the Appellant asking for Deep Heat. It -- 1 of 6 -- 2 seemed, however, that Mr Gehrke only really took account of "serious injury" at the workplace e.g. where an ambulance has to be called. Mr Gehrke admitted that if a worker was okay then he didn't keep a record and he didn't get the worker to fill out any form. He himself could not recall filling out a report for a serious injury. Mr Gehrke's evidence is that if "people come to me with things that happen... if they're okay and they're right to keep going ... I wouldn't remember it, no". He agreed that it was "definitely possible" that if the Appellant had come to him saying that he had been hurt but also saying that he was okay to continue work that he might not remember it. [10] I accept the Appellant's evidence that he advised Mr Gehrke that he had suffered a work-related injury on 18 July 2005 and that Mr Gehrke did not recall the discussion because the Appellant also advised him that he would try and carry out his duties. The Appellant did in fact carry out his duties on that day. [11] The Appellant says that he then drove to Rosevale with a "lot of difficulty" but says that he did not advise anyone at the employer's business about those difficulties as there was no one around. The Appellant then completed a second load on that day and when contacted by Lyndall Tetzlaff about completing a further job he said he did not advise her of the difficulties he was having driving the vehicle. Mrs Tetzlaff is a director of the employer and the person responsible for the financial administration of the employer. When he was further contacted by Mrs Tetzlaff about performing a third job, the Appellant says that he advised Mrs Tetzlaff that he could not drive, tie any ropes or straps or change gears and says that Mrs Tetzlaff advised him to come back to the yard. The Appellant says that when he returned to the yard Mrs Tetzlaff "had a terrible look on her face" and told him that she was "sorry" on three separate occasions. [12] Mrs Tetzlaff, in her evidence, stated that she could not recall requesting the Appellant to complete a third job on that day stating that it was not her job to ask drivers to do jobs on a day-to-day basis. Similarly, Mrs Tetzlaff could not recall observing the Appellant in pain on 18 July 2005 and further, could not recall saying "sorry" to the Appellant on that day. In cross-examination, Mrs Tetzlaff did concede that she would be sorry if the Appellant was in pain but she could not remember saying sorry. [13] I accept that the Appellant did not, on this date, advise Mrs Tetzlaff that he had suffered a work-related injury. I do, however, accept his evidence about the conversation with Mrs Tetzlaff where she asked him to perform a third job and the conversation where Mrs Tetzlaff advised the Appellant that she was "sorry". The Appellant's evidence was consistent in this regard throughout the course of his evidence. It is doubtful, when Mrs Tetzlaff was unaware of the Appellant suffering a work-related injury, that she would recall the events of 18 July 2005 to the same extent that the Appellant would recall given that he had suffered an injury on that day. [14] It was the further evidence of the Appellant that, on the following Monday, he again spoke with Mrs Tetzlaff. The Appellant's evidence is that he received a telephone call from Mrs Tetzlaff on that day asking after his health. He tried to explain the injury he had suffered to Mrs Tetzlaff but she could not understand his description. The Appellant then told Mrs Tetzlaff that he would get his wife to drive him and he would come to the office with his x- rays and ultrasound results. His evidence is that he then attended at the employer's office on that day and he showed Mrs Tetzlaff the results of his tests. The Appellant says that it was during this conversation that the issue of the costs of medical treatment arose and Mrs Tetzlaff advised him to seek reimbursement of his medical expenses from Medicare as he was not on the computer as an employee. It is the further evidence of the Appellant that Mrs Tetzlaff gave him $200.00 on this occasion to cover his out-of-pocket expenses. [15] Mrs Tetzlaff in her evidence says that she did not become aware that the Appellant had suffered a work-related injury until after his first operation which was on 9 September 2005 when the Appellant came to the office. She agreed that the Appellant could have spoken with her at the office on the Monday following the injury. I accept the Appellant's evidence in this regard that he did come to the office following receipt of a telephone call from Mrs Tetzlaff and that he did bring his test results with him. [16] Mrs Tetzlaff denied advising the Appellant to claim his expenses from Medicare. Mrs Tetzlaff agreed that she had paid the Appellant $600.00 in cash to help with his out-of-pocket expenses but says that this money was paid to the Appellant when he visited the office after his first operation i.e. after 9 September 2005. The Appellant's evidence is that this operation was performed in the public hospital system. [17] The Appellant says that he relied upon advice given to him by Mrs Tetzlaff that he should seek reimbursement of his medical expenses from Medicare because he was not on the computer as an employee and that, as a consequence, he did not pursue a claim for compensation at this time. The Appellant was of the view that if he was not on the computer as an employee, he was going to have a "hard time saying" that he was working for the employer at the time he got hurt. -- 2 of 6 -- 3 [18] The Appellant, however, did not tell Mrs Tetzlaff at this time that he had fallen at work and had injured himself as he assumed that she already knew of his injury given that he had informed Mr Gehrke on 18 July 2005. On the basis of this evidence, the Respondent submits that there was no basis for Mrs Tetzlaff to suggest to the Appellant that he should make a claim for compensation. The Appellant's evidence is that Mrs Tetzlaff advised him, on this day, to go through Medicare. The Respondent contends that nothing sinister should be inferred from this advice of Mrs Tetzlaff as she was not aware that he had suffered an injury at work. [19] If the conversation with the Appellant occurred on the Monday following the injury then I agree with the Respondent's submission that there was nothing sinister in Mrs Tetzlaff's advice to the Appellant to seek reimbursement through Medicare if she was unaware it was a work-related injury. What is concerning, however, is the Appellant's evidence that Mrs Tetzlaff told him, in connection with seeking reimbursement through Medicare, that he was not on the computer as an employee. Mrs Tetzlaff in her evidence said she did not suggest to the Appellant that he claim workers' compensation at any time because "it was his choice not to be on the books". Even if I accept Mrs Tetzlaff's evidence that she only became aware that the Appellant had suffered a work-related injury in September 2005 she should, at that time, have provided the Appellant with the appropriate forms to apply for workers' compensation. At no time did she provide the Appellant with the appropriate forms. [20] In fact, it was Mrs Tetzlaff's evidence that she did not, as an employer, report the injury to WorkCover Queensland as the Appellant "wasn't an employee" and therefore "wasn't entitled to compensation". She obviously had a belief that the Appellant was not entitled to compensation. [21] Clearly there was, at some time, a conversation between the Appellant and Mrs Tetzlaff about the Appellant being out-of-pocket with the medical expenses. Otherwise, why would Mrs Tetzlaff have provided the Appellant with the $200.00 or $600.00 to cover such expenses. I accept the Appellant's evidence that Mrs Tetzlaff did suggest to him that he seek reimbursement from Medicare. Given Mrs Tetzlaff's view that the Appellant wasn't an employee and therefore wasn't entitled to compensation, I prefer to accept the evidence of the Appellant i.e. that Mrs Tetzlaff did make the comment that "he was not on the computer as an employee". The Applicant did seek reimbursement of his expenses from Medicare. [22] Whether the comments by Mrs Tetzlaff were made on the Monday following the injury, or at a time after the Appellant had been operated on for the first time, I accept that the comments about seeking reimbursement from Medicare because the Appellant was not on the computer as an employee were made in the same conversation. Any suggestion made to the Appellant that he was not an employee was in fact misleading and could have led the Appellant to believe that he would have difficulty in pursuing a claim for workers' compensation. Even if this conversation occurred in September 2005, the six month time period had not elapsed. According to the Appellant it was at this time that he began to appreciate the gravity of his injury. [23] It is apparent that the Appellant was employed on a rather irregular basis by the employer prior to the 18 July 2005. Exhibit 2, which is correspondence from Mrs Tetzlaff to WorkCover Queensland indicated the monies that the Appellant had earned since going onto the "cash basis" in the beginning of 2005. I accept that Mrs Tetzlaff does indicate that the sums were "not conclusive" and that there "could be other payments not recorded" but the figures included do show that the Appellant was a very irregular worker e.g. the following payments were made on the dates indicated (4.2.05 - $450.00; 18.3.05 - $155.00; and 15.4.05 - $300.00). Yet on the evidence of Mrs Tetzlaff she paid the Appellant an amount of $600.00 to cover his out-of-pocket expenses. This was more than he had earned from the employer in the months of February, March and April of 2005. [24] The rather irregular employment of the Appellant together with the comments from Mrs Tetzlaff that the Appellant was not on the computer as an employee, is likely to have led the Appellant to believe that he was going to have a hard time convincing WorkCover Queensland that he was a worker employed by the employer. I accept that the Appellant knew at all times that if he was an employee of the employer that he was entitled to make a claim for workers' compensation. The issue for the Appellant was whether he could prove that he was an employee at the time of the injury. [25] At the time of the first operation, the Appellant was required to complete a patient election form which asked whether the injury was a work-related injury. The Appellant ticked "no". His evidence is that he did so as he had been claiming his medical expenses through Medicare and he felt that he could not prove that it was a work injury as "his name was not on the computer". I accept the Appellant's explanation of his completion of the patient election form. [26] Following the first operation in September 2005, it appears that the Appellant regularly attended at the employer's office as and when he visited the physiotherapist for treatment. The Appellant's evidence is that he had been asked by Mrs Tetzlaff to keep her informed of his progress. Given the irregular employment of the Appellant prior to the injury, it is doubtful that an injured worker would regularly attend at the employer's place of business to keep them -- 3 of 6 -- 4 updated as to his progress unless he had been asked by the employer to inform them of his progress. Sometime in November 2005 the Appellant received a medical clearance to return to work. He returned to work at the employer sometime in December 2005. [27] Some four and a-half months after the incident, the Appellant made telephone contact with a firm of solicitors at Gatton. The Appellant says that he spoke to someone at the firm as he "wanted to find out what my rights were as in having a fall on someone's property". The Appellant was advised that he had three years to put in a claim and was further advised that the person giving the advice didn't think that he had a case but suggested he could get a second opinion. The difficulty is that the Appellant did not mention anything in this telephone conversation about the injury resulting from a work-related accident. As a result, the Appellant thought that he had three years within which to make a workers' compensation claim. [28] On the second day back at work, the Appellant's evidence is that he travelled to Gatton with Greg Tetzlaff, a director of the employer, in Mr Tetzlaff's work car. It is the Appellant's evidence that Mr Tetzlaff told him about how his first marriage "broke up". The Appellant detailed some of that conversation in his evidence. According to the Appellant, Mr Tetzlaff stopped talking about the issue of his first marriage and then went straight into saying "I've already had two guys in the yard try and sue me. It didn't work because we have our ways". The Appellant then said that Mr Tetzlaff told him "don't put in a claim". The Appellant stated that he took that as a threat not to make a workers' compensation claim and he felt intimidated by Mr Tetzlaff. [29] It was the Appellant's evidence that he then recalled an earlier incident with Mr Tetzlaff when the Appellant had spoken to him on a Saturday (Mr and Mrs Tetzlaff were having a garage sale) about an incident in the employer's yard on the Friday evening when the Appellant believed that someone was going through the employer's trucks. When the Appellant told Mr Tetzlaff about the incident Mr Tetzlaff said "don't be a hero. I've got a shotgun. I'm not afraid to use it and you can't miss with a shotgun". [30] It was the two conversations together which caused the Appellant to feel intimidated by Mr Tetzlaff. Once again the Appellant's evidence in regard to these two conversations was consistent and he was able to provide ancillary details e.g. it was his second day back at work; he and Mr Tetzlaff were driving to Gatton although he could not remember the actual job; a conversation occurred with Mr Tetzlaff on a Saturday; and that Mr and Mrs Tetzlaff were having a garage sale. [31] Mr Tetzlaff's evidence was that he could not recall the discussion with the Appellant about the Friday night concerning the going through of the employer's trucks although he admitted that the employer had experienced that problem. Further, Mr Tetzlaff could not recall telling the Appellant that he had a shotgun and not to be a hero. Mr Tetzlaff could also not recall having a conversation with the Appellant in December 2005 whilst travelling to Gatton. Mr Tetzlaff did, however, deny telling the Appellant not to make a claim and further denied telling the Appellant that there had been "two guys try and sue us" in the past and we "have our ways". Mr Tetzlaff did admit that there had been two WorkCover Queensland claims - one driver had a hernia and one had back trouble. Mr Tetzlaff further stated that he thought that WorkCover Queensland had accepted those claims. [32] There had been two WorkCover Queensland claims made against the employer. The exact number that the Appellant recalled from the conversation he says he had with Mr Tetzlaff. The Appellant had no reason to know that two such claims had been made against the employer unless he had been informed about them. Once again, I prefer the Appellant's evidence in regard to the two abovementioned conversations he had with Mr Tetzlaff and accept that the Appellant was told not to put in a workers' compensation claim. The manner in which the Appellant was told not to put in a workers' compensation claim, together with the fact that he had been told by Mr Tetzlaff that he had a shotgun, had the potential to cause the Appellant to feel threatened and intimidated. [33] Sometime after the discussion with the solicitor at the Gatton firm, the Appellant had a conversation with his brother-in-law. By this time he realised that he was never going to be able to work again and decided that he would pursue a claim for compensation. The Appellant had not worked for the employer since March 2006. The Appellant's evidence is that he did not seek legal advice earlier because of the intimidation of him by Mr Tetzlaff. It was then, in October 2006, that he sought advice from his current solicitors i.e. well outside the six month time limit period. As a result of the advice provided the Appellant completed an application for workers' compensation on 8 November 2006. Shortly after doing so the Appellant underwent surgery for a third time. [34] There is no explanation for the delay once the application form had been completed on 8 November 2006 and the actual lodging of the form. [35] I accept that the Appellant was not consistent in his evidence about when he first became aware that he could make a claim for workers' compensation. He had previously had a workers' compensation claim in New South Wales but as he stated, the then employer had visited him in hospital with the relevant workers' compensation forms which he -- 4 of 6 -- 5 then completed and the employer representative then dealt with the application. The claim was made in 1986 and the Appellant was off work for some twelve years as a result of the injury sustained. The issue whether he had a workers' compensation claim may not have entered his mind either on the day of the incident or shortly thereafter. By the time he had received the x-rays and the ultrasound results he was aware that he had suffered an injury for which he may need compensation on 18 July 2005. [36] On the Appellant's evidence, it was at this time that Mrs Tetzlaff made the comment about claiming from Medicare as his name was not on the computer. This information clearly made him doubt whether he could prove that he was an employee of the employer. As I have indicated previously, I accept that the Appellant knew at all times that if he was an employee of the employer that he was entitled to make a claim for workers' compensation. The issue for the Appellant was whether he could prove that he was an employee at the time of the injury. [37] The Appellant did not work during the period 18 July 2005 to sometime in December 2005. During the time prior to the first operation on 9 September 2005 the Appellant says he was in great pain. Sometime after the first operation he realised the severity of the injury and telephoned a firm of solicitors in Gatton but did not inform them that the injury occurred at work. They then advised the Appellant that he had three years within which to make a claim. This of course was correct advice when the solicitor was unaware that the injury suffered by the Appellant was a work-related injury. [38] At no stage did the employer report that a work-related injury had occurred even though, in its covering letter to WorkCover Queensland dated 15th February 2006 (Exhibit 2), Mrs Tetzlaff stated that the Appellant had reported the injury to them when he came into the office with his shoulder in a sling after he had the first operation saying the injury occurred as a "result of falling over a sleeper while he was washing a truck". Thus the employer was aware that there was a potential workers' compensation claim at the latest in September 2005 i.e. well within the six month period after the entitlement to compensation arose. That correspondence also states that the Appellant was "employed" by the employer. However, even during the course of the hearing Mrs Tetzlaff said that the Appellant "wasn't an employee" and therefore "wasn't entitled to compensation". [39] In not reporting the incident to WorkCover Queensland, the employer was obviously unaware of its obligations under the Act (even though two other employees had made successful WorkCover Queensland claims previously) or the employer was under the mistaken impression that the Appellant was not an employee: see the evidence of Mrs Tetzlaff. [40] I found the Appellant to be a credible witness and I found his evidence to be generally consistent. [41] As Sholl J stated in Quinlivan v Portland Harbour Trust [1963] VR 25 at p. 28 a "reasonable cause" is one: "Which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man.". [42] The Appellant has established that:  he informed Mr Gehrke on the morning of the incident that he had injured himself falling over a sleeper at work;  Mrs Tetzlaff did, within the six month period, tell him to claim reimbursement of his medical expenses from Medicare as his name was not on the computer. This the Appellant understood to mean that he was not an employee of the employer;  that advice given by Mrs Tetzlaff was misleading although I accept that she honestly believed that he was not an employee at the time and that the Appellant was not able to claim workers' compensation;  he sought telephone advice from solicitors in Gatton, within the relevant six month period, but unfortunately failed to advise the solicitor that he was telephoning in relation to a work-related injury and he was told that he had three years to make a claim. Whilst a legally qualified person would know when seeking legal advice to indicate that the injury arose at work, I accept that the Appellant would not have known the importance of such information when seeking the advice; and  when he returned to work in December 2005 (again within the six month period) he was told by Mr Tetzlaff not to make a claim and the Appellant felt threatened and intimidated by him as a result of an earlier conversation had with Mr Tetzlaff wherein he was told that Mr Tetzlaff had a shotgun. -- 5 of 6 -- 6 [43] These matters all occurred within the six month legislative period. They are the kind of matters which might be expected to delay the giving of notice by a reasonable person and therefore establish that the Appellant had reasonable cause not to lodge his application for workers' compensation within the legislative timeframe. I am thus satisfied that there is a proper basis to waive the time limit as provided for in s. 131(1) of the Act. [44] In addition, there is the admission in Exhibit 2 by the employer that it was aware of the Appellant's claim that he had suffered a work-related injury well within the six month period but did not report this to WorkCover Queensland. [45] I uphold the appeal. I set aside the decision of Q-COMP dated 19 September 2007 and determine that the Appellant's application for compensation is made in accordance with s. 131 of the Act. D.M. LINNANE, Vice President. Hearing Details: 2007 29 November 2008 9 January 16 January Appellant's written submissions 23 January Respondent's written submissions Appearances: Ms. A. Brook, Counsel, instructed by Jon Kent Lawyers for the Appellant. Mr. S. McLeod, Counsel, instructed by Q-COMP for the Respondent. Released: 10 April 2008 Government Printer, Queensland The State of Queensland 2008. -- 6 of 6 --