Australia and New Zealand Banking Group Limited v Q-Comp [2004] ICQ 20 (2004) 175 QGIG 1125

2 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1125 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Workers’ Compensation and Rehabilitation Act 2003 – s. 561 – appeal against decision of industrial magistrate Australia and New Zealand Banking Group Limited AND Q-Comp (No. C5 of 2004) PRESIDENT HALL 19 March 2004 DECISION Counsel are agreed that paragraph 3 of the appellant’s outline of submissions substantially encapsulates the background to this matter which arose under the WorkCover Queensland Act 1996. At paragraph 3 the appellant recounts: “3. The background to this matter is as follows: (a) On 1 st June, 2001 Bugeja made an application for compensation as a result of an incident that occurred on 22nd May, 2001. She alleged that she suffered ‘trauma (acute stress reaction) adjustment disorder’ as a result of being accused of theft, ‘held against my wish’ and being distressed as to the position of her children. ‘All of these events and more have made me and my children an emotional mess and very depressed and unfit to carry out my duties.’ (b) Bugeja was examined by Dr Sue Niven General Practitioner at Wynnum on 30th May, 2001. This doctor has provided a medical certificate indicating that the worker suffered ‘an adjustment disorder and acute stress reaction’ as a result of the subject ‘incident at work 22-6-01’ (Ex. ). (c) The claim by Bugeja was rejected and the statement of reasons of the Appellant dated 17th of August, 2001 concluded that it had taken reasonable management action conducted in a reasonable way in respect to the investigation of matters that occurred on 22nd May, 2001. It was considered that the worker did not suffer an ‘injury’ as defined in s. 34 WorkCover Queensland Act 1996. (d) The worker sought to review the aforementioned decision. By letter dated 4th February, 2002 Patricia Weir, Review Officer, Q-Comp confirmed the Appellant’s decision and the claim was rejected. There is no appeal from this determination. (e) The worker made a further application for compensation dated 15th April, 2002. On this occasion she claimed that she suffered distress as a result of the confrontation in the work place and thereafter was travelling on Wondall Road when she ‘misjudged the curve in the road causing my car to mount the footpath and just missing an electric pole. I almost killed myself and my children.’ It is noteworthy that she had suffered a post-traumatic stress disorder as a result of a motor vehicle accident occurring in 1994. (f) The second application for compensation was unsuccessful. The Appellant considered that the worker was not eligible to submit a second claim for the events were considered in the first application. Further, the Appellant would not waive compliance with the requirement that an application for compensation be lodged within six months after the entitlement to compensation arose as it was not satisfied that the worker had failed to lodge an application due to mistake or other reasonable cause. (g) The Appellant did not consider that she was eligible to submit a further application and considered the matter finalised by its previous determination. (h) On 7 th June, 2002 the worker made an application for review. This review was successful when Robyn Archibald, Review Officer determined that her second application for compensation was valid and set aside the decision of the Appellant to reject the claim. Archibald concluded that the late lodgement of the application for compensation should be ‘waived’ and ‘the injury’ component of the application be determined’.”. -- 1 of 2 -- 1126 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 2 April, 2004 The appellant exercised its right to appeal to the Industrial Magistrates Court. The Industrial Magistrate summarised the issues before that Court as follows: “1. Has the claim the subject of the second application previously been determined in the first application 2. May the requirement to lodge the second application in 6 months be waived under section 158(5) 3. Is the second application invalid because there was no accompanying certificate as require by section 159(3)”. The Industrial Magistrate decided all issues adversely to the Appellant. Only issues 2 and 3 have been agitated on the appeal to this Court. Non-compliance with the six month time limit at s. 158(1) is a matter of some gravity. By the express terms of s. 158(1) a claim is valid and enforceable only if the time limit is met. And the subsection means what it says, Thompson v. WorkCover Queensland [2002] I QdR 461 at 462 per Helman J. The subsection is, however, subject to the power to waive at subsection (5). 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. This Court may interfere only in the circumstances outlined in House v. The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ. Here the Industrial Magistrate waived time on the basis that the failure to apply within the six month time limit was a mistake within subsection (5)(a), and on the basis that the failure to apply for two months after the worker become aware of the mistake was due to a reasonable cause within subsection (5)(c). As to the first matter the Industrial Magistrate said (at p.6): “Bearing in mind the employee was in fact suffering a psychological disorder, was handling the matter herself, had raised the issue of the ‘near miss’ in the first application, it is quite possible that, in her mind, the events of the entire afternoon of 22 May 2001 (at the bank and on the way home) were being considered by the first application. That would be a mistake on her part bearing in mind I have found the ‘near miss’ was not considered by the first application.” The evidence was that until the worker had spoken to Miss Weir of Q-Comp that she had thought that first application included, not only the incident at the bank when she was interrogated by bank employee’s, but also the incident on her way home from work. Given the evidence before the Industrial Magistrate about the worker’s psychological disorder it seems to me that the Industrial Magistrate’s finding of a “mistake” was plainly open to His Worship. And in fairness to the worker, I should add that the handwritten statement by the worker which accompanied her first application for compensation included the passage: “I was in an unfit state to be driving a car as I was in shock and proved this by allmost (sic) having an accident on the way home.” Plainly there was some basis for a “mistaken” belief that all incidents were covered by the first application. As to the finding of “reasonable cause” it seems to me that too much should not be made of the reasonable mind. The limitation period and the power to waive the limitation period are to operate in circumstances in which workers suffering physical, psychiatric and psychological injuries are seeking to claim benefits. It will frustrate the purpose of the Act if a failure to meet the time limit attributable to the very “injury” complained of is to be denied pardon because a reasonable person who (of course) would not be suffering from the “injury”, would have met the time limit. The way in which the Industrial Magistrate dealt with s. 158 was in my view entirely unexceptional. I accept that s. 159 requires that an application must be accompanied by a certificate in the approved form by the doctor who attended the claimant worker. The controversial issue is the consequence of non-compliance. It is to be noticed that unlike s. 158(1), s. 159(3) does not provide that an application is to be “valid and enforceable” only if accompanied by a certificate. It is also to be noticed that whilst there is power at s. 158(5) to waive non-compliance with the limitation period at s. 158(1), s. 159 provides no power to waive. It seems to me that the omission of the power to waive is explicable only on the basis that no more than compliance in substance is required, compare Q-Comp v. Baulch (2004) 175 QGIG 978. The decision of the Supreme Court of the Northern Territory in Collins Radio Constructors v. Shirley Day [1998] NTSC 15 (26 March 1998) does not advance the appellant’s case. The case concerned a provision in the Work Health Act (Northern Territory) which permitted an employer by delivering documents to a worker to pre-emptorily deprive a worker of the benefit of weekly compensation secured to the worker, e.g. by court decision. The decision of the Full Court recognised that interference with personal rights requires strict compliance with the whole of the conditions attaching to it. The same considerations do not apply to s. 159 which deals with procedural steps to be taken in attempting to secure rights. The Industrial Magistrate plainly applied the test of substantial compliance. His Worship said (at p. 9): “With respect to the medical certificate not physically accompanying the application, I am satisfied the reference in the letter to the certificate being already with the employer is sufficient compliance with section 159(3)(a). The purpose of the provision is to give the employer access to the medical certificate. That was achieved by referring the employer to the medical certificate it already had in its possession.”. There was no error of principle. The Industrial Magistrate has not allowed extraneous or irrelevant matters to guide the decision making process. There is no mistake of the facts. No material consideration was left out of account. The decision is not plainly unreasonable or plainly unjust. It would be wrong for this Court to interfere with the decision. The Industrial Magistrate accepted and (I accept) that the reference to a medical certificate at s.159(3) is a reference to a “relevant” medical certificate. The Industrial Magistrate also accepted that the medical certificate already in the employer’s possession was a relevant certificate. It diagnosed that the worker was suffering from an “adjustment disorder and acute stress reaction” on 30 May 2001 and eight days earlier. Whilst it may be conceded that the nature of the disorder diagnosed by the general practitioner at Wynnum is not the disorder subsequently diagnosed by Mr Cross (the clinical psychologist), the symptoms are very similar. The general practitioner does not attribute the worker’s condition to the interrogation at work. The general practitioner does no more than note that the worker attributed her condition to the interrogation at work and that the cause nominated by the worker was consistent with the disorder diagnosed by the general practitioner. So indeed it was. It was the evidence of Mr Cross that because the worker focussed strongly on the interrogation at work he proceeded for quite some time on the basis that that was the cause of decompensation. It was only after Mr Cross become aware of the true nature and impact of the “near miss” that he revised his opinion. The Industrial Magistrates conclusion that the certificate was relevant was plainly open to His Worship. I dismiss the appeal. I reserve all questions of costs. Dated 19 March 2004. D.R. HALL, President. Released: 19 March 2004 Appearances: Mr M. T. O’Sullivan, instructed by Hunt and Hunt Lawyers, for the appellant. Mr P. Rashleigh, directly instructed for the respondent. -- 2 of 2 --