Core v Workers' Compensation Board of Queensland [1992] ICQ 7 (1992) 140 QGIG 35

34 QUEENSLAND GOVERN MENT IND USTRIAL GAZETTE {8 May, 1992 8 May, I 992] QU EE NSL AN D GOVERNMENT INDUSTRIAL GAZETTE 35 THE INDUSTRIAL COURT OF QUEENSLAND IND U STRIAL RELATIONS ACT 1990-199! Workers' Compensation Acr 1990 s. 6.7 - appeal from decision of industrial magistrate Desleigh Anne Core AND Workers· Compensation Board of Queensland (No. C37 of 1991) JUSTICE MOYNIHAN, PRESIDENT 24 April 1992 Appeal - Workers' Compensation - Injury - Application - Date of Filing - Medical Treatment not sought - Employment - Employment Type - Incapacity - Act - Repealed - Deter- minations - En titlements - Compensation - Limitation of Time - Va lid and Enforceable Application - Waiver - Decline to use p0wer of wa iver - Appeal Upheld - Valid and Enforceable Appl ication - Application to be d ete rmined under Workers' Com- pensation Ac t of I9 t 6. JUDG M ENT Th is is an appe.a l from the rejection of the Applicant's claim for workers· compensation. The claim was made on 13 February 199 l in respect of an inj ury suffered on 8 November 19 86 in the course of the Appl icant's employment on a ca11le property. She was inj ured wh en a horse fe ll. T he Industrial Magistrate made a number of findings wh ich it is pertinent 10 set out before proceeding further. He found that the Applicant made no claim for compensation and sought no med ical advice or treatment in relation to her injury a t the ti me that it was sustained although, as an industria l magistrate found , she suffered pain from the time of the fall. She carried on "doggedly" wi th her duties until 16 July I 988. On that date she received treatm ent with prescribed medication by Dr Crawshaw for her back injury and associated pain and x -rays were arranged. The Appl icant was told to rest but was unable to do so because of the demands o f her situation. Th.: App li cant left the emp loyment she was following when she was injured in around January. 1989 or a month or so beyond that. The Industrial Magistrate went on to find that at no s tage after that to which I have j ust referred could the App licant. as he put 11 "on her evidence" follow employment comparable to that she was engaged in at the t ime she was injured. There were a lso fin dings to the effect that the Appli cant undertook various courses to equip her to follow clerical work wh ich she did until 26 Januarv 1991. • The Magistrate went on to find: . The back injury sustained by the Applicant during her emp iovment in November. 1986 was the certified medical condition leading to her treatment from medical practition- ers and others from that da te up until the time she lodged hN claim with the Respondent Board.". The significance o f th is finding will be apparent when the t erms of the leg islation are considered. The claim, it will be recalled, was lodged on I3 Fe bruary I 99 I. The Magistrate found that from around about January , 1989 (when she_lcft the employment sbe was in a t the ti me of her accident) un11 I June. 19 90 the Applicant suffered back pain and sought treatmen t and ob ta ined temporary relief from medical practitioners, agencies and chiropractors. He found that in June 1990 she con- tacted a Dr _ Lowe who advised surgery if more conservative t re atmen t failed. The Applicant consulted a Dr Watson on I t February 199 1 o n a refe1Ta l from a Dr Cahill. Dr Watson rec- ommen_dcd immediate su rgery and certified that the Applicant was totall y incapacita ted for work for the period 26 January 1991 to 26 Apri l t 99 l. The Magistrate found that the Applicant sough t and received assessmen t fo r her back injury on 16 July l 988 when she visited Dr Crawshaw. Dr Crawshaw's " assessment of her injury rema ined unchanged by later medical examinations and opinion although by the time she consulted Dr Watson her symptoms had become more severe". The Magistrate found that the Applicant's entitle- ment to workers' compensation arose on the day before her visit to Dr Crawshaw, that being, as he found, the day she last worked in terms of the legislation to which it will be shortly necessary to turn. On the view he t ook her c la im should have been pursued with the Board within 6 months of that date, and was not , wi th the consequence that he dismissed i t. It remains to say that the Magistrate appears to have regarded the Applicant as a credible witness and that she has ··stated good and acceptable reasons" for not lodging her claim a t the time of her injury. Section 1.3( I) of the Workers' Compensation Act 1990, repeals the Workers' Compensation Act 1916. There can be no doubt that the Applica nt's injury pre-da t ed the 1990 Act or that the App li cant's claim was made after the commencement of that Act. In tha t context the Applicant's claim fell: " . . . to be determined, and benefits (i f any) are to be paid in respect of it in accordance wi th The Workers' Compen· sa1ion Act of 1916 as amended and in force at the time the injury to which the application relates was suffered, subject to subsection (2).". Subsection (2) is of no present concern. Section 5.1 of the I 990 Act provides that: "A worker who suffers an injury arising out of or in the course of the worker's employment is entitled . . ., subject to this Act, to be paid from the Fund, compensation in accordance with th is Act.''. By section 5.9(1) of the 1990 Act, a worker's entitlement to compensati on under the Act "in respect of an injury arises on the day next following the day on which the worker suffers the inj ury.". By subsection (2), if the injury: " . . . results in total or part ia l incapacity for work at a time later than the day on which the injury is suffered, the incapacity is an injury in respect of which compensation under th is Act is payable, which injury - (a) in the case of an incapacity that causes the worker to cease work, is taken to have been suffer ed on the dav on which the worker last worked: ' (b) in the case of an incapacity that does not cause the worker to cease work. is taken to have been suffered on the day on which the worker last worked before seeking assessment by a registered medical practit ioner in re lat i on to the inc.apacity. ". Subsection (3) of the section provides that a worker's enti tlemen t to compensation under the Act in respect of an injury suffered does not arise unti l the day on which the worker is assessed bv a registered medical practitioner as incapaci tated for wo rk by reason of the injury. The Magistrate 's findings, it will be recalled, were in certain respects referable 10 these p rovisions. Section 6.2 of the 1990 Act is expressed 10 be in respect of lim itation of time for app lying for worker's compensation: it provides: "(I) An app lication for compensation is not valid and the claim thereunder is unenfo rceable unless the app lication is lodged as prescribed within 6 months following the day on which the injury occurs or the entitlement to compensation arises. (3 ) In relatio n to a pan ic ul ar applica ti on . the Board may (a) waive the provisions of subsection ( I ). if the Board is sat is fied that failure to lodge the applicati on in the prescribed period was due to - • a reasonable cause;". In this case the Board declined a wa iver. -- 1 of 2 -- 36 QUEENSLAND GOV ERNM E T INDUSTR IAL GAZETTE [8 Ma). t 992 It 1s matcnal 10 note that in its ad vice of IS March I 9ll I to the apphC3nt the Board advised that the application was not valtd under section 6.2 and went on to recite that...after due consid· erntion.. it had been decided not 10 v.a1ve the provisions of the section. As she was entitled. the App)lcanl referred this decision to an Industrial Magistrate who v. 1th an outcome ,, hich hai. led lhc limits of sound disere11ona~ Judgment in the sense to "hi ch I ha \'e previouslt rcfcrrl-d. 10 this appeal It seems 10 me that the effect of the leg1slat1H p ro,isions 10 "hi ch I ha, e referred \\3 S that the validity and enforceability of th e Applicant's claim fell 10 be determined under the 1990 Act (see sccuon 1.3(1) and 6.2 of that Act) A ,ahd and enforceable appli- ca 11on ha, ing been made conformably with section 6.2 11 fell. in the present case. 10 be ..determined·· (sec section 6.6 of the t 990 .\et) in accordance wt1h the 1916 Act in force at the time the injury 10 which the application related was suffered. Sec section The circumstances being those 1 haH' ou tlined. 11 seems 10 me that the appropriate outcome of these proceedings 1s 10 uphold the appeal. to wai\'e the provisions of sccuon 6.:!( I) of the 1990 Act so as to make the A.pplicant"s applicati on for compensation valid and enforceable \\ith her cn111lemen1 to be dt> tenrnn cd and benefi ts 10 be paid in ac-cordancc w11h the prons10M of the 1916 .\ et in force at the ume the in3ur. "as. 35 found b~ the !'v1agi~tratc. suffered. Dated 1h1s 1wen1 y-founh day of A.pril. I99 :! . t.P . '.\IIOYNIH~"-i President. 1.9 of the 1990 ACI. In other words section 6.1 of the t 990 Act determined when a cl aim had 10 be made in order 10 be \ahd and enforceable. Section 5.1 and 5.9( I) deal with ent itlement to compensation in respect of an rnJUf)' (in contradiction 10 section 6.2 wlllCh deals with the Appl'ara11ce r: - Mr R .D Pack (instructed bv Messrs Thompson Kini!, Co nnoll~ l for Dcslcigh Anne Core. • 11me for lodgment of claims). In this case the Applicant's enti tlemen t (not wheth er the cl aim h ad been lodged in 11me so as IO be vahd and en fo rceable) fell to be determ ined and the benefits paid 1n accordance "ith the l 916 Act as II stood when the Applicant was injured. Mr l)_ Grealy (instructed by the Crown Sohcnor) for the \"-'or l-.ers· Compensauon Board of Queensland. The potential for hardship inherent in the application of ,;ection 6.2( I) in panicular c- ircumstances is mitigated by the provision for waiver under sec1ton 6.2\3). ln his published reasons. which no doubt reflect the course of the proceedings before him. the Industrial '.'.fagis1ra1e made no menu on of the Board·s refusal to "a1,·e the provisions of section 6. 2( I) "h1ch 11 will recall ma )' be done if reaso nable cause 1~ shown. He did . however. as I have alread) indicated, conclude that the Apphcant had stated good and acceptable reasons for not lodging her claim at the ti me at which her inJury arose. Rather 1ha11 10 addre~s the issue of waiver. ho"c,cr, he then v.ent on to addrcs~ 1hr question of the Applicant's being o bliged to satisfy him lhat the claim was valid if lodged wtthin six month~. AS I S.1) 1ha1 doubtless reflected the course of proceedings. It \\3S submitted that the question of th e exercise of the Bo~rd·s discreuon as to whether a waiver should be granted or not. was not a mauer which attrac-ted this Court' s appellate jurisdic 11 on. I doubt that 1ha1 1s so. smce the refusal 10 waive 1s ..a dccmon .. in terms of section 6.7( I) of the 1990 Act. On the other hand. there 1s no doubt that a successful appeal against the exercise of such a discreuon is attended with a ll 1hc constraints to which such appeals arc subJectcd. In other words. it must be demonstrated that the exercise of the discretion was fla wed by taking account of some impe rm issible factor or by fa1h ng 10 take account of a factor v. hich ought to have lx.-en taken into account Moreover. a discretion ma) be regarded as hav1ni demonstrably miscarncd 1f II is so at odd~ wnh the proper exercise of the discretion in the circumstances of the case: the dC<"ision i~ sh o"n 10 be ·· outsi de the limits of a sound d1scrc11onary iudgmcn1.. - see .\face & ..tnor _,•• ,\/urrar (1954- SS ) 92 C.L.R. 370 and ,\orliss-, - Svr/1s.1 (1966) 161 C.L.R. 5 13. Operattvc Date: / A :\ppcal - D.t\. Core , \! C- 80 It 1s con,cnient 10 recapttulatc on what I ha,e said so far. Wh ether or not th~ Applicant's claim for compensation wa~ ,alid and enforceable fell to be determined 111 1e rms of sectio n 6. 2( 1) of the I 990 .\ct. construed in the hght of the pro"sions of that .\ct includmg section 1.3 and 5.1 and 5.9 In the circumstances of 1his c a~c a determination that the claim was not valid and enforceable o n account of its being lodged ou t of time required the Board. and subsequently the Magistrate 10 consider the exo.:rcise of the power of waiver conferred by section 6.2(3)(a) of the 1990 .A.cl. Th e Board declined to c~crci~ it~ power of waiver although II did not state its reason~ fo r 1ha1. The reference from the Board to the Industrial Magistrate was ofobJet'tton to the d tcision of the Board. It ma~ be taken as encompassing the decision not to exercise the power to "a1ver. The Magistrate. influenced no doub t as I have already indicated. b> the cour~e of 1he proceedings did not consider 1h1s aspect of the mancr . E,er) finding made b~ the ~faF,1stratc. howe\'cr. seems 10 me t◊ suppon the c'{ercise of the power of waiver in the .\pplicant's fa, our. As I ha\'e alread) 111d1cated, the ~lagistratc, "ho had 1hc advantage of s«in~ her tv' ing evidence. Ob\'iously regarded the A.pphcant as a credible w11ness . I le stated 1ha1 .. her resilience was 10 be admired... There 1s. so far as tht' material before me re, eals. no panicu lar co nsideration c ontra~ to 1he c,-crcisc of the power of waiver in the Applica nt's favour. Not 10 do ~o seem~ 10 me 10 take th e deci~1on 10 refuse "a,,·cr outside 8 M a). 1992] QUEE 1SLA D GOVER MENT I 'DUST RIAL GAZETTE 37 -- 2 of 2 --