Worker's final written submissions in reply - 2 July 2025.

Entitlement to compensation - Failure to make a claim within time - Determination of preliminary issue - Whether failure to make a claim occasioned by mistake or other reasonable cause.

Workers Rehabilitation and Compensation Act 1988; ss 32, 33A, 38, 42, 81A.

L. v The State of Tasmania (Department of State Growth) [2022] TASCAT 104;

State of Tasmania v Muir-Wilson [2001] TASSC 30;

Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100;

The decision has been anonymised for the purpose of publication.

1. This is a determination concerning a preliminary question arising in relation to the worker's claim for compensation for post-traumatic stress disorder and a major depressive disorder.
2. The parties seek a determination as to whether or not the worker has lodged a valid claim for compensation.

1. On 2 of February 2024, the worker made a claim for compensation for alleged work-related stress conditions occurring on or around 16 December 2022.
2. Subsequent to the employer's receipt of the claim on 15 February 2024, the employer disputed the worker's claim for compensation pursuant to s 81A of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act).
3. The ground for the dispute of the worker's claim was that the worker had failed to make a claim for compensation within six months of the occurrence of his injury as required by s 32(1)(b) of the WRC Act. The employer further asserted that this failure was not occasioned by mistake, absence from the State of the worker, or other reasonable excuse as set out in s 38 of the WRC Act.
4. On 6 May 2024, by consent between the parties, the Tribunal found a reasonably arguable case existed with regard to the employers liability to pay compensation and made orders pursuant to ss 81A(3)(c) and 81A(3)(d) of the WRC Act that no weekly payments of compensation were to be made to the worker, nor were benefits pursuant to Div 2 Pt 6 of the WRC Act to be paid to the worker.
5. On 25 September 2024, the worker filed a s 42 referral with the Tribunal.
6. This s 42 referral proceeded through the Tribunal conference processes, with a timetable for the provision of evidence upon which the parties intended to rely being set during a telephone conference on 25 February 2025.
7. By the time of the hearing on 28 May 2025 counsel for both the worker and the employer had agreed that the sole issue for me to determine pursuant to s 32(3) of the WRC Act was whether or not s 38 of the WRC Act applied to validate the worker's claim for compensation which had been made out of time prescribed in s 32(1)(b) of the WRC Act.

32. Notice of injury and claim for compensation

(1) Subject to this Act, a person shall not be entitled to compensation under this Act for an injury to a worker unless -

(a) notice of the injury has, as soon as practicable after the occurrence of the injury and before the worker has voluntarily left the employment in which he suffered the injury, been given to the employer of the worker or a person referred to in section 33 (1) (b) ; and

(b) a claim for compensation with respect to the injury has been made within 6 months after the date of the occurrence of the injury, or where the injury results in the death of the worker, within 6 months after the date of the death.

(2) Subsection (1) does not apply to industrial deafness, but proceedings for the recovery under this Act of compensation in respect of industrial deafness are not maintainable unless the claim for compensation is made while the worker is still in the employment of the employer or within 6 months after the termination of that employment.

(2A) For the purposes of this Part, where a mining employee -

(a) suffers from silicosis, pneumoconiosis or fibrosis of the lungs within 12 months after ceasing to be a mining employee; or

(b) suffers from silicosis within 5 years after ceasing to be a mining employee, and since ceasing to be engaged in mining operations he or she has not engaged in any occupation in which he or she would be exposed to contamination by industrial dust; or

(c) suffers from lead poisoning or cadmium poisoning within 3 months after ceasing to be a mining employee; or

(d) suffers from lead poisoning within 6 months after ceasing to be a mining employee, and since ceasing to be engaged in mining operations he or she has not exposed himself or herself to contamination by lead in any form; or

(e) suffers from dermatitis caused by work within 2 months after ceasing to be a mining employee -

a claim for compensation is to be made no later than 6 months after the relevant period specified in this subsection or, where the disease results in the death of the mining employee, within 6 months after the date of the death.

(3) An employer who receives a claim for compensation shall be deemed to have been given notice of the injury to which it relates.

...

38. Effect of failure to make claim

(1) The failure to make a claim for compensation within the period prescribed by section 32(1)(b) , section 32(2) or section 32(2A) does not affect the validity of the claim if the failure was occasioned by mistake, absence from the State of the worker, or other reasonable cause.

(2) Without limiting the generality of the expression reasonable cause in subsection (1) , that expression includes -

(a) the making of a payment to a worker that he believes to be a payment of compensation under this Act; and

(aa) a failure by the worker's employer to comply with section 33A in relation to the injury to which the worker's claim for compensation relates; and

(b) any representation that is made to a worker that he believes is made by or on behalf of his employer to the effect that compensation under this Act will or will not be payable.

(3) Any dispute relating to the failure of the worker to make a claim for compensation within the period prescribed by section 32(1)(b), section 32(2) or section 32(2A) may be referred by either party to the dispute to the Tribunal for determination.

1. The worker has been employed by the Department of Education Children and Young People (DECYP) since November 1993.
2. At the time of the occurrence of the incidents basing his current claim he was the Principal of the Primary School.

1. There is no dispute that the claim for compensation made by the worker in February 2024 was made more than six months after the occurrence of the events he asserted gave rise to his injury.

1. By commencement of the hearing before me on 28 May 2025, counsel for the worker and employer had agreed that all documentary evidence intended to be relied upon by them would be tendered by consent and that the worker, after giving evidence in chief by way of his statement dated 16 May 2025, would be cross-examined by the employer's counsel, and re-examined by his counsel if needed.
2. Prior to the worker commencing to give his evidence under affirmation, by consent the following documents upon which the worker sought to rely were tendered:
   • Progress note from the GP dated 7 December 2022
   • DASS 21 dated 7 December 2022
   • Progress note from the GP dated 16 December 2022
   • Letter from GP to Psychologist 16 December 2022
   • Mental Health plan dated 16 December 2022
   • Progress note from the GP dated 1 February 2023
   • Medical Certificate completed 1 February 2023
   • Progress note from the GP dated 23 February 2023
   • Medical Certificate completed 23 February 2023
   • Progress note from the GP dated 21 April 2023
   • Medical certificate completed 21 April 2023
   • Progress note from the GP dated 5 July 2023
   • Medical certificate completed 5 July 2023
   • Progress note from the GP dated 11 October 2023
   • Progress note from the GP dated 10 January 2024
   • The psychiatrist report on capacity dated 11 January 2024
   • Progress note from the GP dated 1 February 2024
   • Workers compensation certificate of capacity dated 1 February 2024
   • Progress note from the GP dated 21 February 2024
   • Email chain between [the worker] and DECYP from 2 to 12 December 2022
   • Page one of notice of right to make a workers compensation claim
   • Email from [the worker] to DECYP undated
   • Statement from the GP dated 17 April 2024.
3. By consent the following documents upon which the employer sought to rely were also tendered by consent:
   • The workers compensation claim form signed on 2 February 2024.
4. After the tendering into evidence of his statement of 16 May 2025, the worker was cross-examined by counsel for the employer. At its conclusion, and following a brief re-examination, I gave directions for the provision of written closing submissions and reserved my decision.
5. In furtherance of these directions, the worker's closing submissions were received on 11 June 2025, the employer's written closing submissions were received on 25 June 2025, and the worker's submissions in reply were received on 2 July 2025.

1. The worker gave evidence that at the time of his injury basing the current claim, he held the position of Principal at the Primary School and that he had been employed by the employer since November 1993.
2. The worker's claim for compensation related to a psychological injury he said he had suffered on or around 16 December 2022 as a consequence of workplace challenges, being the continued undermining of his position as Principal by the then Assistant Principal over a 3.5 year period which had been identified as bullying and harassment. The challenges also included the ongoing refusal by the Assistant Principal to undertake reasonable workplace directions from the worker as his Principal.
3. The worker first saw his general practitioner on 7 December 2022 about those challenges and booked a follow up appointment with him in the following week to see how he was going.
4. He next met with his general practitioner on 16 December 2022 at which time he discussed his challenges at work and how they were affecting his mental health. As it was very common to have a heightened level of stress during the end of school year, it was suggested by his general practitioner that he should not return to work for the week remaining of the school year.
5. The worker was provided with a sick leave certificate for the week of 16 December 2022 to 22 December 2022 which he provided to his employer.
6. On 16 December the worker emailed his employer in which he indicated:

Through the ordeal I have faced this year I have sought support from seven EAP sessions and four PWS sessions with a psychologist. I have been referred to my GP and have had an appointment today. All three health professionals agree that [the] Primary School is not a safe working environment for me. This saddens me no end, but with the delay in the provision of support for me from the learning service, I have no other option but to follow my GP's direction and take a period of stress leave effective immediately.

7. In response to that email, on 16 December 2022 the employer provided to the worker the s 33A notice - notice of right to make worker's compensation claim.
8. The worker acknowledged receiving this form, noting that none of the boxes were completed within it. In cross-examination, the worker was pressed regarding his reading of this document. He agreed that if he wanted to make a claim them this was a form that he needed to fill out.
9. When asked about whether he could recall anything about a time limit in that document, the worker's evidence was that he could not recall that at the time he received it, but he now knew there was a six month time limit in which to make a workers compensation claim. He did not concede he was aware of this at the time he received that form.
10. The worker gave evidence that before he initially consulted his general practitioner on 7 December 2022, he had already applied for long service leave at the end of Term 3, 2022. His planned long service leave was timely, due to him reaching his maximum long service leave entitlement (100 days). It was also coinciding with some workplace challenges. The application for long service leave was approved for the period between 6 February 2023 and 24 July 2023. The worker planned a holiday to the mainland in his caravan.
11. Subsequent to his appointment with his general practitioner on 16 December 2022, the worker's general practitioner arranged a follow up appointment with the worker at the beginning of February 2023.
12. At 10:00am on 24 January 2023, the worker had his initial appointment via telehealth with a psychologist, and saw his general practitioner on 1 February 2023 for his follow up appointment.
13. It was the worker's evidence that he was still presenting with symptoms and he and his general practitioner discussed his options for his immediate future considering his upcoming commencement of a period of long service leave from 6 February 2023.
14. There were discussions around him pursuing a workers compensation claim. The worker indicated that using sick leave would be beneficial to his recovery and enable him time to recover enough to be able to be sent back to work in the second half of 2023. The worker indicated he did not want to pursue workers compensation as he felt the process may interfere with his recovery which was progressing well. He preferred to use some sick leave at this stage to facilitate his recovery further.
15. His general practitioner provided a sick leave certificate for 6 February 2023 to 24 February 2023.
16. In re-examination the following exchange occurred:

Mr McKenzie: Am I right in understanding that that change in classification occurred underneath a sick leave certificate of [the general practitioner]. > > Worker: That is correct. > > Mr McKenzie: In your conversation with [the general practitioner] about your prebooked long service leave and your sick leave do you consider that your desire to use that leave to recover was a reasonable option to take. > > Worker: Yes

17. It was the worker's evidence that he thought he would get better after a period of sick leave.
18. At his next appointment with his general practitioner on 23 February 2023, discussions were had regarding the worker's ongoing mental health concerns. Both he and his general practitioner discussed the workers hopeful positive outcome of the upcoming trip to rest and recover. His general practitioner provided a further sick leave certificate for the period 25 February 2023 to 22 April 2023.
19. On 8 March 2023 and again on 15 March 2023, the worker had telehealth appointments with his psychologist. In the telehealth appointment on 8 March, the worker explored the possibility of burnout as a result of workplace stresses. In the telehealth appointment on 15 March further strategies for self-help and recovery while travelling were also discussed.
20. The worker commenced his travel to Melbourne for his preplanned caravaning trip on 20 March 2023.
21. On 21 April 2023 the worker had a telehealth appointment with his general practitioner in which his ongoing symptoms and his capacity to return to work was discussed. It was agreed this would be assessed at the next appointment. The general practitioner provided a further certificate to the worker for sick leave covering the period 22 April 2023 to 7 July 2023.
22. On 6 June 2023, the worker had a Microsoft Teams video link with Mr CB (Director/Principal Leadership at DECYP), and Mr TT, the worker's support person at the Australian Education Union, regarding his current situation. During this discussion the worker's current incapacity to resume his Principal position at the Primary School which had led to the ongoing severity of his symptoms was discussed.
23. On 14 July 2023, the worker sent an email to CB recording his recollections of that meeting.
24. The worker's evidence was that he continued to hope that he would get better to enable him to return to his work at the Primary School.
25. In cross-examination as evidenced by the following exchange between the worker and the employer's counsel, the worker confirmed that his period of travel was not having the desired effect of improving his health.

Ms Zito: Thank you, did you improve when you were away? > > Worker: I had a strong desire to improve. I had a strong desire through all of this to return to work. > > Ms Zito: And I am sure you still do but... > > Worker: Absolutely. > > Ms Zito: Did you when you were away? Did you improve? > > Worker: I didn't find myself improving unfortunately. > > Ms Zito: Ok thank you. So you continued to have the symptoms when you were away? > > Worker: Yes. > > Ms Zito: Ok and you wouldn't say there had been a resolution of those symptoms whilst you were away? > > Worker: No.

26. It was the worker's evidence that he thought that using his long service leave and sick leave to let him recover provided a better chance of him returning to his work at the Primary School rather than a workers compensation claim.
27. Referencing an appointment the worker had with his psychiatrist in November 2023, in re-examination, the following exchange occurred:

Mr McKenzie: And in terms of those appointments, at the time - and I know it is challenging to put yourself two years back - knowing now that you haven't recovered but at the time, you still had a plan to return to work? > > Worker: Yes. > > Mr McKenzie: And continued to believe that your time away under that sick leave certificate would enable you to return to work? > > Worker: Yes. > > Mr McKenzie: And it wasn't until much later in 2023, after some further assessment that it became apparent to you that it wasn't going to happen? > > Worker: Correct. So, it wasn't until November 2023 when I had an appointment for an assessment with a psychiatrist which I was referred to by [the general practitioner] because my symptoms weren't getting better. I then realised the significance of my injury and the seriousness of it and she certainly made me more aware of my symptoms and how it was affecting my capacity to work. > > Mr McKenzie: But up until the middle of... at least the middle of 2023, you continued to hope that the prebooked leave would enable you to return to work? > > Worker: Correct. > > Mr McKenzie: And you wouldn't need to make a claim? > > Worker: Correct.

1. The worker submitted that the evidence at the hearing supported a finding that his failure to make a claim for compensation within six months of his incapacity for work was occasioned by mistake or other reasonable cause, and that s 38 of the WRC Act validated his claim. The worker did not at any stage seek to assert that his absence from the State was a reason for the failure to make his claim within six months.
2. The worker did not dispute that he bore the onus of establishing his failure to make a claim was occasioned by mistake or other reasonable cause on the balance of probability, and that the relevant six month period was to 16 June 2023.
3. The worker asserted that the key factors in his failure to make his claim within the six month period prescribed by s 32(1)(b) of the WRC Act are matters that amount to either mistakes or reasonable causes and were:

(a) His general practitioner's advice;

(b) The worker's belief he would get better with rest due to leave for the following reasons which included, but are not limited to:

(i) His longer period of leave was not specifically organised to provide relief from stress but was long service leave due and being available to him which had accrued due to his years of service with his employer;

(ii) He only thought he required a short period of sick leave before his pre-planned trip would commence;

(iii) He was still on leave interstate when his six months' time expired.

(iv) He was optimistic in recovery and was supported by his general practitioner in that hope.

(v) He thought the symptoms would resolve with a break from work and would not warrant making a claim.

(vi) He was mistaken about the severity of his symptoms and the lack of meaningful effect of his prebooked time away from work.

1. In support of the worker's failure to make a claim within six months being occasioned by a mistake, the worker referred to the Full Court of the Supreme Court of Tasmania decision in State of Tasmania v Muir-Wilson [2001] TASSC 30 at [6] where it was stated:

Mistake by the respondent as to the severity of her injury or as to the likely longevity of its symptoms would have been just as much a mistake as a mistake as to whether or not the injury had been suffered or a mistake as to whether her neck injury was the cause of her upper limb symptoms. > > One can make a mistake in relation to a question of degree ... > > It is significant that s 37(1)(a) does not say "reasonable mistake", but "mistake". When a failure to give notice at the appropriate time is occasioned by a genuine or honest mistake it does not matter how reasonable or unreasonable a worker's mistake is. Thus a worker might be entitled to the benefits of s 37 of the basis of the mistake which, viewed objectively, would not amount to a reasonable cause". The worker referencing the recent decision of L v Tasmania (Department of State Growth) [2022] TASCAT 104 also considered the decision of Tasmania v Muir-Wilson referencing its interpretation of mistake, but usefully also referenced Underwood CJ in Tanase v ASME Engineering (Tas) Pty Ltd [2006] TASSC 100 drawing attention to the Australian Digest Extract in Garratt v Tooheys Limited [1949] 23 WCR 80 (New South Wales Compensation Commission) held: > > Mistake means a fault in an opinion or judgment or an unintended error of conduct: It could include misconception of the requirement of notice or claim. Ignorance is not the same as mistake, the latter conception comates mental processes revolving around some facts or circumstances and an onus or believe or act resulting therefrom. In short, there cannot be a mistake without some knowledge. Not to know the law simpliciter, not to know the requirement of notice or claim, is insufficient excuse. The mistake contemplated by the statute may be one of law or fact or mixed law and fact. The line between not knowing and being mistaken is finer than the finest gossamer thread.

2. Referencing the above, the worker submitted that he was mistaken about the trajectory of his recovery. He thought he would get better, but he was mistaken.
3. The worker submits he remained genuinely hopeful of a return to work and a return to the Principalship of the school where he had once been a student. He was supported by his general practitioner in that hope and opted to use sick leave and long service leave in order to seek to try to recover and seek a reduction in his symptoms.

1. The employer contends the worker must establish on the balance of probabilities:

(a) What occasioned the failure to make a claim within six months; and

(b) That what occasioned the failure was relevantly, a mistake, absence from the State, or other reasonable cause; and

(c) That what occasioned the failure covered the entire six month period following the suffering of the injury.

1. The employer submits that it is not sufficient for the worker to simply identify factors that exist that if causative of the failure, could have amounted to a mistake or reasonable cause. It must be established that the said factors actually occasioned the failure. The employer asserts that nor is it sufficient for a worker to establish a factor (or factors) that covers some, but not all, of the six month period.
2. The employer submits that unless I am positively satisfied on the balance of probabilities that the failure to make a claim was relevantly occasioned by a mistake, absence from the State or other reasonable cause, and the failure or reasonable cause covered the entire six month period, then the referral must be dismissed.
3. The employer submits that the evidence does not establish how the advice from the worker's general practitioner occasioned his failure to make a claim within the six month period.
4. The employer concedes that it is open to me to find that, for the period of months after the suffering of the worker's injury, there was a reasonable cause occasioning the failure to make a claim. This reasonable cause was the worker's belief that he would get better after a period of time away from work, particular noting his planned leave and travel interstate. This belief existed immediately upon suffering of the injury, as the leave had already been planned and persisted for periods following the commencement of interstate travel. The employer however submits that I cannot be satisfied that his belief covered the entirety of the six month period following the date of injury. This assertion is based on the evidence which is not sufficient to establish that his belief existed beyond mid to late April 2023 - particularly after the consultation with the worker's general practitioner on 21 April 2023.
5. The employer submits that I can only be satisfied that up to that point in time, the worker had the hope or desire to get better. In the employer's submission, this is not a mistake or a reasonable cause.
6. The employer submits that "the worker was mistaken about the severity of his symptoms of his injury and a lack of meaningful effect from his prebooked annual leave away from work", but that by late April 2023 the worker was no longer mistaken.
7. The employer submits that whilst the worker was absent from the State for a period, there is no contention that his absence from the State occasioned to make the failure of the claim. Citing Underwood CJ's decision in Tanase v ACME Engineering Tas Pty Ltd [2006] TASSC 100 at [33], the employer states that the relevant period to consider mistake or reasonable cause as a failure to lodge a claim covers the period 16 December 2022 until the 16 June 2023.
8. The employer "accepts entirely" that the worker did hold a belief that he would get better with rest or due to his leave, but his belief no longer existed by mid to late 2023 when he spoke to his general practitioner and was not getting better. At this point the worker had been absent from work for four months and on his planned trip for one month and there had been no improvement.
9. The employer submitted that a "hope", mistaken or not, is insufficient to amount to a reasonable cause. The employer regularly referenced the worker's conduct in a telephone meeting with CB and his AEU representative, TT, on 6 June 2023 as being the latest time when the worker no longer held that hope or belief.
10. The employer submitted that considering the evidence given by the worker, being his written statement and his avoidance of use of the word "belief" in cross-examination, I cannot be satisfied that this is true and correct. The worker did not hold a belief, by mid-April, or 6 June meeting at the latest, that he would get better. The employer further submitted that the worker did not relevantly hold any belief that he would get better with rest for the entirety of the six months. By the telephone meeting of 6 June at the latest, he no longer held any such belief.
11. The employer submitted that at most, the worker held a hope or a desire he would get better. It is submitted that a reasonable cause is a cause which a reasonable man may regard as sufficient. By sufficient, in context, means sufficient to justify not making a claim within the statutory required timeframe, but a reasonable person upon suffering illness or injury holds a hope to get better. However no reasonable person would regard a hope of recovery as sufficient to justify not to make a claim. If a hope is a reasonable cause, then almost every claim would meet the standard - it is very unusual for someone not to hold hope or desire to get better. The employer contended that a hope or desire is not a reasonable cause, nor it is a mistake.
12. The employer submits that by 21 April 2023 or at the latest by 6 June 2023, the only reason the worker had not made a claim was because he hoped he would get better.

1. On the authority of the Full Court of the Supreme Court of Tasmania's decision in Muir-Wilson (supra), it is clear that a worker's mistake as to the severity of his injury and as to the likely longevity of his symptoms is capable of being amounting to a mistake for the purposes of s 38 of the WRC Act, so long as it is honestly and genuinely held. There is no reasonableness requirement for a mistake. It does not matter how reasonable or unreasonable a worker's mistake is and a worker might have the benefit of s 38 on the basis of a mistake which, viewed objectively, would not amount to a reasonable cause.
2. The employer's submissions that I cannot be satisfied on the evidence that the worker's delay in claims lodgement was occasioned by his mistake or other reasonable cause are not supported by the evidence. It was the worker's clear and uncontradicted evidence that he did not lodge his claim for compensation within the relevant six month period because he hoped or desired he would recover whilst being absent from work, utilising leave, a significant proportion of which was preplanned. I find this was an honest and genuinely held mistake.
3. The worker's evidence shows a clear connection to this mistake as to the trajectory of recovery and delay in him lodging his claim within the six month period set out in the WRC Act. The delay was occasioned by this mistake.
4. The employer asserts that the worker's use of the words "hope" or "desire to get better", or a "belief that he would get better", do not amount to evidence of his delay in claims lodgement being occasioned by the mistake as to the trajectory of his recovery.
5. In my view, this submission lacks merit. The phrase "occasioned by" in s 38 was considered by Underwood CJ in Tanase v Acme Engineering (Tas) Pty Ltd [2006] TASSC 100 where at [27] it was stated:

The words "cause" and "occasioned" as enacted in the Act, s38, are words of wide meaning and ordinary use. I see no reason not to apply the principles expressed in the leading case on causation in the law of damages, March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, namely what was the cause of injury and/or damage is to be determined according to ordinary "common sense principles", this being a value judgment by the fact-finder.

6. By applying common sense principles, it is clear that the worker's evidence that he hoped or desired to get better or had "a belief that he would get better" was something which he was mistaken about and this occasioned or caused his failure to lodge his claim within six months.
7. The State has not relied on any authority in support of its contention that these words could not amount to being "occasioned by" or "caused by". In my view, these words are synonymous with such a phrase.
8. There was clear evidence of this in the worker's meeting with his general practitioner on 1 February 2023. Although his general practitioner could sympathise with the worker's concern that stigma and stressors attached to the workers compensation process may derail his recovery, his general practitioner agreed that at this point a workers compensation claim may have been detrimental to the worker's recovery given the progress he was making and the good intention to return to work.
9. Although the worker conceded receiving and reading the s 33A notice pursuant to the WRC Act on 16 December 2022, he did not concede to being aware of the six month period for claims lodgement at that time, being only "now" aware of its existence and relevancy.
10. Although one might ordinarily expect a Principal of a school with many years of experience in management roles to read and understand the content of documents provided to him, he was not pressed about this during cross examination. Having considered all the evidence, I am not satisfied that in the mental state he was in as at 16 December 2022, he was aware of the need for a workers compensation claim to be lodged within six months.
11. On the evidence, I do not accept the employer's submission that the worker did not hold the belief or hope that he would get better after a meeting with his general practitioner on 21 April 2023, or at the latest subsequent to his telephone discussion on 6 June 2023, thus not adducing evidence of his mistake or reasonable cause being held for the entire six month period.
12. It was the worker's clear and uncontradicted evidence that he obtained a sick leave certificate at his appointment with his general practitioner on 21 April 2023 which certified him as totally incapacitated for work to 7 July 2023. The worker also did not resile from his desire to continue to use sick leave in the meeting of 6 June 2023. The contents of this meeting were referenced in the worker's email of 14 July 2023. This evidence was not challenged in cross-examination.
13. It was also the worker's further evidence that it was not until the November period of 2023 that in a meeting with his psychiatrist he realised the significance of his injury, the seriousness of it, and that his psychiatrist made him more aware of his symptoms and how they were affecting his capacity to work.
14. Although November 2023 was outside the six month period relevant to a matter such as this (16 June 2023), this is clear evidence of him continuing up to and after 16 June 2023 to have this mistaken belief as to the trajectory of his recovery.
15. I also accept the submissions of the worker that, whether or not the worker held the belief that he would improve after 16 June 2023, was not put to the worker in cross examination. The employer has not complied with the principles enunciated in Browne v Dunn (1893) 6 R 67, and consequently I give no weight to the employer's submissions concerning this aspect.
16. For all of these reasons I am satisfied that the worker was mistaken about the trajectory of his recovery. He thought he would get better, he was mistaken. He remained generally hopeful of return to work and return to the Principalship of the school.
17. I find the worker has met the threshold under s 38 of the Act and his failure to make a claim within the prescribed period has been explained by a mistake or other reasonable cause. The worker's claim for compensation is valid.