//
[2023] QIRC 1
General information, not legal advice.
Queensland Industrial Relations Commission
2023-06-12
Original judgment source is linked above.
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - APPLICATION FILED OUT OF TIME - appeal against review decision - where appellant made an application for compensation for psychological injuries - where application rejected on the basis the appellant did not file the application within the time required by s 131 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) - whether there was a reasonable cause for the appellant's failure to lodge the application for compensation - reasonable cause not established
Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 11, 131 and 141
Blackwood v Toward (2015) 248 IR 53
Fox v Percy (2003) 214 CLR 118
Green v Workers' Compensation Regulator [2019] ICQ 3
Quinlivan v Portland Harbour Trust [1963] VicRp 5; (1963) VR 25
R v Butler [2009] QCA 111
Rowe v Q-Comp [2009] QIRC 106; (2009) 190 QGIG 93
Mr B.I. McMillan of Counsel, directly instructed by the Respondent.
[1] Ms Susan Ballu Turay ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') not to waive the time limitation for applying for compensation pursuant to s 131 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').
[4] The Appellant commenced employment with Yarrabee Blue Care as a Registered Nurse in 2017.
[5] The Appellant was stood down from her employment on 16 January 2018. Following a workplace investigation, the Appellant's employment was terminated on 19 January 2018.
[7] On 14 November 2018, the Appellant consulted with Dr Johanna Skinner, General Practitioner, who provisionally diagnosed the Appellant with an adjustment disorder.
[8] On 16 September 2020, the Appellant lodged an application for compensation of a psychological nature described as 'Psychological and Emotional harm, Mental Torture'.
(a) the Appellant's entitlement to compensation arose on 14 November 2018 when she was diagnosed by Dr Skinner with an adjustment disorder arising from workplace bullying;
(b) the Appellant lodged the application for compensation on 16 September 2020; and
(c) the Appellant did not lodge the application for compensation within six months after her entitlement to compensation arose on 14 November 2018, namely, before 14 May 2019 ('the limitation period').[2]
[10] Section 131 of the Act provides the time for applying for an application for compensation:
(1) An application for compensation for an injury is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation for the injury 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) Also, an insurer may waive subsection (1) for a particular application if -
(a) it is satisfied that a doctor, nurse practitioner or dentist has assessed the injury as resulting in total or partial incapacity for work; and
(b) the claimant lodged the application within 20 business days after the first assessment under paragraph (a).
(6) 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; or
(b) the claimant's absence from the State; or
(c) a reasonable cause.
[11] The Appellant does not contend that the failure to lodge the application was due to mistake or absence from the State. Accordingly, the only consideration is whether the Appellant had a reasonable cause pursuant to s 131(6)(c) of the Act.
[12] The appeal is by way of a hearing de novo and the onus is on the Appellant to satisfy the Commission, on the balance of probabilities, that the Appellant's failure to lodge the application for compensation was due to a reasonable cause.
[13] The Appellant's statement of facts and contentions can be summarised as follows, that:
(a) the Appellant was affected by post-traumatic stress disorder ('PTSD') and major depression and was too unwell to lodge the claim;
(b) the mental distress and instability got worse over time making it difficult to concentrate or think properly;
(c) the attempt to remove the restrictions placed on her nursing registration by the Australian Health Practitioners Regulation Agency ('AHPRA') was difficult and the process was stressful;
(d) as a second language speaker, the Appellant's English does not extend to the legal terms and she does not have knowledge of WorkCover laws; and
(e) the Appellant was too unwell during the six month period to complete her master's degree, with the degree not finished until July 2019 and graduated on 14 October 2019.
[14] The Appellant's submissions outlined a chronology of events commencing with her employment in 2017 and detailed matters relating primarily to the substantive workers' compensation application.
[15] The Appellant's submissions refer to publications, a discussion paper from the Queensland Law Reform Commission relating to common law claims and various legal and medical journal articles. The submissions traverse the history of the Appellant's actions before the Fair Work Commission ('FWC'), AHPRA and the Queensland Civil and Administrative Tribunal ('QCAT') and state that the Appellant was unable to afford legal representation. The Appellant submits that she sought advice from various legal services and law firms and was not informed of relevant time limitations.
[16] The Appellant submits that the events in her workplace from 14 November 2017 to January 2018 are responsible for her mental health issues, causing her symptoms which include 'lack of confidence, anger, sick, confused, sleepless nights, distrustful, nightmares, sleepless nights, dependent on medications, healing therapies/scriptures'.[3]
[17] The Appellant submits that her thought processes were 'vague, unclear and mucky' throughout 2018, 2019, 2020 and 2021.
[18] The Appellant submits that academic accomplishments and capabilities did not 'certify' that she was not ill, referring to an article stating that the ability to speak the language does not necessarily imply having the skills to convey the exact sameness of meaning.
[19] Issues regarding the role of the Appellant's culture and race were raised with regard to the Appellant's presentation to medical professionals during the limitation period.
[20] The Respondent submits that the Appellant described a range of personal circumstances and mental health symptoms experienced since her employment with Blue Care. However, the Appellant did not provide any specific examples of mental health symptoms during the limitation period by reference to particular dates or fixed points in time.
[21] The Respondent submits that, while the Appellant may have experienced periods of significant stress and distress, prior to lodging her application for compensation in September 2020, she was able to:
(b) complete further post-graduate education; and
(c) actively seek training and employment during and in the period after the limitation period.
(a) whether the failure to lodge within time was due to a stated ground, namely, a reasonable cause; and
(b) whether the discretion should be exercised in the Appellant's favour.
[23] Section 141 of the Act provides that the entitlement to compensation arises on the day the worker is assessed by a doctor. As outlined in Blackwood v Toward,[5] an entitlement to compensation arises when a worker is first assessed by a medical practitioner for an injury that is considered to have arisen out of employment.
[24] Dr Skinner saw the Appellant on 14 November 2018 and completed a GP Mental Health Treatment Plan in relation to an injury diagnosed as an adjustment disorder arising from workplace bullying, harassment and racial discrimination. Accordingly, the entitlement to compensation arose on 14 November 2018.
[27] The Appellant's case is that she was affected by mental illness during the limitation period giving rise to a 'reasonable cause' for not lodging her application for compensation within time. The principles for assessing 'reasonable cause' were set out by Martin J in _Green v Workers' Compensation Regulato_r:[6]
[9] The basis for the applicant's case was that a reasonable cause existed to explain the failure to lodge within time. A "reasonable cause" is a cause which a reasonable person would regard as sufficient - a cause which is consistent with a reasonable standard of conduct. See Perdis v Nominal Defendant.
[10] It was put this way in Black v City of South Melbourne where the Full Court of the Supreme Court of Victoria considered the meaning to be given to "reasonable cause" as it appeared in s 34(4) of the Limitations of Actions Act 1958 (Vic). 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 an act or omission which was in the circumstances reasonable."
[11] An example of a "reasonable cause" can be found in Perdis v Nominal Defendant. The Court of Appeal held that "a reasonable excuse for the delay" had been given within the meaning of s 37(3) of the Motor Accident Insurance Act 1994 where the excuse was that the claimant had retained and given adequate instructions to a solicitor, in sufficient time before the expiry of the time limit, to enable him or her to prepare and send a notice of claim, but through the solicitor's negligence this was not done on time. It so held because in doing so, such a claimant had done what a reasonable person might have been expected to do, namely, leave the matter then in the hands of an apparently competent solicitor.
[12] Whether a "reasonable cause" exists for the purposes of s 131(5) will always depend on the facts of the particular case and will require consideration of the knowledge of the applicant at the relevant time and the actions taken or not taken within the six month time limit.
The sub-section means to refer to a cause 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.
[29] The Appellant gave evidence that the reasonable cause for her failure to lodge the application within time was that she was 'unwell mentally'[9] and suffering 'distress, mental incapacitation and mental instability'[10] during the limitation period. The Appellant gave evidence that she experienced 'forgetfulness, mental incapacitation'[11] and that 'there was a memory mistake lacking awareness and absence of capacity for sensory perception'.[12]
[30] As outlined in Rowe v Q-Comp,[13] the Appellant cannot be expected to perform self‑analysis of a psychiatric or psychological nature. Accordingly, the evidence of medical professionals should generally be preferred to that of the Appellant's evidence in assessing her mental state during the limitation period.
[31] The Appellant referred to letters from a number of doctors drafted in late 2021. These letters were not accepted into evidence on the basis that they were not relevant to an assessment of the Appellant's capacity during the limitation period some two and a half years earlier.
[32] Dr Skinner gave oral evidence and clinical notes relevant to this matter were tendered into evidence. The Appellant consulted with Dr Skinner at the beginning of the limitation period and a formal mental state examination was conducted at that time. The clinical notes of Dr Skinner's consultation with the Appellant on 14 November 2018 record the following observations:[14]
upset, angry at the fact she is in this position - frustrated
[33] Dr Skinner provisionally diagnosed the Appellant with an adjustment disorder and referred the Appellant for counselling on a Mental Health Treatment Plan.
[34] Dr Skinner confirmed in evidence that when she saw the Appellant on 14 November 2018, she did not consider the Appellant had any difficulties with cognition and gave a 'very detailed, excellent history'.[15] Dr Skinner's oral evidence with respect to the Appellant's capacity was the following:[16]
Counsel: Does that reflect upon her capacity, for example, to complete paperwork or give instructions to a lawyer?
Dr Skinner: I don't think - she had excellent cognition, so I would not have thought there was any difficulty with paperwork, no.
[35] The Appellant referred to a number of medical certificates and letters provided by her General Practitioner, Dr Crystal Pidgeon.[17]
[36] Dr Pidgeon's evidence confirmed that the content of the letters were largely reflective of the Appellant's instructions. When questioned by the Appellant in evidence about a letter she had written dated 11 September 2019,[18] Dr Pidgeon stated, 'That's what you told me, so that's what we put in the letter'.[19] Similarly, in response to a question about a letter dated 13 January 2020, Dr Pidgeon stated, 'Again, that's what you told me, so that's what we wrote'.[20] In relation to a letter dated 19 November 2020, Dr Pidgeon stated, 'Again, I was just typing what you told me, Susan. I can't - there's not much more to say'.[21]
[37] Dr Pidgeon agreed that the letters in evidence were not intended to be records of her diagnostic opinion about the Appellant's capacity but had been written in an attempt to support the Appellant:[22]
Counsel: Should we take that sentence as an expression of your opinion that a medical condition was causing her to be unfit for work, or is it something other than that?
Dr Pidgeon: No, I think it is a sentence based on what Susan told me, not necessarily that I thought she couldn't work.
Counsel: I see. Can you turn, please, to page 34. That's a letter dated the 19th of November 2020. And in the second paragraph we see the same sentence, or almost the same sentence. Is your evidence the same in respect of that sentence, that it's not intended to be a diagnostic opinion about capacity, but rather a statement of support in a letter that Susan was going to use for a purpose that you weren't aware of?
[38] Dr Pidgeon gave evidence that she had never conducted a formal mental state assessment of the Appellant, and the opinions as to the Appellant's mental state outlined in the letters are based on what the Appellant told her and her own observations of the Appellant during consultations.[23]
[39] Dr Pidgeon was cross-examined regarding a letter she wrote for the Appellant on 16 June 2021 which read:[24]
Susan firmly believes that she was not capable of submitting an application sooner due to her mental distress.
[40] The version of the letter issued by Dr Pidgeon on 23 June 2021 states:[25]
Susan was not capable of submitting an application sooner due to her mental distress.
[41] Dr Pidgeon stated that the changes to the draft letters were made following a request by the Appellant and not because of alterations to her clinical assessment.[26]
[42] The Appellant submits that no plans were made to follow medical protocols by Dr Pidgeon as she did not do assessments about health and wellness. The Appellant submits that Dr Pidgeon's opinions were given without a qualitative measurement or mental health status assessment.
[43] Dr Pidgeon stated that the Appellant presented as teary and distressed, however, she could not say that the Appellant did not have capacity to make an application for workers' compensation. Dr Pidgeon said that she thought the Appellant was able to undertake the process of completing the online application for workers' compensation during the consultation with the Appellant on 22 May 2019.[27]
[44] Dr Pidgeon gave evidence that, based on her experience working with prisoners, a person who is self-representing in court proceedings needs a high degree of organisation and that would be 'enough organisation to submit a WorkCover claim'.[28]
[45] In cross-examination, Dr Pidgeon agreed that someone who was able to conduct litigation in QCAT on their own behalf would have been able to take the necessary steps to apply for workers' compensation.[29]
[46] The letters written by Dr Pidgeon upon request of the Appellant are not reliable indicators of the Appellant's capacity. This conclusion is based on Dr Pidgeon's evidence that they were drafted to reflect the Appellant's instructions. I accept that the clinical notes made by Dr Pidgeon indicate that the Appellant was experiencing mental health symptoms, however it was the opinion of Dr Pidgeon that these symptoms would not have prevented the Appellant from lodging an application for compensation during the limitation period.
[47] The only medical evidence in support of the Appellant's contention that she did not have the ability to lodge the application during the limitation period was given by Dr Ana Borges.
[48] Dr Borges has a PhD in Immigration, Domestic Violence and Longitudinal Mental Health[30] and is a general psychologist. Dr Borges gave evidence that as at 2018, she had known the Appellant for over five years but was not in a clinical relationship.[31] The Appellant 'officially' became a patient of Dr Borges in 2019, with the first clinical note recording Dr Borges' consultation with the Appellant dated 27 June 2019.[32]
[49] Dr Borges' evidence was that she believed that the Appellant's symptoms prevented her from lodging the application for compensation on time. In a document dated 21 September 2020 titled 'Psychological Evaluation', Dr Borges outlines the following opinion:[33]
While she may have some of these symptoms before the incidents at work, it is my professional belief that she experienced workplace harassment and the events that followed her dismissal lead to or at least aggravated considerably her PTSD and major depressive disorder. I believe while psychologically functional before acquiring the employment, her wellbeing has been severely diminished following her dismissal and the placement of conditions in her registration.
[50] In the 'Psychological Evaluation', Dr Borges referred to conducting a mental state examination in her first session with the Appellant but when cross-examined, could not say when that session had occurred or refer to any notation of it. Dr Borges gave evidence that she 'came to an understanding that those diagnoses [of PTSD and major depressive disorder] were likely' after an assessment on 2 April 2020, however, conceded that there was no record of any such assessment.[34]
[51] Dr Borges outlined in a letter dated 22 May 2021 her opinion that in late 2018 and 2019, the Appellant was 'emotionally overwhelmed' and 'cognitively impacted by her diagnoses [of PTSD and major depressive disorder]'.[35]
[52] In oral evidence that was somewhat confusing, Dr Borges indicated that she did not conduct a mental state examination of the Appellant on 9 April 2018[36] but later claimed she conducted mental state examinations in every single session she ever had with the Appellant.[37] Dr Borges also maintained that she knew about the Appellant's provisional diagnoses because she had the mental health care plans from her general practitioner,[38] but in cross‑examination conceded that she only had the 'front letter'.[39]
[53] I found Dr Borges' evidence to be less reliable for a number of reasons. Firstly, the manner in which her evidence was given reflected advocacy on behalf of the Appellant, and secondly, her refusal to make reasonable concessions. One example related to a question asked in cross-examination comparing a draft letter dated 19 June 2019[40] to the final version of the same letter dated 21 June 2019.[41] Dr Borges denied that the Appellant's solicitor was a contributor to the content of the letter[42] despite the lawyer's name appearing at the foot of the draft and the letter referring to the Appellant as 'our client'.[43]
[54] The documentary evidence also indicates that Dr Borges did not have access to the mental health treatment plan prepared by Dr Skinner on 14 November 2018 nor the mental health care plan prepared by another General Practitioner, Dr Anna Hebden on 6 May 2021.
[55] I afford significant weight to the evidence of Dr Skinner. Dr Skinner examined the Appellant at the commencement of the limitation period and conducted a mental state examination at this time. This evidence gives the clearest indication of the Appellant's capacity at the time at which the compensation application should have been made.
[56] The Appellant gave evidence that the consultation with Dr Pidgeon on 22 May 2019 occurred via phone, with Dr Pidgeon first seeing the Appellant after the limitation period had expired.[44] In cross-examination, Dr Pidgeon gave evidence that, in her opinion, the Appellant was not so incapacitated by mental illness that she could not have lodged an application for workers' compensation.
... denotes that the court proceedings 'is further impacting on Susan's mental health'; 'is also experiencing financial stress' ... 'She is hoping to tell her story ... to be able to access compensation'.
[58] I am not persuaded by the Appellant's submission that Dr Pidgeon 'was trying to distance herself from what she had written'.[47] Dr Pidgeon did not retreat from statements made in her letters, rather she provided an honest answer as to the basis upon which those letters were written. Dr Pidgeon provided an honest answer under oath as to the Appellant's capacity during the limitation period.
[59] Dr Pidgeon's evidence was that the letters she wrote in support of the Appellant were done so upon her request. There is no inconsistency between the content of those letters, which outline generally the Appellant's mental health symptoms, and Dr Pidgeon's evidence that the Appellant had the capacity to lodge a workers' compensation application. It is possible to have suffered all of the symptoms outlined in the letters and still have had the capacity to lodge an application.
[60] I approach Dr Borges' evidence with some caution given her stated role as an 'advocate' for the Appellant. The medical witnesses who gave evidence at the hearing were the Appellant's treating clinicians and were not called as independent experts, however, Dr Borges conceded she was an advocate for the Appellant.[48] This concession, along with the difficulties associated with her evidence as outlined above at [53] relating to the lack of clinical notes of critical consultations and inconsistent evidence about the information she had obtained from the Appellant's GP render her evidence somewhat unreliable. Dr Borges accepted that she had made changes to the draft letter dated 21 May 2021 at the Appellant's request.[49] The Respondent refers to R v Butler[50] and Fox v Percy[51] in its submission that it is inappropriate for an expert witness to act as an advocate rather than as an impartial witness and that 'an expert witness should never assume the role of an advocate and argumentative or adversarial evidence may be rejected'.[52]
[61] There is nothing inappropriate about someone in Dr Borges' position advocating for their patient elsewhere, however, little weight can be attributed to the evidence in these proceedings when determining whether the patient had capacity during a specific time period.
[62] Dr Borges conceded she had 'very limited knowledge' of the process required to make an application for workers' compensation at the time she prepared her 'Psychological Evaluation' of the Appellant for the purposes of this appeal.[53] Significant weight cannot be afforded to this evidence when it was not clear to the Dr Borges the actions necessary to lodge a workers' compensation application.
[63] In summary, Dr Skinner considered that the Appellant's cognition and insight were good at the time of examination and opined that the Appellant was capable of taking the necessary steps to apply for workers' compensation. Dr Pidgeon considered that the Appellant would have been able to apply and lodge an online application for worker' compensation, however, Dr Borges considers that the Appellant did not have this capacity during the limitation period.
[64] I am satisfied that the weight of the medical evidence supports a conclusion that the Appellant had capacity during the limitation period and her symptoms did not prevent her from lodging the application during the limitation period.
[65] The Appellant's resume indicates that the Appellant has a history of professional and academic achievements. The Appellant was qualified and worked as a teacher before obtaining an undergraduate degree in nursing and a Graduate Certificate in International Community Development Studies.[54]
[66] The Appellant underwent independent testing to confirm her proficiency in the English language in 2003[55] and relied upon this result to prove to potential employers that she had sufficient English language capability to undertake the responsibilities of employment.[56] Whilst having English as a second language may present difficulties when engaging with the legal system, having listened to the Appellant's evidence and read the substantial submissions drafted by the Appellant, I am satisfied that the Appellant's language abilities presented no impediment to lodging the application form for compensation within the limitation period. The Appellant's accomplishments prior to the limitation period are not evidence that the failure to lodge the application was not due to a reasonable cause, however they confirm that the Appellant was capable of understanding a process requiring the lodgement of an application form.
[67] The factual evidence provides a compelling picture of the Appellant's capacity during the limitation period. During the limitation period, the Appellant engaged in a number of other legal and administrative processes. Following the termination of her employment, the Appellant commenced proceedings in the FWC alleging unfair dismissal.[57] The Appellant drafted an 11-page statement for the FWC without assistance from a lawyer. The Appellant states that she did receive assistance from Women's House Shelta in creating the statement.[58] The Appellant represented herself at a directions hearing in the FWC in February 2018. On 7 March 2018, the Appellant settled her claim in the FWC and signed a Deed of Settlement.[59]
[68] The Appellant commenced proceedings in QCAT on 30 April 2019, seeking a review of a decision by AHPRA in relation to restrictions placed on her registration as a nurse. The Appellant gave evidence that she represented herself at a directions hearing in QCAT on 27 June 2019 and at the final hearing of her review application.[60]
[69] In cross-examination, the Appellant accepted that, although she had some assistance with the QCAT submissions, she commenced these proceedings on her own behalf by completing and filing the application.[61]
[70] Whilst the Appellant was experiencing some distress during the limitation period, the evidence indicates that this distress was not so impactful as to render the Appellant unable to engage with administrative processes. The act of self-representing in legal proceedings is significantly more onerous than lodging a workers' compensation application.
[71] The Appellant's activities in commencing an action and representing herself in a proceeding before QCAT along with the drafting and filing of substantial submissions were arduous. I accept that these actions caused the Appellant significant stress, however, the fact that the actions were completed demonstrates that the Appellant had significant capacity during this period.
[72] The Appellant gave evidence that she spent 'more than 200 hours' preparing submissions for the FWC, AHPRA and QCAT.[62] In submissions, the Appellant contends that this may have, in fact, taken thousands of hours.[63] The Appellant gave evidence that it took her approximately one hour to complete the online application for compensation with some typing assistance from Women's House Shelta.[64] This evidence indicates that the Appellant had the capacity to complete the application during the relevant time period, however chose to pursue the other matters during this time.
[73] Documentary evidence relating to the proceedings before AHPRA, QCAT and the FWC reveal a substantial amount of paperwork completed by the Appellant along with lengthy submissions. It seems that the Appellant put significant efforts into pursuing those actions and it was only when those processes ended that the application for workers' compensation was pursued. The Appellant stated on a number of occasions that she was not ignorant of the law[65] and she did not claim to be unaware of her workers' compensation rights. This is not a criticism of the Appellant, rather, it is recognition that other matters took precedence over the workers' compensation application. The Appellant was entitled to pursue those actions in other jurisdictions, however, making a deliberate decision to prioritise a particular course of action before lodging a workers' compensation application cannot be considered a 'reasonable cause'.
[74] During cross-examination, the Appellant accepted that she applied for and was accepted into a Graduate Certificate program in Acute Care Nursing at Griffith University in April 2019,[66] however, did not complete the course due to ill health. The Appellant accepted that on 30 April 2019, she contacted a Dr Wendy McIntosh about the prospect of obtaining professional training to assist her in getting back to work.[67] On 15 and 16 May 2019, the Appellant engaged in email communications with Mater Hospital regarding enrolment in a nursing refresher program.[68] The Appellant actively sought employment as a registered nurse with the Mater Hospital in August 2019,[69] a number of months beyond the limitation period but prior to the lodgement of the application on 16 September 2020.
[75] The Appellant attended upon Dr Pidgeon on 22 May 2019 and gave evidence that it was for the purpose of obtaining a Centrelink medical certificate to exempt her from 'work for the dole' obligations. In cross-examination, the Appellant accepted that she knew at this time that the certificate related to incapacity to work, however, she did not apply for workers' compensation that day because she 'couldn't concentrate' and 'was very sick'.[70] The Appellant acknowledged in cross-examination that the process of obtaining the medical certificate for Centrelink was very similar to the application process for workers' compensation but described the latter process as 'tedious' and that she 'didn't have the strength'.[71]
[76] I accept the Respondent's submission that the act of obtaining a medical certificate from Dr Pidgeon to submit to Centrelink on 22 May 2019 is materially the same as the process required to apply for workers' compensation. I also accept the Appellant's submission that that this medical certificate was sought because her mental health had not stabilised. It is clear that the Appellant was suffering from symptoms of mental illness, however, the actions required to arrange an appointment with a doctor, obtain a medical certificate and provide the document to Centrelink demonstrate that the Appellant was able to undertake a similar process to lodge a workers' compensation application.
[77] The Appellant's submits that she sought advice from various legal services and law firms and was not informed of relevant time limitations. It is not clear from these submissions whether the advice sought related to her proceedings before AHPRA, QCAT, or the FWC, however, given the reference to 'unfair dismissal/bullying', it does not appear that the advice sought related to workers' compensation.
[78] The Appellant submits that she was not given assistance from legal organisations and institutions and that opportunities levied for the average Australian were not directed towards her because of her skin colour.[72] No evidence was provided to support his claim.
[79] There is no evidence to support the contention that the conduct of legal entities contributed to the Appellant's failure to lodge the application for compensation within the limitation period. The Appellant gave evidence that law firms and legal aid did not assist her, however, admits that assistance was provided from other organisations.[73] The Appellant did not explain why she obtained assistance for these actions but not for her workers' compensation application until well after the limitation period had ended.
[80] The Appellant referred to other factors that had impacted her mental health, including the loss of relatives living overseas. The Appellant gave expansive evidence relating to the financial consequences of her unemployment and ongoing impact on her mental health. The Appellant was undoubtedly impacted by the circumstances surrounding her family and the consequences of losing her employment. The difficulty for the Appellant's case is that these circumstances did not prevent her from undertaking actions far more onerous than those involved with lodging a workers' compensation claim.
[81] The Appellant stated that she was 'not faking anything' and that she has been very sick and unwell.[74] To be clear, I do not consider that the Appellant is 'faking' the symptoms outlined in her evidence. I have no doubt that the Appellant has suffered significant distress as a consequence of the decline in her mental health. However, the relevant question is not whether the Appellant has a mental or psychological injury, it is whether there was a 'reasonable cause' for the failure to lodge the application. All workers who have suffered a psychological injury will have a variety of adverse mental health symptoms, however, the six month time period must be adhered to unless a reasonable cause is demonstrated. That has not occurred in this matter.
[82] I accept that the Appellant has suffered from symptoms of mental illness and stress throughout the limitation period. This is not unusual for workers seeking compensation for psychological injuries. However, the medical and factual evidence do not support a conclusion that the Appellant did not have capacity to lodge an application for workers' compensation during the limitation period. There was no reasonable cause pursuant to s 131(6) of the Act for the Appellant's failure to lodge the application within time.
[83] For the reasons set out above, and having considered all the evidence before the Commission, the Appellant has not discharged the onus of establishing that the failure to lodge her application for compensation within the limitation period was due to a reasonable cause. Accordingly, there is no proper basis upon which I can exercise my discretion to extend time pursuant to s 131(6) of the Act.
[1] As a result of legislative amendments under the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld), s 131(5) was renumbered as s 131(6).
[3] Appellant's closing submissions filed on 8 April 2022, page 10 ('Appellant's closing submissions').
[4] Green v Workers' Compensation Regulator [2019] ICQ 3, [8].
[38] T 2-62, ll 30-32; T 3-15, ll 20-21.
[46] Appellant's closing submissions (n 3) page 28.
[48] T 2-51, ll 21-26; T 3-6, ll 36-37; T 3-19, ll 44-46.
[50] [2009] QCA 111, [127]-[128].
[51] (2003) 214 CLR 118, 167-168.
[52] J D Heydon, Cross on Evidence, (2005), [29080], cited in R v Butler [2009] QCA 111 at [127] applying Fox v Percy (2003) 214 CLR 118, 167-168.
[60] T 1-39, ll 33-40; T 1-40, ll 8-32.
[63] Appellant's closing submissions (n 3) page 25.
[64] Exhibit 3; T 1-27, l 27 - T 1-28, l 24.
[65] T 1-12, l 44 - T 1-13, l 7; T 1-13, ll 35-39; T 1-15, ll 10-17; T 1-68, l 44 - T 1-69, l 4; T 1-70, ll 11-12.
[73] Women's House Shelta and the World Wellness Clinic for her submissions to QCAT, AHPRA and the FWC.
Turay
Workers' Compensation Regulator [2023] QIRC 1
(2015) 248 IR 53
(2003) 214 CLR 118