QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	
	Ratcliffe v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 076
	
PARTIES:	
	Ratcliffe, Peter
(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
	
CASE NO:
	WC/2014/213	
PROCEEDING:
	Appeal against decision of Simon Blackwood (Workers' Compensation Regulator)
	
DELIVERED ON:
	29 April 2015	
HEARING DATE:
	9 October 2014
13 April 2015 - Appellant and Respondent - Supplementary Submissions
	
MEMBER:
	Industrial Commissioner Fisher	
ORDERS:
	1.	The parties are directed to confer.
2.	The parties are directed to advise the Industrial Registrar within 28 days of the date of release of this decision of the outcome of their discussions.
3.	Failing agreement, the appeal will be relisted.
	
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - application for compensation - whether application lodged within the statutorily prescribed time - when appellant assessed by a doctor - whether the application was lodged within six months after that assessment - whether any delay is attributable to mistake or reasonable cause - whether the time should be waived on the grounds of mistake or reasonable cause - parties are directed to confer.
	
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 131(1), (5), s 132(2), s 141(1)
Acts Interpretation Act 1954, s 38

WorkCover Queensland v Downey (2001) 168 QGIG 381
Blackwood v Toward [2015] ICQ 8
	
APPEARANCES:	Ms G. Lawson, Counsel instructed by Firths Compensation Lawyers for the Appellant.
Mr S. McLeod, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator) for the Respondent.
	
Decision

[1]	Peter Ratcliffe lodged an application for compensation with WorkCover Queensland on 6 May 2013 for injuries to both hips and his back.  Mr Ratcliffe claimed to have sustained these injuries on 25 November 2010 while driving dump trucks at the Curragh Coal Mine located at Blackwater.  At that time Mr Ratcliffe was employed by Golding Contractors Pty Ltd as a rear dump truck operator.  

[2]	Under the Workers' Compensation and Rehabilitation Act 2003, to have a valid and enforceable claim Mr Ratcliffe was required to lodge the application for compensation within six months after the entitlement to compensation arose.  Mr Ratcliffe contends that his entitlement arose once he was assessed by Dr James Bodel, Orthopaedic Surgeon and advised by his report of 2 November 2012 of the connection between his injury and employment with Golding Contractors.  As such, his application for compensation was lodged within the statutorily prescribed time.

[3]	In the event the Commission does not accept the application is valid and enforceable then Mr Ratcliffe seeks that the time limit be waived for the reasons of mistake or a reasonable cause.  Mr Ratcliffe claims he was mistaken or otherwise he had a reasonable cause for failing to lodge the application within the prescribed time.  This is because he did not know that he could have made a claim or made it sooner until he received the report from Dr Bodel dated 2 November 2012.

[4]	The issues that arise for determination in the appeal are:

•	when did Mr Ratcliffe's entitlement to compensation arise; 
•	whether his application for compensation was lodged within six months after the entitlement to compensation arose;  
•	if not, whether the grounds of mistake or reasonable cause can be established; and
•	if the delay is attributable to one of these grounds, whether the Commission should exercise its discretion to waive the time limit.

Brief facts

[5]	Mr Ratcliffe has been employed since the 1970s by a number of companies in various States as a truck driver.  In 1999 he made an application for workers' compensation for a lower back and neck injury sustained during his employment as a truck driver with IPEC Transport over the period 1979-1999.  That claim was settled.

[6]	After leaving IPEC, Mr Ratcliffe worked for a number of other employers in Queensland before travelling to Western Australia and obtaining employment with Argyle Mines.

[7]	In May 2009 Mr Ratcliffe underwent decompression surgery on his back in New South Wales.  He was advised by his Orthopaedic Surgeon at the time that his condition arose from wear and tear caused by his job as a truck driver. He subsequently sought legal advice about a possible workers' compensation claim as a result of his back surgery.

[8]	In 2010 Mr Ratcliffe commenced work at Moura, originally employed on a labour hire basis, and later becoming a permanent employee of Golding Contractors in or about September 2010.  He said that although he had previously felt a dull ache in his left hip, one wet day as he arose from a chair, he felt like "someone had stabbed him, with the pain."  He was referred to Dr Robertson who authorised an X-ray.  That X‑ray showed Mr Ratcliffe had severe arthritis.  In December 2010, in Sydney, Mr Ratcliffe had a total hip replacement on the left side and needed three revision surgeries.  Mr Ratcliffe said he understood at that time that the problem with his hips was due to arthritis and as he believed this occurred naturally, he did not consider making an application for workers' compensation.

[9]	In 2011 or 2012, following legal advice, Mr Ratcliffe made an application for workers' compensation in Western Australia for a back injury said to have been sustained while working for Argyle Mines.  That claim is still ongoing.  He also made a claim in 2011 for total and permanent disability under his superannuation scheme.  Mr Ratcliffe said that although he had made a workers' compensation claim in 1999 he did not know whether he could make another claim for his back, having previously made a claim about his employment with IPEC.

[10]	In 2012, Mr Ratcliffe's Solicitors arranged for him to be examined by Dr Bodel, who practises in Sydney.

[11]	Dr Bodel provided two reports dated 2 October 2012 and 2 November 2012.  Dr Bodel took a history from Mr Ratcliffe and recorded that he had first experienced left hip pain in 2008 while employed by Argyle Mines and it was ongoing.  After taking the history, examining Mr Ratcliffe and reviewing relevant documentation, Dr Bodel expressed the opinion in his second report that the work performed by Mr Ratcliffe at Argyle Mines and for Golding Contractors aggravated his pre-existing arthritic condition.

[12]	As a result of Dr Bodel's opinion, Mr Ratcliffe lodged an application for compensation for the claimed injury of "left hip and right hip and back".  The application was dated 24 April 2013 but lodged on 6 May 2013.
When did Mr Ratcliffe's entitlement to compensation arise?

[13]	The first issue to be determined is when Mr Ratcliffe's entitlement to compensation arose.  Section 131(1) of the Act provides that for an application for compensation to be valid and enforceable it must be lodged within six months after the entitlement to compensation arises.  Section 141(1) of the Act provides that the entitlement to compensation arises on the day the worker is assessed by a doctor.

[14]	The expression, "assessed by a doctor" has been the subject of judicial consideration in the Industrial Court of Queensland.  Hall P held in WorkCover Queensland v Downey that expression to mean "as resulting in total or partial incapacity for work."  This expression was recently reconsidered by Martin P in Blackwood v Toward.  His Honour held that the decision in Downey should not be followed and that:

"In order for a doctor to 'assess' an injury as an 'injury' within the meaning of the Act there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment."

[15]	The decision in the present matter was delayed pending the delivery of the decision in Toward as the Commission as constituted believed that the matter before the President may impact on the present appeal.  Once the decision was delivered, the parties were given the opportunity to make submissions on the new law as it applied to this appeal.  Both parties provided supplementary written submissions.

[16]	In light of the decision in Toward, the Appellant's submissions remain unchanged.  However, the Regulator no longer relies on its earlier submissions concerning the meaning of s 141(1).

[17]	The Commission accepts that Mr Ratcliffe was assessed by a doctor within the meaning of Toward in late 2012.  The question is when that assessment occurred, given that Mr Ratcliffe consulted Dr Bodel on 2 October 2012 but the report expressing the connection between Mr Ratcliffe's injury and his employment with Golding Contractors was not issued until 2 November 2012.  The Appellant submits that the assessment for the purposes of s 141(1) is 2 November 2012 whereas the Regulator submits it was the date of the consultation, 2 October 2012.

[18]	Mr Ratcliffe was physically examined by Dr Bodel on 2 October 2012.  The Appellant submits this examination concluded that Mr Ratcliffe was totally and permanently incapacitated for work.  A second report was provided by Dr Bodel on 2 November 2012 following a request for his opinion about the connection between Mr Ratcliffe's work for Golding Contractors and his injury.  In that report Dr Bodel opined that Mr Ratcliffe's employment with Golding Contractors was a material aggravation of the underlying pathology being the degenerative process in the back and the hips which led to the need for the hip replacement operations.  The Appellant submits this opinion establishes that Mr Ratcliffe's back and hip injuries arose out of his employment with Golding Contractors.

[19]	Although the physical examination occurred on 2 October 2012, Dr Bodel's first report does not consider the relationship between Mr Ratcliffe's injury and his employment with Golding Contractors.  It was only in the second report that Dr Bodel expressed an opinion on this matter.  In light of His Honour President Martin's decision in Toward that there must be "some conclusion or expression of opinion that the injury arose out of the employment", I am of the view that the required expression of opinion was contained in Dr Bodel's report of 2 November 2012.  

[20]	The date of assessment for the purposes of s 141(1) is Friday 2 November 2012 and that is the day Mr Ratcliffe's entitlement to compensation arose.

Was the application for compensation made within the prescribed time? 

[21]	For Mr Ratcliffe's claim to be valid and enforceable it had to have been lodged within six months after 2 November 2012.
 
[22]	No evidence is before the Commission proving the application for compensation was lodged on Monday 6 May 2013, however, the parties agree this was the date WorkCover Queensland accepted lodgment.  Section 132(2) of the Act provides that the date of lodgment is the date the application was lodged with the insurer.

[23]	The Appellant submits that the application was lodged within the required time period but has not provided any explanation about how that conclusion was reached, for example, by reference to s 131 or to the Acts Interpretation Act 1954.  It should be noted that the Regulator did not take issue with the Appellant's contention that the application was filed within the time period should the Commission accept the Appellant's submission about the date of the assessment.

[24]	The effect of s 131(1) is that time commences to run from the day after the day the entitlement to compensation arises.  In this case the time commences on 3 November 2012, a Saturday.  There is nothing in the Workers' Compensation and Rehabilitation Act 2003 that prevents the calculation of the time period commencing on a Saturday nor does s 38 of the Acts Interpretation Act impact on the calculation going forward, except in circumstances that do not apply here.

[25]	Pearce and Geddes write in Statutory Interpretation in Australia, that "[T]he usual meaning of 'within' in this context is 'before the end of' the designated time which … is to be treated as exclusive of the day of the act in question."  Schedule 1 of the Acts Interpretation Act defines a "month" as a "calendar month".  Applying these meanings, the last day for lodging the application for compensation was 2 May 2013.  

[26]	The application was thus lodged outside the time prescribed by s 131(1) of the Act.  The Commission must then consider whether this time should be waived for one of the reasons set out in s 131(5).

Is the delay attributable to mistake or reasonable cause?

[27]	Both before and after the decision in Toward, the parties made submissions on whether the time should be waived.  However, on neither occasion did they consider the conclusion I have reached, viz., that the application was filed four days outside of the required time period.  

[28]	The Appellant's supplementary submissions address Mr Ratcliffe's lack of knowledge and understanding of the type of claims he could make and when he could make them.  However, Mr Ratcliffe signed the application on 24 April 2013, a date which falls within the time period.  There is no evidence before the Commission about what happened between the date of signing the application and the date of lodgment.  Arguably, the Appellant should have been alive to the calculation of the time period and elicited evidence about the gap between signing and lodgment.  The Commission has already noted the Appellant's consistent position that the application was lodged within the prescribed time and the absence of objection to that by the Regulator.

[29]	The Regulator's supplementary submissions about waiving the time period are premised on the date of assessment being 2 October 2012.

[30]	The submissions that have been made on waiving of the time period are of little assistance in resolving the outstanding issue.  The decision in Toward has had a significant impact on this matter, particularly the Regulator's position.  In the circumstances, and somewhat reluctantly given the length of time this matter has been on foot and the costs expended to date, the Commission considers the most appropriate course of action is to direct the parties to confer to determine whether an agreed outcome can be reached in light of the decisions made about the date of the assessment and the time period for lodging the application.  A Member of the Commission may be available to assist the parties if required.  This approach is not designed to give the Appellant another opportunity to justify the delay but affords the parties the chance to further consider and discuss their positions now that two key issues have been determined and in light of the resultant minimal time delay.

[31]	The parties are directed to write to the Industrial Registrar within 28 days of the date of the release of this decision advising of the outcome of their discussions.  If agreement is unable to be reached, the appeal will be relisted.