CITATION: Lyndal McNeilly AND Q-COMP (WC/2011/345) - Decision < QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

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1 CITATION: Lyndal McNeilly AND Q-COMP (WC/2011/345) - Decision < QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act s appeal to commission Lyndal McNeilly AND Q-COMP (WC/2011/345) VICE PRESIDENT LINNANE 22 May 2012 Appeal against decision of the Review Unit of Q-COMP - Application for compensation not lodged within 6 months - Substantial delay in making application - Explanation for delay not substantiated - Merits of prosecuting the substantive matter not good - Appeal dismissed - Time for lodging application for compensation not extended - Q-COMP decision confirmed - Workers' Compensation and Rehabilitation Act 2003 s. 131(1) and (5). DECISION [1] This is an appeal by Lyndal McNeilly (Appellant) against a decision of the Review Unit of Q-COMP (Q-COMP) dated 23 August That Q-COMP decision confirmed an earlier decision of WorkCover Queensland (WorkCover) not to waive the time for applying for compensation in accordance with s. 131 of the Workers' Compensation and Rehabilitation Act 2003 (Act). The Appellant asserted that, at the relevant time, she was employed as a Telemarketer with Gold Sun Enterprises Pty Ltd trading as Australian Discount Holidays (Employer). Brief History of the Claim [2] The Appellant lodged a claim for compensation dated 12 June 2011 with WorkCover (Exhibit 1) in respect of an injury said to have occurred in a car accident on the way to work on 15 March In correspondence dated 7 July 2011 WorkCover provided the Appellant with written notice of its decision not to accept the Appellant's application for compensation as it was lodged outside the period provided for in s. 131 of the Act (Exhibit 2). [3] On 16 July 2011 the Appellant lodged an application for review of that WorkCover decision to Q-COMP (Exhibit 3). Q-COMP provided reasons for its decision to confirm the WorkCover decision in correspondence dated 23 August 2011 (Exhibit 4). It is against this Q-COMP decision that the Appellant currently appeals. Issue for Determination [4] The issue for determination in this appeal is whether the time period provided for in the Act for lodgement of an application for compensation should have been waived by WorkCover pursuant to s. 131 of the Act. Section 131 of the Act relevantly provides as follows: "131 Time for applying (1) An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises. (5) 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) (b) (c) mistake; or the claimant's absence from the State; or a reasonable cause.". [5] Section 141 of the Act relevantly provides as follows: "141 Time from which compensation payable (1) The entitlement to compensation for an injury arises on the day the worker is assessed by - (a) a doctor; ".

2 2 Onus of Proof [6] The Appellant carries the burden of proof on the balance of probabilities: see Rossmuller v Q-COMP 1. The Appellant thus must prove, on the balance of probabilities, that the claim is one for acceptance. Evidence [7] The Appellant relied upon the evidence of the following witnesses: the Appellant herself. As the Appellant was self-represented and suffering a psychiatric or psychological condition she was given the opportunity to provide her evidence-in-chief via a Statement (Exhibit 5); Dr Gregory Beak, the Appellant's general medical practitioner; and Ms Soledad Saez, a telemarketer employed by the Employer at the relevant time. [8] Q-COMP relied upon the evidence of the following witnesses: Ms Elaine Hulsman, currently a Director of the Employer and, at the relevant time, the General Manager of the Employer; and Ms Kristine Alden, the current Manager of the Employer and, at the relevant time, the Supervisor of the Appellant. [9] There appeared to be no dispute as to when the entitlement to compensation arose under s. 141(1) of the Act i.e. the date the worker was assessed by a doctor as having a total or partial incapacity for work as a result of the injury: see WorkCover Queensland v Downey 2. Dr Peter Alroe issued a medical certificate for the purposes of the Appellant's GE Money insurance claim on 17 May In so doing Dr Alroe listed the date that he first saw the Appellant for a cervical sprain as 17 March 2006 and reported that the Appellant's cervical sprain was the direct result of a motor vehicle accident. The Appellant was certified as totally incapacitated for work during the period 17 March 2006 to 17 July It would thus appear that the Appellant's entitlement to compensation arose as of 17 March [10] The six month time period for lodgement of an application for compensation under s. 131(1) of the Act required the Appellant to lodge her application for compensation by 16 September In lodging her application for compensation on or about 12 June 2011 the Appellant was some four years and thirty-eight weeks past the expiration period provided for in s. 131(1) of the Act, and some five years and thirteen weeks after the date of injury. Clearly there was a substantial delay in the Appellant lodging her claim for compensation. [11] The Appellant predominately relied upon her psychological or psychiatric medical condition as a reasonable cause and/or an explanation for the delay. Dr Beck's evidence was that the Appellant had suffered a number of diagnoses and he had been provided with various reports from the Appellant's previous general practitioner and her Psychiatrist. He was not the Appellant's treating general medical practitioner at the time of the motor vehicle accident on 15 March Dr Beak commenced to treat the Appellant on 12 October The Appellant's treating general medical practitioner at the time of the accident would appear to have been Dr Alroe. [12] According to Dr Beak the Appellant was diagnosed as having an adjustment disorder with an anxious mood in There had also been a diagnosis of a schizoaffective disorder and she had suffered from altered moods as a result of depression. There was also evidence of the Appellant having suffered psychotic episodes in Dr Beak said that the Appellant had fairly poor coping skills although he was of the opinion that the Appellant was able to care for herself. [13] The following is clear from the Appellant's evidence: that in a covering letter to WorkCover dated 12 June 2011 (Exhibit 6) the Appellant said that her "car was written off and sold as a wreck to Jap Auto Parts, Maroochydore I have enclosed details of claim with AAMI insurance showing the day and the details of car" and further that she "rang CTP insurance and they said because I was at fault in the accident, I wasn't eligible to claim"; 1 Rossmuller v Q-COMP (C/2009/36) at p. 4 - Decision < 2 WorkCover Queensland v Downey (2001) 168 QGIG 381

3 3 that the Appellant having completed a Membership Application to SUNsuper on 22 April 2005 subsequently completed an Employee Statement for a total and permanent disablement claim which was signed by her on 10 August 2006 (Exhibit 8). The Appellant acknowledged that she completed this eight page document. In this document the Appellant stated that: her total disablement occurred on 8 February 2006; she finished work because of her disablement on 8 February 2006; the nature of the disablement which caused her to finish work was stated to be "my hours steadily decreased over that year as my depression illness got worse. In Dec/05 and Jan/06 I was averaging 11 hrs per week. By Feb/06, I could not work at all and haven't done so, for more than 6 mths "; and in the list of occupations and duties that the Appellant had performed she indicated casual employment with the Employer as a Sales Consultant from April 2005 to February 2006 and also as a casual permanent Sales Consultant with Brag About it Homewares from October 2005 to December In evidence the Appellant said that Brag About it Homewares was her business which she started in October 2005 and finished in March 2006; the Appellant completed and signed a SUNsuper Benefit Payment Application for a total and permanent disablement claim also on 10 August 2006 (Exhibit 9). In that document the Appellant said that she commenced her employment with the Employer in April 2005 and finished that employment on 8 February 2006; the Appellant completed a document titled First Notice of Claim for Disability Benefits for GE Money and signed the document (Exhibit 10). It is apparent that the document was signed some time in May Dr Alroe completed the medical practitioner's report in respect of the cervical sprain injury resulting from the motor vehicle accident. In the section titled Statement of employer or self (if selfemployed), the Appellant stated that the name of the employer or organisation was "Lyndal McNeilly Homewares", that her occupation at the time was "Sales Consultant", that she was working on average thirty hours per week and that her usual duties were "buying stock, selling stock at parties and taking orders"; the Appellant completed a Claim for Continuing Disability Benefits for GE Money and signed it on 14 October 2006 (Exhibit 11); the Appellant completed a Claim for Continuing Disability Benefits for GE Money and signed it on 13 February 2007 (Exhibit 12); and the Appellant was in receipt of a Disability Support Pension as and from 24 February 2006 as she was unable to work at that time because of depression. [14] When advised in cross-examination of these various documents that the Appellant had completed prior to February 2007, Dr Beak's evidence was that the Appellant would have had the capacity to have completed a WorkCover compensation application form between March and December Dr Beak had provided a letter to WorkCover dated 20 September 2011 which indicated that the Appellant was incapacitated and suffering from a schizoaffective disorder from March That letter also stated that, as a result of the schizoaffective disorder, the Appellant was incapable of making a claim for workers' compensation within the usual time frame. At the time of providing this correspondence Dr Beak was not aware that the Appellant had completed the abovementioned documents. I accept that Dr Beak was attempting to assist his patient when providing the correspondence dated 20 September The evidence is such that the Appellant did, and does, confide a lot in Dr Beak and that she uses Dr Beck as a sounding board. The Appellant thus relies substantially upon the maintenance of that trust relationship between herself and Dr Beak. [15] Given Dr Beak's evidence that the Appellant would have had the capacity to have completed the WorkCover compensation application form between March and December 2006, the Appellant's appeal against the failure of WorkCover to extend the time for lodgement of her compensation claim based on her psychological or psychiatric medical condition must fail. [16] Whilst the primary reason given by the Appellant for not lodging a workers' compensation claim within the statutory time limit was her psychological or psychiatric medical condition, she also raised the content of a discussion she allegedly had with Ms Alden on or about 18 March 2006 as a potential reason for the delay, relying upon s. 131(5)(a) of the Act i.e. a mistake. In this regard the Appellant asserted that when she went in to the Employer's office some three days after the car accident she asked Ms Alden "whether there was any cover

4 4 for the accident on the way to work that day". The Appellant asserted that Ms Alden responded by saying that "if it didn't happen on the sales floor in front of the managers you are not entitled to claim". Whether this question was asked about workers' compensation, about any insurance policy that the Employer may have had for employees, or, whether the question was posed at all is difficult to assess (Exhibit 5 para 5). [17] Copies of Ms Alden's diary for the relevant period did not indicate any meeting with the Appellant in the period 11 March 2006 through to 19 March Ms Alden's evidence was that she had no recollection of making any appointment with the Appellant to discuss her return to work on 18 March 2006 or at all. Further, Ms Alden did not recall the Appellant coming into the workplace with a brace on her neck. In her evidence Ms Alden said that had such an arrangement been made she would have diarised the appointment. [18] Throughout the course of the hearing the Appellant regularly stated that her memory was not good given the medications that she had been prescribed and which she had taken during the past five or so years. It is thus very difficult for me to accept that Ms Alden said the words ascribed to her by the Appellant on 18 March I therefore find that the Appellant was not told on 18 March 2006, or at any time, by Ms Alden that she had to be on the sales floor in front of the managers to be entitled to make a claim for workers' compensation. Even on the Appellant's own account of what occurred I am unable to find that the Appellant asked Ms Alden about workers' compensation. [19] In any event, if the conversation did take place as alleged by the Appellant, the Appellant would be relying upon a mistake of law. A mistake of law could not be relied upon to require Q-COMP or WorkCover to waive the time period under s. 131(1)(5)(a) of the Act. Merits of the Appeal [20] In Pearce v Q-COMP 3 the President said, in relation to an application to waive the time limit in s. 550(1)(a) of the Act, the following: " The apparent strength of a potential appellant's underlying case is not necessarily decisive of the question whether non-compliance with the time limit should be waived or excused. However, that consideration is of no moment here. The Commission was satisfied that the underlying case was weak. It would be wrong to go behind the Legislature's assessment that justice will best be served if a time limit of 20 business days is observed, is insisted upon and to hear a case, which in all likelihood, will fail.". [21] In this case the Appellant's prospects of success in claiming compensation for the injury sustained in the motor vehicle accident on 15 March 2006 are less than good i.e. the underlying case is weak. Given the abovementioned documentation completed by the Appellant herself, it is highly doubtful that the Appellant was an employee of the Employer on 15 March Thus it is highly doubtful that the Appellant would succeed in establishing that she was a "worker" under s. 11 of the Act. At best the Appellant appeared to be self-employed as at 15 March [22] In this regard the following matters are relevant: the Appellant was a casual employee who last worked for the Employer on 8 February 2006: see Exhibit 15. In her Employee statement for SUNsuper signed 10 August 2006 the Appellant stated that her hours had "steadily decreased over that year as my depression illness got worse. In Dec/05 and Jan/06 I was averaging 11 hours per week. By Feb/06 I could not work at all". Exhibit 15 confirmed what the Appellant stated in that document i.e. her hours had steadily decreased in December 2005 and January 2006 and that she was not working at all by February 2006 in that it provided as follows: in the week ending 30 November 2005 the roster had the Appellant as OFF on five days of the week and a N/S on the sixth day; in the week ending 7 December 2005 the roster had the Appellant as OFF on two days of the week and a N/S on one day; in the week ending 14 December 2005 the roster had the Appellant as OFF on six days of the week; in the week ending 21 December 2005 the roster had the Appellant as OFF on six days of the week; 3 Pearce v Q-COMP 3 (C/2010/64) at para [4] - Decision <

5 5 in the week ending 28 December 2005 the roster had the Appellant as OFF on six days, which would include the Christmas period; in the week ending 4 January 2006 the roster had the Appellant as OFF on two days of the week and a N/S on two days; in the week ending 11 January 2006 the roster had the Appellant as OFF on two days of the week; in the week ending 18 January 2006 the roster had the Appellant as OFF on one day of the week and a N/S on two days; in the week ending 25 January 2006 the roster had the Appellant as OFF on three days of the week and a N/S on one day; in the week ending 1 February 2006 the roster had the Appellant as OFF on two days of the week; in the week ending 8 February 2006 the roster had the Appellant as OFF on one day of the week and a N/S on 4 days. The Appellant worked for five hours on 8 February 2006; in the week ending 15 February 2006 the roster had the Appellant as OFF on three days of the week and a N/S on two days; and after that date the Appellant was not listed on the roster. in the Employee statement for total and permanent disablement claim to SUNsuper signed on 10 August 2005 the Appellant acknowledged that her total disablement occurred on 8 February 2006, that she finished work because of her disablement on that day and that by February 2006 she could not work at all because of her disablement; in the SUNsuper Benefit Payment Application also dated 10 August 2006 the Appellant stated that she finished employment with the Employer on 8 February 2006; in the First Notice of Claim for Disability Benefits for GE Money completed sometime in May 2006 in respect of the cervical sprain injury resulting from a motor vehicle accident, the Appellant said that she was working as a Sales Consultant for her own company at the time of her disablement; and the Appellant received a Disability Support Pension as and from 24 February 2006 as depression had resulted in her being unable to work from that time. [23] As for the evidence of Ms Saez she claimed to have a clear recollection of the relevant events. However her evidence was at odds with the evidence of the Appellant in the following respects: Ms Saez had the motor vehicle incident occurring in mid 2006 whereas clearly the accident occurred on 15 March 2006; Ms Saez had the Appellant working with a neck brace in about mid 2006 whereas the Appellant's evidence was that she attended at the Employer's office on or about 18 March 2006 with a neck brace; Ms Saez said that she clearly recalled the Appellant with a sales slip in her hand when she first saw her at the Employer's premises with a brace on her neck i.e. that the Appellant was performing duties on that day; Ms Saez said that the first occasion that she saw the Appellant with a brace on her neck was the actual day of the motor vehicle accident which the evidence indicated occurred on 15 March 2006; and Ms Saez's evidence is that she saw the Appellant at work with a brace on her neck on a number of days subsequent to the date of the motor vehicle accident. No such evidence was given by the Appellant. [24] Whilst the Appellant was re-examining Ms Saez I indicated to the Appellant, in the absence of Ms Saez, that Ms Saez's evidence had not been consistent with her own evidence and that she might deal with that in re-examination. The Appellant's response was that Ms Saez probably had a better recollection than she did at the time as she was psychiatrically unwell. I am more inclined to prefer the evidence of the Appellant over that of Ms Saez given that Ms Saez had only in the last twelve months been asked to recall what occurred around

6 6 March 2006 and the fact that the injury resulting from a motor vehicle accident on 15 March 2006 is the subject of the substantive application. [25] It is quite clear from the evidence that the Appellant was not working for the Employer as at 15 March 2006 when she had the motor vehicle accident. She may have been driving to the place of her former employer on that day, but, if she was driving then it was to deliver homewares to former fellow employees i.e. she was driving in the course of her own business. The fact that she finished work for the Employer on 8 February 2006 was obviously clear to the Appellant in 2006 when she was completing the various forms mentioned above. Given the various ailments suffered by the Appellant between 2006 and the date of hearing it may be that the Appellant simply could not recall the exact events of 2006 at this time. [26] The Appellant has obviously had a very difficult life, at least in the last five or so years, and one has great sympathy for her. The Appellant on a number of occasions expressed great gratitude to her father who obviously assisted her throughout her difficult times. However, the Commission, Q-COMP and WorkCover are bound by the provisions of the Act. The Legislature has established the six month time limit in s. 131(1) of the Act and also the parameters for WorkCover to extend that time as provided for in s. 131(5) of the Act. On this occasion the Appellant has failed to prove, on the balance of probabilities, that her claim is one for acceptance. [27] In all the circumstances I am unable to determine that the Appellant had a reasonable cause for the substantial delay in lodging her application for compensation with WorkCover. I dismiss the appeal in WC/2011/345. [28] I thus confirm the decision of Q-COMP dated 23 August 2011 to reject the Appellant application for compensation. [29] I determine and order accordingly. D.M LINNANE, Vice President. Hearing Details: 2012 February 22 April 2, 17, 18 April 23 (Applicant's Written Submissions) April 26 (Q-COMP's Written Submissions in Reply Appearances: Ms L. McNeilly on her own behalf, Mr F. Lippett of Counsel directly instructed by Q-COMP. Released: 22 May 201