May 14, 2019

Insurance

THE SITUATION.

In Green v Workers’ Compensation Regulator [2019] ICQ 3, the Industrial Court of Queensland had to consider whether an insurer had failed to properly waive the timeframe for a claim for statutory compensation to be lodged in circumstances where the Appellant/Claimant had contracted asbestos related injuries.

Norman Green (the Appellant/Claimant) commenced his working life at the age of 13 in 1945. He worked in a variety of jobs until he retired in 1996. For the purposes of this appeal, the relevant work was over two brief periods in 1948 and 1949 when he was subjected to substantial exposure to asbestos, asbestos dust, debris and fibres.

In April 2004, the Appellant/Claimant was diagnosed with asbestos related pleural plaques.

In July 2009, 5 years later, he was diagnosed with asbestosis.

The Appellant/Claimant lodged applications for statutory workers compensation in Queensland for each illness (2004 – pleural plaques; 2009 – asbestosis) (the claims).

THE ISSUE.

The claims were lodged outside the time limit provided in the Workers’ Compensation and Rehabilitation Act 2003 (the Act) – by almost 11 years for the pleural plaques condition and over five years for the asbestosis condition.  

Section 131 (1) of the Act provides:

“An application for compensation is valid and enforceable only if the application is lodged by the claimant within six months after the entitlement to compensation arises.”

The six month time limit may be waived by an insurer under s131 (5) of the Act:

“An insurer may waive sub-section (1) … 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.”

The insurer declined to waive the time limit. That decision was confirmed on review by the Workers Compensation Regulator (the Regulator). That decision was confirmed on appeal by the Queensland Industrial Relations Commission (the Commission).

What is a "REASONABLE CAUSE"?

The issue on appeal to President Martin of the Industrial Court was whether there was a “reasonable cause” (section 131 (5)) for the Appellant/Claimant’s failure to lodge the claims within the timeframe prescribed by the Act (section 131 (1)) such that the insurer should have waived noncompliance with the primary time frame.

On appeal the Industrial Court held:

[12] Whether a “reasonable cause” exists for the purposes of s131 (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.

On appeal, the Appellant/Claimant’s key submissions were:

  1. The Appellant/Claimant was reliant upon his wife (who was not a lawyer but had worked as a legal support officer in New South Wales and was a Justice of the Peace) in relation to all claims for compensation and relevant paperwork.

  1. The Appellant/Claimant had made unsuccessful claims with the Dust Diseases Board in New South Wales.  He submitted that he was not told and did not know of his entitlement to possible compensation in Queensland.

  1. The Appellant/Claimant underestimated the seriousness of the conditions during the timeframe the claims should have been lodged

THE DECISION.

The Industrial Court was not satisfied there was a reasonable cause for the Appellant/Claimant to have not lodged his claims within time. The Industrial Court found:

[44] With respect to the first diagnosis in 2004, the appellant made a conscious decision to do nothing. He was ignorant of the right to seek compensation and such ignorance cannot constitute a “reasonable cause”. With respect to the second diagnosis in 2009, he knew of some capacity to seek compensation because an application was made to the Dust Diseases Board. That application, though, was made outside the six-month time period.

The appeal was dismissed. The judgement can be found here.