WCRA: assessed injury – entitlement – compliance – secondary symptoms

Barraclough v WorkCover Queensland [2012] QDC 321

Background:

The applicant/claimant had an assessed injury for chemical burns to her hand, but claimed reflex sympathetic dystrophy (RSD) in her Notice of Claim for Damages (NOC), which was not assessed or accepted by WorkCover Queensland (WorkCover). WorkCover considered the NOC was not ‘compliant’ because the applicant did not have ‘entitlement’ for the ‘injury’ RSD. The applicant sought a declaration inter alia as to compliance and in so doing the determination of the question of injury and the assessment.

Discussion:

His Honour Durward SC DCJ considered the legislative scheme of the Workers’ Compensation and Rehabilitation Act (WCRA). In so doing, His Honour helpfully reviewed the seminal decisions on the description of “injury” for the purpose of assessment, entitlement and compliance under the WCRA and its predecessors:

 

His Honour considered the medical evidence as to the nature of the injury as opposed to the precise manner in which it was recorded in the Application for Compensation, Notice of Assessment or NOC. This appeared to be of more significance since the introduction of WorkCover’s ‘paperless’ administration system:

 

[57] I consider that the debate in this case has largely been fueled by the administrative system implemented by WorkCover. It is no longer a requirement, it seems, for a claimant to record in writing the description of an injury. A claimant can, for example, orally describe an injury for an officer in WorkCover to record. The latter record – for example, inter alia, see “Appendix A” – seems then to be regarded as the definitive description of the injury. There undoubtedly is a margin for error in comprehension or recording by the WorkCover officer, so much simply being the consequence of human nature: for example, the claimant’s ability to articulate symptoms; and the concentration on the task and the time given to record the information by the WorkCover officer.

[58] Of course, as I have already observed, there is probably only one written record: that is, that created by WorkCover. Hence in a dispute about a particular oral communication, a claimant may be at a disadvantage.

[59] These observations should not necessarily be construed as a criticism of the administrative system. However, they are a “critique” and the consequence it seems to me should be a less literal and more expansive or conciliatory construction of information provided by a claimant who uses what has been described by Counsel as the “paperless administrative system” implemented by WorkCover.

[60] It is axiomatic in my view that this administrative system has been implemented because potentially it is economically and administratively beneficial for WorkCover’s operations. That is not to say that it does not confer benefits to claimants, but the emphasis, as a matter of common sense – exercised in the commercial context – would be on the former rather than the latter.

Ultimately, His Honour considered the RSD was simply a symptom of the assessed injury:

 

[47] Similarly, Mr Crow SC referred to a passage in Luntz on Damages (4th edition), concerning the development of a post injury condition and the causal connection with the original injury. Such matters are referred to in Adelaide Chemical & Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 and Mitchell v Clancy [1960] Qd R 62. The thrust of those cases are, in simple terms, that the subsequent development of a condition was not a new injury but rather a not unexpected consequence of the original injury. Whilst I accept that those cases dealt with common law claims for injuries, the approach of the courts in making that determination is, to some extent, a relevant consideration-by way of analogy to the considerations which need to be applied to the situation in this application and the statutory regime in which the applicant’s claim is made.

[61] In this case it is likely that the administrative system has affected the construction of the description of the original injury to some extent. However, my review of the medical evidence in the context of the case authorities has persuaded me in any event that the RSD is not a separate injury and is a symptom of the continuing impact of the injury as originally described.

 

Brisbane Barrister – David Cormack

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