WCRA: “injury”, “event” & “notice of assessment”

Bakhit v Brisbane City Council [2014] QDC 240

The applicant sought declarations in relation to “entitlement” and “compliance” under the Workers Compensation and Rehabilitation Act 2003, together with costs.

The application was complicated by the applicant not being able to understand English; having provided several dates for the putative back injury and lodging a review of the insurer’s decision to The Regulator, whilst the declaration was on foot.

It appears the applicant had a certificate injury and hence was not precluded from accessing common law damages, although having accepted the lump sum offer of $71,905.00.

Durward SC DCJ

The evidence about the timing of the event

[30] The applicant had consulted a number of medical practitioners over time about the event in which the injury occurred. Various dates were described by him, namely: 09 October 2011, 10 November 2011, October 2011, 06 July 2011, 01 September 2011 (to Dr Boys on 13 July 2012); and 13 July 2013 (to Dr Campbell on 30 October 2013).

[31] A note in the applicant’s records of a consultation in December 2011 at the Princess Alexandra Hospital reported “12 m. of lower back pain radiating down the left side of his left leg. He has had no injury that brought this on and it has gradually built up over time.” Dr Ibrahim records various consultations about aches and pain and recorded a complaint by the applicant, of lower back pain on 06 December 2008. These matters are not determinative about the date of any relevant injury in my view. They are matters that customarily would be the subject of evidence at a trial. There is nothing remarkable about that type of history where there may be some inconsistency, in the retelling or recollecting, of the precise timing of the event. The applicant seems to have been able to continue to work through the latter periods, but was on his account impeded after the latest relevant event described by him and could not work as he had done before.

Authorities

[32] In Andersen v Aged Care Employers Self Insurance [2014] QSC 101 there was an application about two injuries, one on 22 August 2007 and the other on 23 August 2007. It transpired that the applicant had not worked on the 22 August 2007. He accepted that he had been mistaken and that the date must have been 20 or 21 August 2007. Compensation was paid for lower back injury having been sustained on 23 August 2007, on the basis of exacerbation of symptoms from pre-existing degeneration. However, the insurer alleged that because of the reference to the date 22 August 2007 in the notice of claim for damages as the date of the injury, and the date in the notice of assessment being 23 August 2007, the notice for claim for damages was not compliant.

[33] Dalton J at [23] wrote:

“An injury is not the means by which damage is inflicted, but is the effect on the person of the worker of an event …”. The injury in the application for compensation was described as an L5/S1 prolapsed disc. This was accepted. The applicant was complaining only in respect of one injury and one set of symptoms. Hence there was one injury assessed for an event which may have occurred on the 22nd or 23rd of the relevant month.”

[34] Her Honour said at [28] that the task of the employer in issuing a notice of assessment was “to assess injury and impairment, not to make findings about what events caused the injury or the date those events might have occurred.”

[35] Her Honour held that the injury in the notice of assessment was the same injury as described in the notice of claim for damages and made a declaration that the applicant was entitled to seek damages for the injury in the notice of claim pursuant to section 237(1)(a)(i) of the Act.

[36] See also Lincoln v Qantas Airways Limited [2012] QDC 278 per Samios DCJ, where there was one injury (a disc prolapse) but eight claims for compensation made over time. Hence the injury was an “over a period of time” injury covering approximately six years. His Honour said that the date of injury in the notice of assessment was not conclusive. His Honour referred to Sayers v Hanson t/a All Guard Security Services [2011] QSC 70; and to Andersen (supra).

[37] The thrust of all of those cases is that, so far as is relevant, the issuing of a notice of assessment was to assess injury and impairment, not to make findings about what events caused the injury or the date those events might have occurred.

[38] In Ley v Woolworths Limited [2013] QSC 59 there was a compensation application in which the applicant did not recall any specific incident but nominated 04 January 2011 as the date upon which the injury occurred. There was a medical report that referred to “gradual onset of pins and needles”. The notice of assessment referred to the date of 04 January 2011 and “exacerbation of pre-existing degeneration of the cervical spine”. The self-insured employer denied compliance. However, North J made a declaration of compliance on the basis that there was the same injury referred to in the application for compensation and in the notice of claim for damages.

[39] In MacDonald v Teys Australia Distribution Pty Ltd [2013] QDC 139 the applicant sought a Declaration the he was entitled to seek damages. There were two incidents. The injuries were described differently by medical practitioners, but all referred to the thoracic/lumbar spine injuries. Samios DCJ followed North J in Ley v Woolworths (supra) in respect of there being no suggestion that there had been more than one injury. His Honour said that arguments about the nature, extent and cause of injury were more appropriately dealt with at trial. He declared that the applicant was entitled to seek damages in accordance with s 237(1)(a)(i) of the Act.

[40] This decision also reflects the role of the notice of assessment process: that is, whether the injury has been assessed, not the event which caused it. A similar approach was taken in Bell v Australian Meat Holdings Pty Ltd 2003] QCA 209; Muckermann v Skilled Group Limited & Anor [2013]QSC 51; Dowd v Swift Australia Pty Ltd [2008]QCA 228; and Berhane v Woolworths Limited [2013] QDC 194.

[41] In Otto v Mackay Sugar Ltd & Anor [2011] QSC 215 a declaration would have been made by Douglas J, but for the fact that the factual basis was not made out. His Honour found that there was no specific time or date of injury even though in an application for review of a statutory decision, a time and date was referred to in respect of the timing of the relevant event, but may not have been made by the applicant himself. The evidence was that the medical issue had developed over a period of time rather than having been discretely caused in a specific incident at a specific time.

[42] Otto is distinguishable from circumstances that I am required to resolve here. His Honour relevantly wrote, at [17]:

“In other words, to decide that ‘the injury’ referred to in the workers’ compensation claim was not the same as the one sought to be litigated in the common law damages claim merely because the application for workers’ compensation, which may not have been the applicant’s own document, mistakenly nominated a specific date as the date of injury would lead to an artificial result but ignore the true facts.”

[43] In Otto his Honour wrote, in reference to the jurisdictional matter,

“[18] … I was not directed to any section purporting to limit the right to grant declaratory relief in this Court, although the existence of a statutory alternative remedy is certainly relevant to the issue whether I should exercise my discretion to grant such relief.”

His Honour footnoted in respect of the latter statement, Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421; and Edwards v Santos Ltd [2011] HCA 8 at [36][39].

[44] In Forster v Jododex the High Court considered the issue of declaratory relief in the context of a separate statutory proceedings being conducted by a Mining Warden. Walsh J wrote, at p 427:

“In my opinion, when a special tribunal is appointed to it by statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which depended entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute.”

and Gibbs J, at pp 435-436, wrote:

“The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that, ‘under O. XXV, r 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion … however, the jurisdiction may be ousted by statute, although the right to a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words … in the present case it was submitted that the act reveals an intention that the decision of a warden to grant or refuse an authority to enter should not be subject to review in proceedings for a declaration under s. 10 of the Equity Act.

With all respect, I find it difficult to see any reason why the Court should have lacked jurisdiction to declare that Jododex held the right which it claimed, mainly the right of the holder or an expiration licence validly renewed.”

[45] In Edwards v Santos Ltd [2011] HCA 8; (2011) 85 ALJR 464, Heydon J discussed the jurisdiction to grant declaratory relief, at [36] – [39]. His Honour dealt with, inter alia, the consequences of declaratory relief not being granted and although the circumstances he was considering were different factually and contextually, there is nevertheless a consequence of significance that the applicant potentially faces if the declaration is not made here, where the respondent has issued a notice of assessment in respect of the one injury claimed by the applicant.

Discussion

[46] The respondent submitted that this court cannot “overturn” or “review” a decision by the workers’ compensation regulator. Be that as it may, there are specific differences in these two jurisdictions.

[47] The statutory review process was conducted on the papers by an officer of the Workers’ Compensation Regulator. Conflicts in factual matters and medical opinion were not the subject of testamentary evidence that was subject to testing by cross-examination. The parties were entitled to and did write submissions for consideration by the regulator, or at least the applicant’s solicitors did.

[48] The view of the workers’ compensation regulator is expressed in respect of a statutory compensation scheme. A notice of claim for damages is made pursuant to common law. Different considerations apply. A decision in this court, based on the notice of assessment that was issued, does not have the character of and is not an appeal from the Workers’ Compensation Regulator.

[49] True it is that on the first day of the hearing I expressed concern that the impending decision of the workers’ compensation registrar in the review instituted by the applicant might lead to conflicting decisions. The hearing of the application was adjourned for that reason.

[50] However, I have had an opportunity to reflect on that concern and it seems to me that there is no issue of conflict.

[51] I note that Douglas J in Otto referred to an inability to review the decision made under s 540 of the Act because Q-Comp had no authority to review a decision that a person was not entitled to seek damages, the applicant having previously lodged an application for compensation for the injury. With respect, the context of that statement is not entirely clear but there is a potentially broader and more exhaustive enquiry in this court than that conducted by the workers’ compensation regulator.

[52] The making of declarations in this court, as sought by the applicant, allows the claim to proceed to trial. At trial the evidence is given by way of witness testimony, subject to testing by cross-examination; and by relevant documents tendered to the court upon which there may be cross-examination. There are pleadings filed that define the issues. The lawyers of course make submissions, written and/or oral, to the court on those issues about the evidence and the pleadings.

[53] The respondent relied on observations of Dr Boys, made in the course of a telephone conversation with Mr O’Sullivan and his instructing solicitor on 16 July 2014. Dr Boys had assessed the records of general practitioner Dr Ibrahim, on the basis of assumptions and without knowing what the applicant would have said specifically about his having continued to work after the relevant date, on his account, of the injury. Dr Boys also expressed doubt that Dr Ibrahim’s diagnosis of sciatica in July 2007 was in fact correct.

[54] The applicant, in an affidavit sworn on 20 August 2014, said that he had attended Dr Ibrahim on 16 July 2011 for the pain he was suffering after lifting a concrete block at work. He was prescribed medication and continued to work for about two months. The pain became worse and he saw Dr Ibrahim again and was sent for scans. The applicant says that every day that he worked after the injury, he was in pain and the pain was getting worse. He tried not to do as much work as he did before the injury. He was afraid to tell his supervisor about the injury because he believed this would make his job uncertain and because Dr Ibrahim had not told him to stop working. It was after the scans were completed that he was told that he did have a serious problem with his back.

[55] Dr Boys stated in the telephone conversation that the fact that the applicant continued to work in July and August and into September “without restriction” was such that if he had suffered an acute disc protrusion in July, he could not have been able to work. He said it would not be possible to be asymptomatic as a labourer for three months. He said that an acute protrusion in July with no symptoms or disability or minimal symptoms or disability until September when it became worse, was not possible. The CT examination in October 2011 demonstrated an acute disc derangement rather than a chronic disc.

[56] On the other hand, Dr Campbell, in the course of a telephone conversation with the applicant’s lawyer on 20 August 2014, said – according to the lawyer’s notes of the conversation – that “someone can work with a disc prolapse for months after sustaining this injury. People often work with symptoms of pain and just battle on.” He said that pain medication and avoidance of work that exacerbated pain levels, “was consistent with what happens to many people especially as there is often, as there was in this case, a delay in diagnosis’. The applicant had told him that he had left sciatica at the time of the injury which was consistent with a disc prolapse occurring at this time.

[57] It seems to me that Dr Boys was placed in an unenviable position in being asked to comment on documentary material without having seen the applicant (at least more recently), taken a specific history from him relevant to the issue discussed with the lawyers and assessed the condition in a more broad and comprehensive way. I accept that it is open to say the same about Dr Campbell, although he was given the applicant’s account of how he coped post-injury..

[58] However, that the respondent relies substantially, as it seems to me to be the case, upon the telephone conversation with Dr Boys on such an important matter seems to me to be totally inadequate. I cannot accept his opinion on that basis, particularly when one considers the opinion of another orthopaedic Specialist, Dr Campbell. The only way in which the opinion of Dr Boys could be properly resolved is by evidence at a trial.

[59] In the circumstances of this case, a notice of assessment there having been issued, and then the respondent having attempted to retract that assessment by reason of purported confusion over dates of the event and uncertainty about the time of the occurrence of the injury, expressed by a man who says that he had at that time difficulty with the English language (even allowing for the recollection of Dr Boys about that matter), was afraid that reporting an injury would have an adverse affect on his continuing employment and his apparent stoicism in doing the best he could to continue working albeit at a reduced rate for a short period after the consultation with Dr Ibrahim, makes it inappropriate to deal with any evidence on this application.

[60] The proper occasion for evidence about these matters is at a trial and the applicant is entitled to a trial given the issue of the notice of assessment by the respondent and the commencement of payments of compensation by the respondent in respect of the one injury that the applicant has consistently identified.

Conclusion

[61] The issues identified in the judgment have been dealt with in the course of the discussion above. The authorities cited support the findings that I have made. I find that there was one injury suffered by the applicant. Any debate about the date of the relevant event and about causation is a matter for trial. For the reasons referred to above, the application should be granted and the declarations made.

 

David Cormack – Brisbane Barrister & Mediator

 

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