WCRA: Oct 2013 threshold – OPT injury & when the injury arose – first consultation?

Guest v Boyne Smelters Ltd & Anor [2017] QSC 250

McMeekin J

The applicant sustained elbow injuries over a period of time from March 2013 to the start of October 2013 while working for the first respondent. The applicant was assessed with a 2% impairment for her injury under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the “WCRA“). In issue was whether the injury was sustained prior to 15 October 2013 and was not required to meet an impairment threshold of more than 5% threshold pursuant to s 237 of the WCRA.

The respondents claimed that the applicant did not meet the impairment threshold under the WCRA. The applicant submitted that her injury was not caught by the October 2013 amendments.

WCRA s 235A – “consulted…  about the injury”

Section 235A of the WCRA relevantly provides:

(1) For the application of this chapter in relation to an injury sustained by a worker that happens over a period, the date on which the worker first consulted a relevant health practitioner about the injury is taken to be the date of the worker’s injury.

Relevantly, the applicant first attended upon her general practitioner on 19 September 2013 complaining of pains in her elbows. The applicant again attended on her doctor on 16 October 2013 complaining of elbow pains. As to whether the applicant consulted her doctor about the injury, McMeekin J stated:

[32] The respondents’ argument is that Dr Pfidze sees workers for reasons other than the provision of medical advice and treatment. While Dr Pfizde conducts a medical practise at Boyne Smelters Limited (where Ms Guest attended on him), he is employed by Boyne Smelters Limited as an occupational physician and has other duties. The medical practise involves only part of his time. It is said that he saw Ms Guest on 19 September 2013 in a capacity other than as a treating doctor. It was said that her attendance that day where there was no examination and only limited notes were made can be compared to her attendance on the 15 October where a thorough examination took place and extensive notes were made (in the same record as previously) of findings, possible causes and suggested treatment modalities.

[38] … One would expect that the legislature fixed on a date that was assumed to be relatively easily ascertainable and one where the worker could be expected to at least be aware that they had an injury, given the need to tell a doctor about it. I observe that so far as the involvement of the injured worker in the process is concerned, practically speaking, he or she can do little more than report the symptoms and ask what he or she should do.

[39] … the statement to a medical practitioner, when being seen at a medical practice, in his capacity as a medical practitioner, of symptoms then being suffered with the evident purpose of determining what next should be done would seem to me to involve all that is necessary to satisfy the concept of “consult” as used in the legislation.

His Honour stated that there was no evidence that the applicant saw the practitioner in any capacity other than as a medical practitioner and noted further noted that the practitioner’s notes were recorded under the heading “Medical Progress Notes”. McMeekin J continued:

[42] What seems to have complicated the picture is that Ms Guest had had a long standing problem with a carpal tunnel. She had complained for some time of symptoms of pain in her wrist and forearms. When she saw the doctor on 19 September these symptoms were mentioned. It seems likely that both she and the practitioner were under the impression that her complaints about her elbows were related to her earlier complaints. Because of that the discussion turned to a re-opening of her earlier workers’ compensation claim so that she could obtain assistance with the cost of remedial surgery. As a result the doctor made no examination of her and offered her no treatment.

[43] It is evident from his oral evidence that Dr Pfidze was conscious that he wears several different hats at the employer’s workplace and was attempting to be careful in the discharge of his duties not to confuse his various roles. At some point the doctor decided that he had taken his medical practitioner’s hat off and put on some other hat. All this seems to have happened without Ms Guest having any appreciation of what was going through the doctor’s mind. And it occurred because of a view taken as to the nature of the condition being reported – that it was a flare up of the previous carpal tunnel problem, a problem the subject of an earlier workers’ compensation claim.

[44] It is entirely irrelevant what view the practitioner might have as to what the proper characterisation of the meeting might be. It is the objective assessment of what occurred that is relevant. And a misunderstanding about the nature of the condition is of no consequence. The respondents expressly disclaim any submission to the effect that there is some requirement that the practitioner accurately diagnose the injury for there to be a consultation about “the injury”. They were right to do so. The legislation does not require that the medical practitioner consulted accurately diagnoses the problem, or that the patient understands the nature of the injury sustained.[7] Nor is it relevant that because of the possible misdiagnosis the practitioner thought that it was a matter for Ms Guest to re-open her earlier claim and so not a matter for him to treat the condition.

[45] In my view, in every practical sense Ms Guest consulted a medical practitioner about her injury on 19 September 2013.

Accordingly, the applicant’s date of injury was accepted as 19 September 2013, avoiding the need for the applicant to meet the impairment threshold.

David Cormack – Brisbane Barrister & Mediator

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