WCRA: assessment of injury & entitlement to damages

Muckermann v Skilled Group Limited & Anor [2013] QSC 51

Issue: whether the injury (psych-major (sic) depressive disorder) assessed under s.179 of the Workers’ Compensation and Rehabilitation Act 2003 was the assessed injury as described in the Notice of Claim for Damages.

A declaration by the plaintiff was sought because the insurer submitted it was not an assessed injury for which the plaintiff had an entitlement to seek damages:

North J

[14] At the heart of the dispute joined on the pleadings but not particularised or stated with precision in the defence of the first defendant is the circumstance that the plaintiff’s injury has been variously described. WorkCover when it accepted the injury described it as “major agitated depression” and referred that to the tribunal. The tribunal described that as a “major depressive disorder in partial remission”. In the notice of assessment issued by WorkCover it was described as “secondary major depressive disorder”. The notice of claim[29] described the injury to the “psyche” as “major depressive disorder”.

[16] In his written outline of submissions counsel for the first defendant identified the “issue” as that pleaded in the defence of the first defendant.[32] He then elaborated:

“2. The issue arises through a combination of section 237(1)(a)(i), section 258 and section 295 of the Workers Compensation and Rehabilitation Act 2003, as it stood from June 2007 to May 2008 (“WCRA”)

3. The Plaintiff’s entitlement to seek damages is tied to “the injury” to which the notice of assessment relates.”

(Footnotes omitted)

[18] At this point it might be noted that the only respect in which it was asserted the plaintiff had not complied with s 295 was in respect of s 295(a) which directs attention to the entitlement conditions of s 237. In this particular the issue was whether the plaintiff had received “a notice of assessment from [WorkCover] for the injury”.[34]

[19] The object of the first defendant’s plea was the contention that if the plaintiff did not have a notice of assessment for the psyche injury pleaded by the plaintiff then the first defendant had a defence for that injury and the plaintiff could not seek or recover damages for it.

[20] In his outline counsel developed his submission:

“5. Paragraph 8 of the Statement of Claim of the Plaintiff pleads that during the period of January 2008 to May 2008, whilst on light duties, the Plaintiff was “subjected to consistent and persistent bullying and harassing behaviour”. No particular of the negligence or breach of contract squarely addresses this allegation in paragraph 10 of the Statement of Claim. It was particularised in response to a Request for Further and Better particulars dated 3 August 2011. It is also particularised in a letter of 1 September 2011 from the Plaintiff’s former solicitors to the First Defendant’s solicitors.

6. The Notice of Claim for damages describes a “psyche” injury for which a Notice of Assessment had been received of a “major depressive disorder” with a permanent impairment of 5%. In answer to paragraph 52, mention is made of “bullying behaviour”. The “bullying behaviour” is described and defined in answer to question 38.

7. Thus it is clear that the Plaintiff seeks to allege that “injury” resulting from the “bullying behaviour” described in the NOC and now in the pleadings, is that which has been the subject of assessment in the Notice of Assessment. The relevant Notice of Assessment is that of the Medical Assessment Tribunal (“MAT”) dated 21 October 2009. The date of the range of injury is 5 December 2007 to 7 December 2007 and the injury is described as “secondary major depressive disorder” with a permanent impairment attributable to the injury of 5% which also comprises the WRI for the psychiatric

8. To understand what was assessed, the reference to the MAT, and the material which the MAT had before it, which generated the Notice of Assessment, has to be considered. This is exhibited to the Affidavit of Thomas. Also the reasons given by the MAT. This is also exhibited to the Affidavit of Thomas. At page 2 exhibit “BRT10”, the information which “has been taken into consideration during the decision making process” by the MAT is listed.

9. Importantly the initial assessment reviewed by Doctor Beryl Buckley dated 3 April 2008 is not listed as one of those documents and it was not before the MAT.

10. When the documents before the MAT, upon which it made its decision and from which the NOA was issued, are considered, there is no, or no sufficient, reference to what is now pleaded as the “bullying behaviour” or have been listed in the NOC as the “bullying behaviour” to describe the “injury”.

11. It is submitted that the conclusion can be safely drawn that the “injury” now sought to be pursued is a different injury from that which was assessed.”

(Footnotes omitted)

[21] Two observations might be made. The attribution of the term “secondary” major depressive disorder to the medical assessment tribunal by counsel for the first defendant is not accurate. The addition of the word “secondary” was made by an unknown WorkCover officer in circumstances that have not been explained.[35] The tribunal assessed a “major depressive disorder in partial remission”. The notice of assessment was prepared by WorkCover, under s 185 of the WCRA which obliges the insurer, not the tribunal, to prepare and give the notice.[36]

[22] In this context it is worth recalling the observations of Holmes J in Watters v WorkCover Queensland[37]. Her Honour said:

“There is a good deal of authority to the effect that the injuries which may be the subject of a notice of claim are limited to those which have been assessed…”

and further in this context:[38]

“it is the medical practitioner’s assessment which is relevant under s 197, not the view of a WorkCover officer who formally gives the result of an assessment.”

[23] The second matter is that while much of the medical opinion evidence before the tribunal may have suggested that the plaintiff’s psyche injury may have been attributed by doctors to the pain and suffering of the unresolved physical injury (hence “secondary”) the medical evidence did record indications that the plaintiff may have complained that conduct at work contributed to his unhappiness.[39]

[24] The assumption by the unknown WorkCover officer who authored the notice of assessment that the plaintiff’s psyche illness was “secondary” to the pain and suffering and the decision to author the notice in terms differing from the assessment recorded by the medical assessment tribunal is the first cause of the confusion that has resulted in the application before me. Further the assumption in the submissions made on behalf of the first defendant that the medical assessment tribunal must have concluded or acted upon the assumption that the plaintiff’s psyche injury was “secondary” to the pain and suffering from the physical injury and not attributable or partially attributable to some other cause goes too far. I have already noted that some of the medical evidence before the tribunal suggests other factors may have been causative. The tribunal had power to examine and question the plaintiff.[40] It was not necessarily limited to the opinions or information of a hearsay nature contained in the reports of others. While the tribunal’s statement preliminary to its “decision” makes reference to “work-related aspects”[41] the reference to the tribunal only required of it an assessment of the extent of the incapacity and the nature and degree of permanent impairment.[42] The question of whether an injury had been sustained would have required a different referral[43]. Strictly speaking the question of causation, what matters or “events” contributed to the suffering of the psychiatric illness, or even if the asserted illness was work related was not referred to the tribunal and as it transpired the tribunal’s “decision” was limited to the matters referred to it.[44]

[25] The object of the WCRA of maintaining a balance between providing fair and appropriate benefits to injured workers and ensuring reasonable cost levels for employers has frequently been noted by the courts in this State.[45] So has the object of providing protection to employers’ interests in relation to claims for damages.[46] The object of ensuring that injured workers are treated fairly by insurers should not be forgotten.[47]

[26] When one is confronted with the complications that Chapter 5 may give rise to it is necessary to keep firmly in mind some basic propositions. The WCRA imposes a legal liability upon an employer for compensation for injury sustained by an employed worker.[48] But “compensation” is a defined term[49] being the benefits payable under Chapters 3 and 4. Section 46(2) WCRA makes it clear that the WCRA does not impose any legal liability for damages though Chapter 5 “regulates” access to damages. The legal liability of an employer for damages (if any) for which an employer is obliged to insure[50] under a policy to the extent of “accident insurance”[51] is a legal liability that may arise “independently of the Act”,[52] for example breach of an implied term of the contract of employment, a breach of the duty of care of an employer owes an employee or a breach of statutory duty (if any) relating to safety. Consequently while the provisions of Chapter 5 WCRA may be “substantive”[53] their purpose is to “regulate” access consistent with the objects of the Act.[54] Those objects include those of Part 5 of Chapter 5 which is to “facilitate the just and expeditious resolution of the real issues in a claim for damages”.[55] The liability for damages is established at trial. It is trite to say[56] that a judgment for damages for personal injury in this context requires proof of a breach of the duty of care,[57] causation of damage (injury) as a consequence of that breach and an assessment of the nature and extent of the damage so far as that can be done in monetary terms. This can be contrasted with the liability for compensation imposed by the WCRA which is imposed when a worker sustains an injury.[58] Consequently if a worker has sustained a “personal injury arising out of or in the course of employment”[59] then providing the employment is a “significant contributing factor”[60] compensation benefits will be payable. Plainly the issue of injury as defined (which is at the forefront of any application for compensation and its assessment, whether by a doctor[61] or at a tribunal,[62]) is relevant to the determination of the entitlement to compensation benefits. The assessment of permanent impairment that s 179 concerns establishes whether a worker is entitled to a payment of a lump sum as compensation for permanent impairment.[63] The notice of assessment that s 185 obliges the insurer to give is a document that evidences the degree of permanent impairment in accordance with the WCRA and the WCRR and identifies the lump sum payment (if any) the worker is entitled to. But the notice of assessment has a second function as a part of the regulation of access to damages, (mention has been made of s 237(1)(a)(i), s 237(1)(d) and s 258(1)(b)). It is noteworthy that these sections refer to assessment of the injury, the term defined by s 32, but in this case because WorkCover had satisfied itself that the plaintiff had sustained an injury (see s 258(1)(a)(ii)) the issue for the purpose of the “gateway” that Chapter 5 “regulates” was the assessment of permanent impairment. Thus far these general observations have focussed on an “injury”. The concept of “event” defined by s 31 finds its explicit work in the context of this matter not as a part of any assessment of injury or impairment but in the context of the plaintiff seeking damages.[64] Section 111 WCRR expressly refers to the “event”. It requires that the notice of claim for damages which an injured worker must prepare and sign as part of the pre court procedures mandated by Part 5 of Chapter 5[65] contain an elaboration of the facts and matters relating to the “event”.[66] It is not surprising that the issue of “event” arises in the context of the claim for damages. The identification and consideration of an “event” is important in the consideration of matters such as whether a breach of the duty of care has occurred and also of causation of loss and damage. In other words, in the context of the WCRA the issue of “event” has significance in the context of the pre-court procedures and the requirement of Parts 5 and 6 of Chapter 5 of the Act that the parties attempt to settle claims for damages. I have not overlooked that an application for compensation requires of an injured worker information demonstrating that the injury arose out of or in the course of employment and that in the consideration of a claim for damages the nature and extent of personal injury will be relevant. So that while for both “compensation” claims and “damages” claims issues concerning both injury and event may have to be considered in general terms injury is the focus of a compensation claim and event has a much greater significance in the damages claim than it does in a compensation claim.

[27] The first occasion that the plaintiff was required by WorkCover to give it any detail of the “event” that precipitated his psyche “injury” was in the notice of claim. The plaintiff was required in that notice to give full particulars of the “event” including the date, time and place of the “event” and a description of the facts of the circumstances surrounding the “event”.[67] The plaintiff’s notice was deemed compliant by WorkCover. The consequence is that by the time WorkCover (and the employer should it have concerned itself) attended the compulsory conference to attempt to settle the claim for damages[68] the psyche injury had been assessed by the tribunal and a notice of assessment had issued. Further the plaintiff had by his notice of claim fully detailed how he asserted his psyche injury was caused and WorkCover (and the employer) had an opportunity to investigate the plaintiff’s allegations.[69] The power to refer the question of the plaintiff’s “injury” to a tribunal[70] should not be forgotten and it might also be noted that WorkCover had power to request the plaintiff to submit to a medical examination before the conference.[71] When the foregoing[72] is considered in light of the fact that the case pleaded by the plaintiff in his statement of claim is consistent with that detailed in the notice of claim the position adopted by the first defendant is very unattractive.

North J distinguished Sayers v Hanson t/a Allguard Security Services[73] and referred to Andersen v Aged Care Employers Self Insurance[77] noting the distinction between “injury” and “event” and the relevance of the requirement to assess the injury. His Honour previously referred to the seminal decision of Bell v Australia Meat Holdings Pty Ltd[30]

[15]…Davies JA said of a similar situation that arose under the materially indistinguishable predecessor of the WCRA:[31]

“The learned primary judge in making the declaration, answered the question to which I have just referred, by concluding that the injury the subject of the notice of

claim was a quite different injury from that referred to in the notice of assessment. However, his Honour concluded also, contrary to the appellant’s contentions, that the notice of claim complied with s 280 notwithstanding that.

Perhaps somewhat surprisingly his Honour reached his conclusion that the injuries specified in each of the notices were different injuries notwithstanding that the respondent persistently asserted, and still asserts, that the injury the subject of his notice of claim and the injury the subject of the notice of assessment is the same injury. These assertions were made in the respondent’s solicitor’s letters of 3 September 2002, 23 September 2002 and 17 October 2002 and the respondent seeks to advance this contention in his notice of contention in respect of which he sought and has been granted, an extension of time.

The term “injury” is defined in s 34 of the Act as a “personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury”. It is plain that in that subsection “personal injury” is used in its ordinary meaning of damage to the body.

In s 34(2) there is an immaterial exception to the requirement in that definition that the employment be a significant contributing factor to the injury. And then in s 34(3) injury is said to include, amongst other things, an aggravation of a personal injury or of a disease.

Notwithstanding his Honour’s conclusion to the contrary I do not think that there is any reason to reject the respondent’s consistent contention that the injury described by him in his notice of claim is the same injury as that which had been assessed and notified in the notice of assessment. It is, in each case, the personal injury which the respondent suffered to his lower spine at the date and time to which I have referred.

It is not suggested by the appellant that the respondent suffered more than one injury and, of course, the respondent has contended to the contrary. Moreover the descriptions “aggravation of pre-existing degenerative disease of the lumbosacral spine” in the notice of assessment and “multi level disk injuries” in the “lower back” in the notice of claim are not by any means necessarily inconsistent. They both describe injuries to the lower spine which, possibly on both views, aggravated a pre-existing degenerative condition.

The descriptions of injury in the notices differ in two respects. The first is that the description in the notice of assessment is more specific than that in the notice of claim. However, the very generality of the second description should not prevent a conclusion, accepted and even advanced by its author, that it is of the same injury as that described in the earlier notice of assessment.

The second difference between the two descriptions is in their assessment of the seriousness of the injury and of its consequences including its permanent consequences. It seems unlikely that the respondent would accept that it caused only mild aggravation of pre-existing degenerative disease and it is plain that he asserts, contrary to the appellant’s assessment, that it has caused a permanent disability of 10 per cent. He may also contend that to describe it merely as an aggravation of a pre-existing degenerative disease is to understate its seriousness.

However these differences cannot, in my opinion, justify the conclusion that the respective descriptions are of different injuries. Rather they are descriptions of the same injury in different ways; and it is unsurprising, I think, that the respondent describes it in an apparently more serious way than the appellant.

Once it is seen, as I think it is, that the injury referred to in the two notices are the same injury, the question in issue between the parties in my opinion resolves. That is because, if the injuries are the same, the notice of claim is, as his Honour held, a notice of claim in compliance with s 280 of the Act. The only basis upon which the Appellant has contended that the notice of claim did not comply with s 280 depended on the conclusion that the injury to which it referred was an injury different from that which has been assessed.”

(Emphasis added)

North J concluded:

[32] The circumstances in this case are unusual. The plaintiff did not make an application for compensation in respect of his psyche injury. WorkCover accepted the injury without asking of the plaintiff for any information about the cause of the injury. It deemed a notice of claim compliant which described the “event”. The injury assessed is plainly the same injury referred to in the notice of assessment, the notice of claim and the statement of claim. WorkCover and the plaintiff may have been at cross purposes about the plaintiff’s attribution of the cause of his psyche injury but that was, on the view I take, of WorkCover’s making. Further in the context of litigation about a claim for damages for personal injury where the cause of and the nature or extent of the suffering of a psychiatric illness is an issue the ultimate findings by a trial judge will depend upon facts found about events and opinions accepted. Accounts sworn to by an ill plaintiff (as may have been variously told to others over a number of years), things observed or experienced by witnesses and the opinion of doctors all have to be evaluated. Depending upon particular circumstances a plaintiff’s illness may be in remission or may be acute at the time of trial, the symptoms may have waxed and waned over the years before trial and with that the ill plaintiff may have given varying accounts. The question of “event” as defined by WCRA in this context is usually more subtle and illusive than in the context of a physical injury. To set up as a defence against the plaintiff’s claim that the psychiatric injury was caused by alleged bullying and harassing behaviour the possibility that a notice of assessment (authored by an employee of WorkCover in the circumstances I have described) ambiguously suggests another cause finds no support within the WCRA. So to do in the unusual circumstances applying here offends against the objects of the Act.[80]

[33] If a declaration is made the first defendant is not deprived of any defence upon the merits. It may be that the plaintiff has made inconsistent contradictory statements attributing different causes to his psyche illness. To adopt the term of the WCRA he may have spoken inconsistently about “events”[81]. If so the defendant may have significant grounds to contest causation and perhaps breach at any trial. In the context of a future trial the first defendant did not make any submission that the plaintiff’s conduct prejudiced it at any trial upon the merits nor that it would suffer prejudice in its defence upon the merits if I were to make the declaration sought.

[34] In argument before me counsel for the defendant raised a preliminary issue as to whether it is appropriate to entertain an application for declaratory relief at an interlocutory hearing.[82] No submission was made in argument that there was a need for a trial in any material aspect of any facts. In the circumstances of the application I sought from and obtained an undertaking from the plaintiff through his counsel that the plaintiff would not seek to amend his statement of claim to allege any other cause for his psychiatric illness.[83] In the premises of the undertaking and in the absence of the suggestion that there was a need for the trial of any facts the application is not premature and has a utility, indeed if I had been persuaded by the submissions made on behalf of the first defendant then it might have been open to the first defendant to apply to strike out parts of the statement of claim consistent with the approach taken by the Chief Justice in Sayers v Hanson t/a Allguard Security Services.[84] In the circumstances I am persuaded that the plaintiff is entitled to the declaration he has sought.

Brisbane Barrister – David Cormack

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