WCRA: Newman Act amendments – where one injury is not more than 5% DPI

Trumino v Coles Group Limited [2017] QSC 211

Henry J

The application pursuant to s 10 of the Civil Proceedings Act 2011 (Qld) sought a declaration that the applicant was entitled to an action for common law damages to claim damages for psychiatric injuries flowing from physical injuries sustained in the course of his employment, where the degree of permanent impairment (DPI) was not more than 5%. At the time of the injury, amendments to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) required the injury to be assessed as having more than 5% DPI to access common law damages.

The applicant was employed by the respondent as a filler at Coles Supermarkets. In May 2014, the applicant allegedly sustained injuries in a slip and fall accident on frozen water. The applicant sustained injuries to his lower back and was subsequently diagnosed with L5/S1 disc prolapse for which he underwent surgery in August 2014.

The applicant subsequently developed urinary and erectile dysfunction.

The applicant’s lower back injury was assessed at 16% degree of permanent impairment while his bladder and erectile dysfunction assessed at 15% and 5% percent respectively In August 2016 the applicant attended upon his psychiatrist who accepted that the applicant’s adjustment disorder remained a primary work-related diagnosis. On 10 November 2016, the medical assessment tribunal convened to assess the applicant’s psychiatric condition. Of this, Henry J stated:

[9] On 30 November 2016, the respondent issued two notices of assessment. One, in respect of the applicant’s physical injuries, identified 35 per cent whole person impairment, specifically, L5/S1 disc prolapse at 16 per cent DPI, urinary dysfunction at 15 per cent DPI, erectile dysfunction at five per cent DPI and proximal fracture of the fifth metacarpal of the left hand at zero per cent DPI. The other notice was in respect of the psychiatric condition and it identified the assessed injuries and/or conditions as an adjustment disorder with depressed mood in remission with a DPI of one per cent.

[12] In the present case, the applicant received the two notices of assessment. One, on form 185.2013.04, as I have mentioned related to his assessment for physical injuries and it gave notice “the degree of permanent impairment (DPI) for your physical injury/injuries is: 35 per cent.” The other, related to his “psychiatric/psychological injury”, gave notice “the degree of impairment (DPI) for your psychiatric/psychological injury is: one per cent.”

Pursuant to s 237(1) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), as it applied at the time of the injury, a worker is entitled, inter alia, to seek damages for an injury if the worker has received a notice of assessment from the insurer for the injury and the DPI for the assessed injury is more than five per cent.

Despite assessed physical injuries or more than 5% DPI, the respondent contended that the applicant was not entitled to pursue his claim for damages for the psychiatric injury:

[15] The respondent contends that because the applicant had received two notices and only one of them involved a DPI assessment more than five per cent, he can only pursue a damages claim in respect of the injuries in that notice. That is, even though he has crossed s 237’s threshold, he is said to be precluded from now pursuing a damages claim including a component for the psychiatric/psychological injury because the DPI assessment was less than five per cent for that particular injury.

Determining whether the respondent’s construction of s 237 was correct, his Honour stated:

[16] The argument assumes the words of s 237 impose a future constraint on the injuries for which a worker who crosses s 237’s threshold can claim but that is not what s 237 says. It contains no such constraint.

[17] The words of s 237 are concerned to limit which persons are entitled to seek damages. Section 237(1) commences “the following are the only persons entitled to seek damages for an injury sustained by a worker…”. The balance of s 237(1) refers to aspects or levels of injury purely as a device to identify the persons in question, not to limit the composition of their future claim.

[18] Section 237’s emphasis on identifying the persons who can claim for damages is equally as obvious in s 237(5) which provides:

 “To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.”

[19] That subsection was literally enacted to “remove any doubt” that s 237 seeks to confine the persons who can pass its threshold by abolishing the right of a person “not mentioned” in s 237(1) to seek damages for an injury sustained. The applicant clearly is a person mentioned in s 237(1) for, even without reliance on the addition of his assessment for psychiatric/psychological injury to his assessment for physical injury, his assessment for physical injury is well above the five per cent threshold. Once past the s 237 threshold, the applicant joins the ranks of the persons s 237 allows to seek damages for injuries sustained by a worker. Having allowed him to pass, s 237’s work is done. It does not control the future conduct or limits of the applicant’s claim.

[22] I note for completeness, and in deference to the time spent on it in argument, that s 185, the provision under which the notice of assessment referred to in s 237 is given, does not contemplate the giving of separate notices. That the approved notice of assessment form referred to in s 185(1) has apparently being designed as two separate forms, one for psychological/psychiatric injury, one for physical injury, is doubtless informed by the pre-litigation administrative processes to which I have referred. But that cannot change the meaning of s 185 and more particularly, for the reasons I have explained, has no present bearing on s 237.

As to the declaration, his Honour stated:

[23] A declaration will not ordinarily be made unless there is utility in it. That the resolution of this controversy can wait for trial is no answer to this application because there actually remains a settlement conference to occur pursuant to the Act’s requirements. It cannot be conducted in a properly informed way without knowing the answer to the issue that has arisen between the parties. I accept, for that reason, that there is utility in making a declaration.

In making orders, Henry J declared that s 237 does not prevent the applicant in seeking damages for psychiatric or psychological injury or for more than one injury.

David Cormack – Brisbane Barrister & Mediator

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