- Unreported Judgment
SUPREME COURT OF QUEENSLAND
1 March 2007
20 October 2006
WORKERS COMPENSATION – MEDICAL EXAMINATION ss 266 and 267 of WorkCover Queensland Act 1996 – Application to determine whether Notice of Assessment has been given in accordance with Consent Order – applicant sustained injuries over a period of time – referral to various tribunals – whether Notices of Assessment cover all injuries
Mr M Glen for the applicant
Mr SC Williams QC for respondent
The Law Office for the applicant
Boulton Cleary & Kern for the respondent
- On 9 September 2003 the applicant commenced proceedings against the defendants, one or other of whom traded as Woolworths Supermarkets by whom she was employed. (They shall be collectively referred to as “the respondent”).
- The plaintiff’s claim is for damages for personal injuries sustained over time during the course of her employment with the respondents between 1997 and October 2003 when she ceased work. She had previously claimed and received statutory compensation and medical expenses prior to ceasing work. However, none of her injuries had been assessed. Her entitlement to seek damages is as a worker identified in s 253(1)(b) of the Act and is thus governed by ss 265-268 of the Act. The proceedings were commenced on an urgent basis pursuant to s 266 and without having complied with the pre-Court procedures prescribed in Chapter 5 of the WorkCover Act 1996 (“the Act”).
- On 20 December 2004 the parties filed a Consent Order whereby the plaintiff was, pursuant to s 305 of the Act, granted leave to commence proceedings in respect of injuries sustained over time between 1 July 2001 and 28 August 2002, notwithstanding non-compliance with the pre-Court procedures. That leave was conditional, inter alia, upon the plaintiff –
- filing an application for the extension of time referred to above; and
- delivering a s 280 Notice of Claim “within sixty (60) days of the date of receiving the respondents’ decision in respect of the last unassessed injury alleged by the applicant against the respondents for the period between 1 February 1997 and 28 August 2002.
The action was stayed pending compliance with the pre-Court procedures required by the Act.
- By order of this Court dated 9 August 2005 the period of claim was extended under the Limitation of Actions Act 1994. Effectively this allowed the applicant to claim for an injury occurring over time from 1 July 1991 until the commencement of the action on 9 September 2003.
- This application raises the question whether the “respondents’ decision in respect of the last unassessed injury alleged by the applicant” has been received so as to give rise to the second of those conditions.
- The applicant contends that the respondent has not yet delivered that decision and identifies three alleged injuries which remain unassessed. She seeks an order pursuant to s 291 to direct the respondent to undertake the assessment. The respondent contends that its decision, Notice of Assessment dated 6 June 2005, dealt with the last of the injuries alleged by the applicant. If this is so, the plaintiff has not delivered a s 280 Notice within the required time and thus has not complied with the order. In the event that I find there has been non-compliance with the order the applicant seeks an extension of time within which to so comply.
The injuries alleged
- The plaintiff first detailed her injuries in a letter to the respondent dated 27 August 2003. That letter and the accompanying application requesting a Conditional Damages Certificate pursuant to s 265 of the Act, alleged that the plaintiff sustained the following injuries over time:-
- Injury to the left hand and/or wrist region;
- Carpal Tunnel Syndrome in the left hand and wrist region;
- Injury to the right hand and/or wrist region;
- Carpal Tunnel Syndrome to the right hand and/or wrist region;
- Alternatively, perineural fibrosis of the left wrist;
- Chronic regional pain syndrome type 1;
- Injury to the left shoulder region;
- Rotator cuff tendonitis and/or impingement of the left shoulder;
- Consequent psychiatric injury. 
- On 8 September 2003 the respondent issued two Conditional Damages Certificates for those alleged injuries pursuant to ss 262, 265 and 270 of the Act on the basis of there being an urgent need to bring proceedings for damages. The first related to an injury over time between 1 January 1996 and 31 January 1997 and the second for the period between 1 February 1997 to 28 August 2003. Each Certificate expressly provided that the respondent was not satisfied that:-
- the person was a worker when the injury was sustained; or
- the worker has sustained an injury within the terms of the Act; or
- the worker’s degree of permanent impairment has been assessed in the way mentioned for the injury under Chapter 3, Part 9 of the Act.
- This action was commenced on the day following the receipt of those Conditional Damages Certificates on 9 September 2003. As none of the alleged injuries had been assessed, the plaintiff then embarked upon the process of obtaining a Notice of Assessment pursuant to the Act.
- Between 1997 and early 2001 the applicant experienced symptoms of pain and tingling in her hands and wrists. On 16 August 2001 she underwent surgery for carpal tunnel release on both her wrists. The surgery completely relieved the symptoms in the right hand but not her left. She returned to work hoping the left hand/wrist symptoms would settle. They did not. On 23 August 2002 she underwent revision surgery on the carpal tunnel but this procedure did not remove the symptoms. She also had symptoms in her left shoulder and in May 2003 underwent an unsuccessful surgical procedure in respect of that condition. Between 26 June 2001 and 22 December 2003 the applicant was examined by a number of medical specialists, some of whose reports have been exhibited to the affidavit of Andrew Krumins sworn 17 December 2004. These detail the various opinions as to the nature of the injuries with differing diagnoses in respect of some to which later reference will be made.
- On 13 May 2004 the respondent wrote to the applicant advising that –
“The Tribunal will also be asked to … decide the following injuries under your application for a damages certificate due to conflicting medical opinion: injury to left hand/wrist, injury to right hand/wrist, perineural fibrosis of left wrist, CRPS1 and injury to left shoulder.”
- There were two separate referrals to the Orthopaedic Assessment Tribunal. Both referrals were dated 28 July 2004 but they required assessment in respect of different injuries. The first was in respect of “left limb injury, left shoulder tendonitis, left limb pain, left limb problem, post-left shoulder surgery.” The second reference sought assessment of –
“Bilateral carpal tunnel syndrome
1. Chronic regional pain syndrome type 1 (over a period of time from August 2002.
2. Alternatively perineural fibrosis of the left wrist (over a period of time from August 2001.”
- A further referral with respect to the “psychiatric injury,” also dated 28 July 2004, was made to the General Medical Assessment Tribunal – Psychiatric. The decision of the General Medical Assessment Tribunal found a psychiatric condition, namely an Adjustment Disorder with Mixed Anxiety and Depressed Mood which required treatment and further consideration before final assessment. That was done at a later time with the result that item “(i) Consequent psychiatric injury” was duly assessed and is thus uncontroversial in this application..
- The two decisions of the Orthopaedic Assessment Tribunal are dated respectively 21 October 2004 and 18 November 2004. The first in time dealt with the referral for “left limb injury, left shoulder tendonitis, left limb pain, left limb problem, post shoulder surgery” and the assessment was that there “did not exist an incapacity for work and further that the worker has not sustained an injury resulting in permanent impairment.” The second assessment relating to the bilateral carpal tunnel syndrome and the chronic regional pain syndrome and perineural fibrosis resulted in the finding that “the matters alleged for the purpose of seeking damages do not constitute an injury to the worker”.
- In respect of the three decisions from the respective tribunals, the respondent sent to the applicant’s solicitors two Notices of Assessment. The first dated 19 November 2004 identified the injury description as “Sub-achromial Rotator Cuff Impingement in the left shoulder with surgery” that assessment was unmistakably relating to alleged injury (h) referred to in paragraph 7 hereof. The second Notice of the Assessment was dated 6 June 2005 and describes the injuries dealt with as –
“Left Carpal Tunnel Syndrome
Right Carpal Tunnel Syndrome
Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.”
These three injuries clearly relate to the alleged injuries list in subparagraphs (b), (c) and, as previously mentioned, (i). Of the other alleged injuries items (e), (f) and (h) were assessed. At no stage did either of the Notices of Assessment or the Decisions make specific reference to the three alleged injuries:-
- Injury to left hand and/or wrist region;
- Injury to the right hand and/or wrist region;
- Injury to left shoulder region
- Solicitors for the plaintiff reviewed the assessments and came to the view that those three injuries remained unassessed. By letter dated 7 December 2005 they wrote to the respondent’s solicitors and asserted that those injuries had not been assessed. The formal response to this letter is dated 2 June 2006. After stating the reason for the delay in responding, the respondent there contended that the Notice of Assessment issued on 6 June 2005 covered the last of the previously unassessed injuries.
- It is clear enough that the three injuries identified in sub-paragraphs (a), (c) and (g) were not identified in the terms in which they were alleged in any of the Notices of Assessment. The respondent contends that this is of no consequence because a proper analysis of the decision of the Orthopaedic Assessment Tribunal, together with the reading of the various medical reports tendered, indicate that there was no separate injury falling within these descriptions. The only injuries in fact were those identified in paragraphs (b), (d), (e), (f), (h) and (i) and each of those is covered by a Notice of Assessment.
- In reliance of this submission, counsel for the respondent referred to Bell v Australian Meat Holdings Pty Limited where the Court of Appeal dealt with the question whether a description of an injury by a claimant which differed from the description of the injury in the Notice of Assessment resulted in the claimant not having delivered a complying Notice of Claim for Damages. The claimant described her injury as “multi-level disk injuries in lower back” whilst the Notice of Assessment referred only to “mild aggravation of pre-existing degenerative disease in the lumbar-sacral spine”. Davies JA (with whom Jerrard JA and Wilson J agreed) said (at p 5):-
“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.”
- Counsel for the respondent referred to the definition of injury set out in s 34 of the Act and argued that the medical reports tendered to the Tribunal by the applicant identified only two injuries which were work related – the bilateral carpal tunnel syndromes. Each of them was treated by surgery but with different outcomes. He argued that what was being put forward as an injury was rather a complaint about symptoms. He contended that the applicant has never identified a discrete “injury” to left hand/wrist or right hand/wrist. The competing diagnoses by Drs Boyce, Mansfield and Graham to explain the symptoms did not identify a separate injury.
- My reading the report of Dr Boyce dated 31 January 2003 rather suggest to the contrary. He said:-
“I formed the opinion that the lady still had features of damages to the left median nerve. It is not correct to call this carpal tunnel syndrome in so much that it is now intra neural scarring of the left nerve.”
- But this submission in my view does not go to the issue. The situation in Bell was different. There, the claimant had the benefit of a Notice of Assessment already delivered when formulating the terms of the Notice of Claim. The task was simply a matter of identifying the actual injury to which the assessment related because there was no right to claim in respect of an injury which had not been assessed.
- Here, the applicant has alleged injuries in respect of which assessment was to be sought. The referral to the specialist tribunals ought to have been made in the terms by which the applicant sought the assessment. The respondent by its letter dated 13 May 2004 said it would do so. If there was a suggestion of an overlap or a doubling up in the description of the injury it would nonetheless remain a matter for the specialist tribunal to make the assessment. The tribunal could not make an assessment of an injury which was not referred to it. The process for dealing with overlapping descriptions of injury was indeed followed with respect to the claim for “chronic regional pain syndrome (paragraph (d)); or alternatively perineural fibrosis of the left wrist”. Those stated injuries were dealt with specifically by the relevant tribunal and the decision was relied upon for the Notice of Assessment dated 6 June 2005.
- However the referrals to the Orthopaedic Assessment Tribunal were couched in significantly different terms to those used by the applicant identifying her claim. The referral was with respect to “left limb injury…left limb pain, left limb problem…” This was a rather curious generalisation of the injuries alleged and completely omitted reference to the right hand/wrist. The decision of the Orthopaedic Assessment Tribunal did not undertake any discussion which discriminated between the injuries alleged and those injuries so described. The focus was on the condition of the applicant’s left shoulder, although noting that there was a sensory disturbance over the left forearm and left palm. The Attachment to the tribunal’s decision referred only to “left upper limb” with the finding that there was no incapacity and no injury. The respondent’s Notice of Assessment which followed dated 19 November 2004 made no reference to any injury to the left hand and/or wrist region or to any injury to the left shoulder region other than the specific diagnosis of rotator cuff tendonitis.
- An analysis of the medical reports might lead one to conclude that the left shoulder injury and the rotator cuff tendonitis are in fact one and the same injury in the sense described in Bell. But that is not the issue here. The applicant in this instance is waiting to be advised when all of the alleged injuries have been assessed. In a purely factual sense, all the injuries alleged may well have been assessed. If so, then it would seem that the Notice of Assessment if it was going to both descriptors of the injury could have been notified to the applicant in the same terms in which the injuries were alleged. The fact that this was not done left the applicant in a position of having to assume, without actually knowing, that all of the alleged injuries had been assessed even though they were not the subject of any referral to a tribunal.
- Since the notification of the assessment was to be a trigger for the running of time for the delivery of the s 280 Notice, some certainty in the assessment outcome was called for. It is not for the respondent, having determined for itself the scope of the injuries to be assessed, to expect that the claimant will assume that an assessment of all alleged injuries has occurred. In this case the position of the applicant is further compromised by the fact that the respondent said it would refer to the relevant tribunal the alleged injuries in terms claimed and set out in the Conditional Damages Certificate, but then without notice couched the reference in different terms. What was required is for the respondent to give notice of its assessment of the injury alleged in direct and unequivocal terms.
- I am satisfied that the respondent has not provided notification of its decision as contemplated by paragraph 3 of the Consent Order and thus the time within which s 280 Notice of Claim is to be delivered has not commenced to run. The appropriate course, it seems to me, is to direct the respondent to provide a Notice of Assessment directly referring to the injuries which the claimant requires to be assessed in order for her to pursue her claim.
- Having so found it is unnecessary for me to consider the alternate questions of whether the Court has power to vary the terms of the Consent Order made on 20 December 2004 and if so, whether in the exercise of discretion that ought to be done. But in deference to the detailed arguments raised by Counsel for the parties, I should comment briefly on the issues.
- Firstly, it seems to me undoubted that the Court does have the power pursuant to r 7(1) of the Uniform Civil Procedure Rules 1999 to extend time for compliance with an earlier order if it is appropriate to do so. That power of course does not allow extensions of time which would defeat statutorily imposed limitations. Counsel for the respondent does not argue against that position. See Westpac Banking Corporation v Commissioner for State Revenue; Campbell v Rapisarda.
- Counsel for the respondent contends that if indeed the applicant has failed to comply with the Consent Order then there is a break in time because the Conditional Damages Certificate protected the claim only for the period 1 February 1997 to 30 June 2001. As a consequence there is a period between 1 July 2001 and the earliest reach of the s 305 Order (20 December 2001) for which there can be no extension.
- In the circumstances I do not propose to deal with the arguments on this specific point which seems to me to be more appropriately disposed of at trial.
- As to whether in the circumstances the Court’s discretion should be exercised to extend the time within which a s 280 Notice may be delivered the applicant contends that the confusion engendered in the mind of her solicitor was caused by the change in the description of the injuries assessed without notice; that the belief that injuries remained unassessed was genuinely held and this explains the delay. As to questions of prejudice the applicant asserts that the respondent is fully appraised of the circumstances of the incident by reason of the earlier statutory claims; that it has in fact carried out investigations for this and other claims; and that it is fully appraised of the applicant’s medical history and present status.
- The respondent argues that it is prejudiced by the cumulative delay when considering the workplace conditions for a period which commenced 10 years ago. It contends that a fair trial is not possible on the negligence issue which could turn upon fine points of evidence going to such matters as industry best practice at the time of the incident, the equipment in use then and the fading memories of possible witnesses.
- For the reasons set out above I find that the substantial delay was caused by the respondent’s failure to advise in a clear way its position that all alleged injuries had been assessed. Further, I am not convinced that a fair trial is not possible. Both parties have obtained expert reports on the system of work. The fact the claim has been known for a long time there has been ample opportunity to obtain witness statements. The respondent has not identified any witnesses who are no longer available to give evidence but have only hinted at the prospect that this might be so. Having regard to the relative prejudice to the applicant in being denied the opportunity to pursue her claim and the prejudice occasioned by the respondent I would have exercised my discretion in favour of extending the time for the applicant’s compliance with paragraph 3 of the Consent Order for a period of 28 days from the date of the order.
- I make the following orders:-
- That the respondent deliver pursuant to s 203 of the Act, a Notice of Assessment of the injuries alleged in the Conditional Damages Certificate dated 8 September 2003 which have not yet been referred to in a Notice of Assessment.
- I allow the parties 14 days in which to make submissions on the issue of costs.
 See  QSC 249
 See Statement of Claim para 14 ex “B” to affidavit of Andrew Krumins sworn 15 December 2004
 Ex “AK21” to affidavit of Andrew Krumins sworn 17 December 2004
 Exs “AK7-18”
 Ex “AK10” to affidavit of Andrew Krumins sworn 31 August 2006
 Ex “AK11” to affidavit of Andrew Krumins sworn 31 August 2006
 Ex “AK14” to affidavit of Andrew Krumins (supra)
 Ex “AK12” to affidavit of Andrew Krumins (supra)
 Ex “AK16” to affidavit of Andrew Krumins (supra)
 Ex “AK13” to affidavit of Andrew Krumins (supra)
 Ex “AK17” to affidavit of Andrew Krumins (supra)
  QCA 209
 Ex “AK13” to affidavit of Andrew Krumins sworn 17 December 2004
 Ex “AK14” to affidavit of Andrew Krumins sworn 31 August 2006
 Ex “AK17” to affidavit of Andrew Krumins sworn 31 August 2006
 Ex “AK12” to affidavit of Andrew Krumins (supra)
 Ex “AK13” to affidavit of Andrew Krumins (supra)
  QCA 327 per McPherson JA at para 
 Townsville S 593/2003 per Cullinane J
- Published Case Name:
Maconachie v Woolworths Limited & Anor
- Shortened Case Name:
Maconachie v Woolworths Limited
 QSC 51
01 Mar 2007
No Litigation History