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  4. Lentini v Redland Shire Council - [2000] QDC 217

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Lentini v Redland Shire Council[2000] QDC 217

Lentini v Redland Shire Council[2000] QDC 217

DISTRICT COURT OF QUEENSLAND

CITATION:

Lentini v Redland Shire Council & Ors [2000] QDC 217

PARTIES:

FRANCESCO LENTINI (Plaintiff)

v.

REDLAND SHIRE COUNCIL (First Defendant)

COVECORP CONSTRUCTIONS PTY LTD (Second Defendant)

EVEREADY CONCRETE CONTRACTORS PTY LTD (Third Defendant)

FILE NO:

D85 of 1999

DELIVERED ON:

 

DELIVERED AT:

BRISBANE

HEARING DATES:

 

JUDGE:

WOLFE C.J.D.C.

ORDER:

The defendants application is dismissed.

CATCHWORDS:

PROCEDURE – DEFENDANTS’ APPLICATION FOR SUMMARY JUDGMENT – injured employee did not obtain a certificate pursuant to s. 182D of the Workers’ Compensation Act 1990 prior to filing the plaint – whether certificate required – whether WorkCover had made an offer of lump sum compensation – whether WorkCover had waived obligation to obtain a certificate.

COUNSEL:

 

SOLICITORS:

 
  1. [1]
    The defendants applied pursuant to UCPR 293 for summary judgment against the plaintiff. The plaintiff had filed the plaint in this action prior to obtaining a certificate pursuant to s.182D of the Workers’ Compensation Act 1990 (as amended from 1 January 1996), which was repealed by the WorkCover Queensland Act 1996.  The plaintiff’s rights to maintain the action are governed by the provisions of the 1990 Act.  The defendant and WorkCover contend that the plaintiff’s action is barred by operation of s. 182D of the 1990 Act (“the Act”) which relevantly provides:

“182D(1) A worker who has not received an offer of lump sum compensation under s.132 may seek damages at law for an injury suffered after the commencement only if the board gives the worker a certificate under this section.”

  1. [2]
    The defendants applied for summary judgment relying on the s. 182D issue which they had raised in their pleadings or in the alternative an order pursuant to UCPR 482 for that issue to be determined as a separate issue together with a consequential order that the action be struck out. It may be noted that the defendants did not raise the s. 182D issue until after the limitation period had expired. Any question of waiver apart, it was common ground that if the plaintiff had not received a lump sum offer pursuant to s. 132 or a s. 182D certificate prior to the filing of the plaint, then the plaint must be struck out: see Mears v. Coles Myer Ltd. [1999] QSC 194.
  1. [3]
    By his cross application, the plaintiff sought orders pursuant to UCPR 162 striking out the paragraph of the third defendant’s defence which pleaded the s. 182D issue. At the hearing the plaintiff did not press his alternative application for an order extending the limitation period pursuant to s. 31(2) of the Limitations of Actions Act 1974, in light of Shepherdson J’s decision in Mears v. Coles Myer Ltd.
  1. [4]
    As the matter was argued there are two issues for determination. Firstly, whether the plaintiff received a lump sum offer pursuant to s. 132 of the Workers’ Compensation Act 1990, and if the plaintiff had not received this offer whether WorkCover had, in the circumstances, waived the plaintiff’s obligation to obtain a certificate pursuant to s. 182D of the 1990 Act.
  1. [5]
    The plaintiff was born on 3 February 1942. He sustained an injury on 17 June 1996 while working on the first defendant’s land. At that time he was employed by the third defendant. The second defendant had been retained by the first defendant to carry out building work upon its land and the second defendant had retained the third defendant as subcontractor to carry out concreting work on that land. The plaintiff is alleged to have sustained an injury when he slipped on a ramp at the site. Consequently, by operation of s. 47 of the 1990 Act the plaintiff was deemed to be a “worker” employed by the first and second defendants for the purpose of the Act. On 19 June 1996 the plaintiff applied for workers’ compensation. WorkCover paid periodic compensation and medical expenses to the plaintiff between about July 1996 to approximately September 1998.
  1. [6]
    A worker who sustains permanent impairment because of injury is entitled to lump sum compensation (s. 130(1)). The amount of lump sum compensation depends on the degree of permanent impairment which in such a case as this is determined by a registered medical practitioner (s. 130(2) and s. 130A(1)(c)). If WorkCover (the board) and the worker cannot agree upon the degree of permanent disability, the board is required to refer the question to a medical assessment tribunal (s. 130A(4)). However, where the board and the worker both accept the worker’s degree of permanent impairment as assessed by the registered medical practitioner the board may make an offer of lump sum compensation (ss. 132(1), 132(2)).
  1. [7]
    On 13 October 1998 WorkCover wrote to the plaintiff enclosing a “Notice of Assessment”, a document entitled “Important Information” and a copy of ss. 182A, 182B and 182C of the Act. That letter advised:

“...Your injury has been assessed to decide if the injury has resulted in a degree of permanent impairment.

A Notice of Assessment of permanent impairment is attached.  This notice provides the details of the assessment and the amount of lump sum compensation to which you are entitled for the injury.

As the amount of lump sum compensation is less than 20% of the statutory maximum compensation, I am required to provide you with a copy of  s. 182A, 182B and 182C of the Workers’ Compensation Act 1990 for your information.

The document ‘Important Information’ is also provided as a guide to help you understand the Notice and the Offer.  It is highly recommended that you read this document before making your decision.”

  1. [8]
    The notice of assessment document is in two parts. The first is headed “Permanent Impairment from Injury” and stated that as a result of the plaintiff’s medical assessment it had been determined that the plaintiff had sustained a degree of permanent impairment of 16%, that the degree of impairment attributable to the injury was 16%, that the percentage of statutory maximum compensation was 16% and that the amount of lump sum compensation to which he was entitled was $14,140. It also contained the two boxes under the heading “Step 1” with the words:

“You must make a decision about the degree of permanent impairment.  Please indicate you decision by ticking either Box A or Box B.  (Only one can be ticked.)”

  1. [9]
    The second part of the notice of assessment document is headed “Offer of Lump Sum Compensation”. Under the words “WorkCover offers payment of lump sum compensation in the amount of $14,140.00”, there appears to be the signature of a claims liability officer, and then the words:

“You must make an election about the offer of lump sum compensation.  Please indicate your election by ticking one of the boxes below, signing and returning the notice to WorkCover.”

  1. [10]
    However the plaintiff did not complete step 1 of the document. He signed and dated the document having completed step 2 of the document by ticking the box “I reject the offer”. Next to this box the following words were printed in the form:

“In rejecting I understand that I am not entitled to lump sum compensation but may seek damages at law for the injury.”

  1. [11]
    The plaintiff stated in his affidavit that he “erroneously did not complete step 1 by ticking the Box A agreeing with the degree of permanent impairment” as he was of the view that by not ticking the box and moving to step 2 and rejecting the lump sum offer that he had confirmed his acceptance of the degree of permanent impairment assessed by WorkCover of 16%. He stated that, “It was only the lump sum compensation offer that I disagreed with.” He also deposed to his having read the Important Information document which was attached to WorkCover’s letter to him of 13 October 1998 but that he had “at all times believed that by rejecting the offer and electing to pursue damages that he was not disagreeing with the degree of permanent impairment.”
  1. [12]
    The first page of the Important Information document which accompanied the plaintiff’s notice of assessment document in October 1998 relevantly advised the plaintiff that:
  • if a worker has a percentage of statutory maximum compensation of less than 20% then the worker must

    choose between accepting the statutory lump sum or seeking damages at law;

  • with respect to the lump sum offer and the notice of assessment – that he was required to make two (2)

    decisions and these decisions must be made within 28 days of the notice of assessment;

  • that the first decision was about permanent impairment and if he agreed with the degree of permanent

    impairment stated in the notice of assessment, he was to tick the appropriate box on the notice and proceed to the second decision;

  • if he disagreed with the degree of permanent impairment stated, he was to tick the appropriate box on

    the notice and sign and return the notice to WorkCover within 28 days.  He was not required to make a decision about the offer of lump sum compensation, that the offer would be withdrawn and a fresh notice of assessment would be sent after the tribunal had decided the degree of permanent impairment.

  1. [13]
    The Important Information document then described the second decision to be made as follows:

“The second decision is about the Offer of Lump Sum Compensation.

Having agreed with the degree of permanent impairment assessed by the doctor, you must decided to:

1. Accept the offer

In accepting a cheque will be sent when the notice is received.  Please understand in accepting this offer you have no entitlement to seek damages at law.

2. Reject the offer

In rejecting you understand that you may seek damages at law, however you are no longer entitled to lump sum compensation for the injury.

3. Defer the offer

In deferring you understand that you may accept this offer at a later time by written notice to WorkCover.  I further understand that if I seek to negotiate a damages settlement or commence proceedings for damages, I can no longer accept the offer.

You should tick the appropriate box on the notice, sign and return the notice to WorkCover.  If you do not notify WorkCover of your decision within 28 days it is taken that you have deferred your decision.”

  1. [14]
    Although WorkCover seems not to have been able to locate it, on 14 October 1998 the plaintiff returned the signed notice of assessment document to WorkCover. This was accepted by the defendants at the hearing. It seems that the plaintiff had retained his solicitors Baker Johnson Lawyers to act for him in the matter before he returned the notice of assessment document to WorkCover. He stated:

“I attended on my solicitor Mr Michael Baker on 13 October 1998 and informed him I did not disagree with the percentage impairment assessed of 16% but rather the amount of the lump sum offered by WorkCover.  I had a discussion with my solicitor Mr Michael Baker as to the work of a  16% assessment under each relevant head of damage at common law.  In light of Mr Baker’s assessment at common law I instructed my solicitors to reject WorkCover’s offer contained in their letter of 13 October 1998 in so far as it relates to the amount of lump sum payment.”

  1. [15]
    On 22 October 1998 the plaintiff’s solicitors wrote to WorkCover Queensland advising that they had received instructions from the plaintiff to advise him “in relation to an offer of settlement of a work related disability claim.” They requested WorkCover provide a copy of the plaintiff’s complete file in connection with the matter. That was provided to the plaintiff’s solicitors on about 3 November 1998. On 13 November 1998 the plaintiff’s solicitors wrote to WorkCover advising that they confirmed that “the offer as contained in your letter of 13 October 1998 is rejected. Please issue a certificate by return.” The request for a certificate might suggest that the plaintiff had rejected the impairment assessment. Mr Ross Percival, a solicitor employed by the plaintiff’s solicitors, deposed that by that letter dated 13 November 1998 Baker Johnson had confirmed that WorkCover’s offer contained in the Notice of Assessment was rejected and had “mistakenly” requested that WorkCover issue a damages certificate. On 24 November 1998 the plaintiff’s solicitors again wrote to WorkCover in the same terms as their letter of 13 November 1998.
  1. [16]
    However on 25 November the plaintiff’s solicitors wrote to WorkCover referring to their letter of 24 November and advising:

“Our client rejects your offer on both counts.  Both in respect to its finding on the percentage disability and both in respect of the compensation as offered.  Our client will pursue his rights at common law.”

  1. [17]
    The plaintiff deposed that he did not “confirm” the contents of Baker Johnson’s letter to WorkCover dated 25 November 1998 “in so far as it may relate to the degree of impairment assessed”. Division 2 of Part 9 of the Act might suggest that WorkCover took that letter as indicating that the plaintiff and WorkCover could not agree on the degree of permanent impairment, as on 1 December 1998 WorkCover referred the issue of the degree of the plaintiff’s permanent impairment to a medical assessment tribunal: see s. 130A(4) of the Act. The reference indicates that WorkCover’s given reason for the referral was “offer rejected”. By letters dated 20 January 1999 WorkCover advised the plaintiff’s solicitors and the plaintiff that the matter had been referred to the Orthopaedic Assessment Tribunal for determination on 17 February 1999 and that the plaintiff was required to attend. On 3 February 1999 WorkCover again wrote to the plaintiff referring to the hearing on 17 February 1999 and enclosing a copy of his application for compensation and other documents relating to the claim. The plaintiff duly attended before the Tribunal and was assessed.
  1. [18]
    Meanwhile, on 11 January 1999, the plaintiff’s solicitors had filed his plaint in this Court claiming $250,000 for damages for personal injury allegedly caused by the negligence and/or breach of duty an/or breach of statutory duty of the first, second and third defendants.
  1. [19]
    On about 17 February 1999, WorkCover forwarded a copy of the medical assessment tribunal decision to the plaintiff’s solicitors. WorkCover issued a notice of assessment document dated 15 February 1999, which again indicated that the degree of permanent impairment was 16%, that the amount of lump sum compensation to which the plaintiff was entitled was $14,140 and offering payment of lump sum compensation in that amount. That form did not contain Box A or Box B. On 2 March 1999 the plaintiff’s solicitors wrote to WorkCover noting they had received a copy of the Tribunal’s decision and requesting that WorkCover issue a damages certificate authorising their client to institute common law proceedings. It may be noted that despite the plaint having been filed, the plaintiff’s solicitors by that letter requested the damages certificate “to institute” proceedings. However, Mr Percival, the solicitor employed by Baker Johnson deposed that on 2 March 1999 Baker Johnson “again incorrectly wrote to WorkCover requesting they issue a damages certificate”.
  1. [20]
    On 5 March 1999 the plaintiff’s solicitors wrote to WorkCover enclosing the February 1999 notice of assessment which they described as “containing our client’s rejection of the board’s determination and the offer of settlement”. The plaintiff had ticked the box rejecting the offer and apparently signed it on 5 March 1999. The solicitors again requested WorkCover issue a certificate. On 9 March 1999 WorkCover, issued a conditional certificate advising the plaintiff that:

“Section 182D of the Workers’ Compensation Act provides that a worker who has not received an offer of lump sum compensation under s. 132 may seek damages at law for an injury suffered on or after 1 January 1996.

Please find attached a conditional damages certificate which will allow you to commence proceedings at law for damages.  Please note however, that the proceedings are stayed until WorkCover makes the certificate unconditional.”

The issuing of a conditional certificate suggests that in response to the solicitors’ requests the board had determined there was an “urgent need” to bring the proceedings as the degree of impairment had been decided by the tribunal:  s. 182D(4).

  1. [21]
    In these proceedings a WorkCover officer swore that shortly after 5 March 1999 WorkCover had received the 1999 notice of assessment “duly completed by the plaintiff”. For some unexplained reason on 12 March 1999 WorkCover requested the plaintiff indicate his election and that he complete the notice of assessment and return it as a matter of urgency. On 26 March 1999 WorkCover advised that the plaintiff’s application had been considered and that the damages certificate would allow him to continue the proceedings at law for damages. The damages certificate which issued on 26 March 1999 stated that “this certificate allows proceedings to be commenced”. On or about 21 April 1999 the plaint was served on the first, second and third defendants. A copy of the plaint was later served on WorkCover. It seems that no WorkCover officer was aware that the plaint had been issued prior to its being served on WorkCover.
  1. [22]
    On 18 May 1999 WorkCover’s solicitors wrote to the plaintiff’s solicitors informing them that they had received instructions that day from WorkCover and the third defendant. They noted that the third defendant’s defence would be due on or before 21 May 1999 and requested an extension of time to do so. The plaintiff’s solicitors agreed to an extension of one month from 21 May 1999.
  1. [23]
    The third defendant’s defence was delivered to the plaintiff’s solicitors under cover of WorkCover’s solicitors’ letter of 18 June 1999 advising that in the third defendant’s opinion the plaintiff had failed to comply with ss. 182D(1), (3) and (4) by failing to obtain a damages certificate prior to instituting proceedings. The third defendant pleaded that the plaintiff was for those reasons prohibited from seeking damages at law with respect to the injury. On 28 June 1999 the plaintiff’s solicitors wrote to WorkCover’s solicitors asserting that s. 182D had no application to the action as by the notice of assessment dated 14 October 1998 the plaintiff was required to make an election pursuant to s. 182B and that the plaintiff did so by rejecting the offer and electing to seek damages at law. The second defendant’s defence dated 23 August 1999 was served by the second defendant’s then solicitors on the plaintiff’s solicitors as was the defence of the first defendant dated 17 September 1999 by its solicitors. Neither defence relied on s. 182D of the 1990 Act until the first and second defendants amended their defences when they also applied to have the action struck out.
  1. [24]
    It is convenient to determine first whether the plaintiff received from the board (as WorkCover was then called) an offer of lump sum compensation pursuant to s.132, prior to the plaintiff’s commencing the action in January 1999. This depends on whether the plaintiff accepted the assessment of impairment disability. If the lump sum offer was made then the plaintiff was entitled to choose between accepting the lump sum compensation offered and seeking damages at law: s. 182B(2). The plaintiff asserted that he had received an offer of lump sum compensation which he had rejected and accordingly, that he had an entitlement to sue under s. 182B of the Act. His argument proceeded on the basis that there had been a valid offer of lump sum compensation pursuant to s. 132 because the plaintiff had by his conduct accepted the degree of assessed permanent incapacity.
  1. [25]
    Section 132 allows the board to make an offer of lump sum compensation to a worker who has sustained a permanent impairment. Relevantly ss.132(2), (5) and (6) provides:

“132...(2) An offer may be made only if –

  1. (a)
    The board and the worker both accept the worker’s degree of permanent impairment is the degree assessed by a registered medical practitioner ...; or
  2. (b)
    A medical assessment tribunal has decided on a reference under Part 10 that the worker has sustained a degree of permanent impairment.
  1. (5)
    An offer may be accepted or rejected, or a decision about the offer may be deferred, within 28 days after a written offer is made by the board (the decision period).
  1. (6)
    If, within the decision period, the worker does not advise the board that the offer is accepted or rejected or that the worker wishes to defer the decision, the worker is taken to have deferred the decision.”
  1. [26]
    Part 11 of the 1990 Act provides for entitlement to damages independently of the Act. Section 182B requires that the worker in some cases choose between claiming lump sum compensation or damages at law. It provides:

“182B(1)A worker to whom lump sum compensation is payable under Part 9 Division 2 for an injury is not entitled to both –

(a) lump sum compensation for the injury; and

(b)damages at law for the injury.

  1. (2)
    The worker must choose between accepting lump sum compensation offered under this Act and seeking damages at law.
  1. (3)
    The worker must give the board notice of the worker’s choice in the approved form.
  1. (4)
    If the worker fails to give the board notice of the worker’s choice before the worker seeks damages at law, the worker is taken to have made a choice to reject lump sum compensation for the injury.
  1. (5)
    The worker cannot change the worker’s choice after –
  1. (a)
    notice of it is given to the Board; or
  1. (b)
    it  is taken to have been made under subsection (4).
  1. (6)
    The worker is taken to seek damages at law for the injury when the worker –
  1. (a)
    seeks to negotiate a damages settlement with the Board; or
  1. (b)
    starts proceedings at law for damages.”
  1. [27]
    Section 182D then permits a worker to seek damages at law where no offer of lump sum compensation was received provided the worker obtains a certificate prior to instituting the action.
  1. [28]
    It was common ground that the notice of assessment document sent on 13 October 1998 to the plaintiff did not constitute an unconditional offer although the second part or step 2 of the document is headed “Offer of Lump Sum Compensation”: see Wylie DCJ in Hermann  v. Buzza (DC 4561 of 1997, 12 June 1998, unreported).  In Hermann the worker ticked Box B, indicating his disagreement with the assessment of  degree of permanent disability.  Box B also advised him not to complete the election section of the form, but he did so by ticking the “I reject the offer” box.  He returned the form to WorkCover.  In Wylie DCJ’s view, the worker had not agreed to anything and WorkCover’s response was to note that the plaintiff disagreed with the assessment, that the offer of lump sum compensation had been withdrawn and his claim would be referred to a medical assessment tribunal. In his view subsection 132(2) contained a condition precedent to the board’s power to make such an offer to an injured worker and that only after there was mutual acceptance of a medical practitioner’s assessment of the worker’s degree of permanent impairment or, absent such agreement, a medical assessment tribunal had determined the degree of permanent impairment, could such an offer of lump sum compensation be made by the board.  By ticking Box B the worker in Hermann clearly indicated that he disagreed with the degree of permanent impairment.  I do not accept the defendants’ submission that the effect of the plaintiff’s failure to tick a box in step 1 had the same result as what occurred in Hermann.   There is no requirement in the Act that the failure to tick a box fetters the offer of lump sum compensation.  Demack J in Hibberd v. South Blackwater Coal Ltd. (SC 47 of 1997, 28 August 1998, unreported) declined to follow the reasoning in Hermann.   He found that a worker who did not return the notice of assessment had received a lump sum offer.  In Hibberd the worker placed a cross against “I defer the offer”, and signed and dated it but did not return it to the board.
  1. [29]
    After discussing ss. 130, 130A and 132 Demack J. said:

“A worker to whom lump sum compensation is payable under division [2] of Part 9 of the Act is not entitled to both lump sum compensation for the injury and damages at law for the injury (s. 182B(1)).  If the worker fails to give the board notice of the worker’s choice before the worker seeks damages at law, the worker is taken to have made a choice to reject lump sum compensation for the injury (s. 182B(4)).  There is a requirement in s. 182B(3) that the worker must give the board notice of the worker’s choice in the approved form.  The plain words of s. 182B(4) make it clear that the provision in s. 182B(3), which appears to be mandatory, does not need to be complied with.  The worker may reject the offer by commencing proceedings.

The argument addressed by WorkCover turns on the words of s. 132(2) that an offer of lump sum compensation ‘may be made only if the board and the worker both accept the worker’s degree of permanent impairment..... assessed by a registered medical practitioner.’  The argument assumes that there must be some kind of formal acceptance by the worker.  The Act does not say that, and the plain effect of s. 182B(3) and s. 182B(4) which was introduced into the Act in 1995 with the present s.132 shows that, while Parliament expected that the worker should follow an orderly course, it should not be reduced to some mindless ritual.”

I am in respectful agreement with Demack J’s analysis of the statutory provisions.

  1. [30]
    In Hibberd the board had sent the notice of assessment document and other information under cover of a letter which concluded:  “Please complete this form only if you accept the degree of permanent impairment.”  Demack J. said he did not see anything in the Act or in the documents sent to Mr Hibberd that required an approach as treating the offer as a provisional or qualified one as the covering letter had contained advice that response to the enclosed form meant acceptance of assessment of permanent disability and a choice between lump sum compensation and litigation.  In his view the letter made it very clear that completing the form involved an acceptance of the degree of permanent disability and if the degree of permanent disability was accepted then the attached form contained the offer.  Accordingly he found that once that worker had completed the form the statutory requirement that there be an agreement between the worker and the board about the degree of permanent impairment was met.
  1. [31]
    No relevant distinction should be drawn between Hibberd and the present case, as Mr Douglas SC for the defendants submitted, merely on the basis that the worker in Hibberd ticked the offer deferral box and the plaintiff ticked the offer rejection box.  Apart from the covering letter, there is a relevant distinction between the two cases as in Hibberd there was no further communication from the worker to the board prior to commencing proceedings, whereas in this case, the plaintiff’s solicitors’ letter of 25 November made it clear that the plaintiff rejected the assessment and further, the plaintiff underwent an assessment by a medical assessment tribunal.  The plain words of s. 130A(4) then suggest that when the board referred the matter to the tribunal for decision, when the plaintiff underwent that assessment and when his solicitors communicated with WorkCover following the tribunal's determination and in relation to that determination, that the board and the plaintiff were not in agreement about the degree of permanent impairment.
  1. [32]
    In contrast to Hibberd the covering letter in Coombs v. Queensland Cotton Corp. Ltd. (SC 5214 of 1999, Helman J. unreported 14 October 1999) appears to have been in similar form to that received by the plaintiff in October 1998, as were the notice of assessment and the Important Information document.  There the worker did not respond to WorkCover’s letter or return the notice of assessment, although, like the plaintiff he ticked the box beside the words “I reject the offer” in the notice and signed it and apparently did not tick Box A or Box B.  Helman J. found that he had received an offer of lump sum compensation before he began his action. By reference to the information in Box A and Box B and in the Important Information document Helman J. observed that one could infer from his failure to respond alone that he did not disagree with the assessment.  In my view, in order to construe the notice of assessment and accompanying documents, it is not necessary to have regard to the plaintiff's affidavit so far as it deposes to his intentions, knowledge or state of mind.  The inferences drawn by Helman J. from his examination of the notice in Coombs, are just as apposite in this case.  Helman J. said:

“Do the facts show that the plaintiff accepted the assessment?  In Box B in step 1 in the notice of assessment he was requested to sign in the space provided in that box and return the notice to WorkCover Queensland, so one could to infer from his failure to respond alone that he did not disagree with the assessment.  In Box A in step 1 of the notice of assessment he was required to sign in the space provided but no mention was made of returning the notice to WorkCover Queensland, as was the case in Box B.  An injured worker reading that part of the notice could then reasonably have concluded that failing to respond in step 1 would be taken as acceptance of the assessment.” 

  1. [33]
    Helman J also noted there was nothing in the 1990 Act requiring notification of acceptance of the assessment, nor in the notice of assessment or the Important Information document (as is the case here), and accordingly he decided that it would have been open to an injured worker once an offer had been made, to refrain from responding to the offer without losing the right to institute an action for damages. He also said:

“...clearly enough a two step process was contemplated by the 1990 Act:  first, a requirement of s. 132(2) must have been satisfied, and only then, an offer might validly be made.  That consideration could lead to the conclusion that the offer dated 10 June 1998 was ‘provisional’ or ‘qualified’ only, to have effect and be an offer permitted to be made under s. 132 only if the plaintiff were to accept the assessment of the degree of his permanent impairment by the registered medical practitioner:  see Wylie DCJ’s analysis in Hermann v. Buzza.  If that analysis was to be applied to this case the offer could not have ceased to be provisional or qualified, and thereby have become effective until after 11 June 1998 the plaintiff received the letter and other documents. It would follow that the 28 day decision period provided for in s. 132(5) could not have begun to run until there was acceptance by WorkCover Queensland and the plaintiff pursuant to s. 132(2)(a) – if there were such acceptance.  Since there was the requirement that the plaintiff make his decision as to acceptance or not within 28 days of 10 June 1998 and since in my view he signified his acceptance by failing to return the notice within 28 days of 10 June 1998, the offer ceased to be provisional or qualified when that 28 day period expired.  In spite of the instruction in the Important Information document, the effect of s. 132(5) would have been to allow to the plaintiff another 28 days to decide whether to accept or reject the offer, or to defer his decision about the offer.”

  1. [34]
    Nowhere in the documents sent to the plaintiff in October 1998 was it suggested he had to specifically communicate his acceptance of the assessment. The offer referred to in s. 132(2) means an offer which may be conditional on the acceptance by both the board and the worker of the assessed degree of permanent impairment. Although the opening words in step 1 “you must make a decision” appear mandatory, it is followed by a courteous request to indicate that decision. Similarly, the courteous request to continue on to step 2 in Box A may be contrasted with the requirement in Box B that the worker does not proceed to step 2 if he disagrees with the assessment of permanent impairment. At that point then the plaintiff had accepted the degree of permanent impairment. The situation in Hermann was entirely different.
  1. [35]
    In contrast to Coombs, here the plaintiff did return the notice of assessment form which he had signed and dated to WorkCover on 14 October 1998.  As has been noted, the covering letter in Hibberd differed from that which the plaintiff received, but there was also no further communication in Hibberd from the worker to WorkCover clarifying his position.  Applying the reasoning in those cases to the relevant documents here, I am persuaded that the plaintiff had received an offer of lump sum compensation within the meaning of s. 182D when he signed the notice, and at the latest when he returned it to the board on 14 October 1998. 
  1. [36]
    The plaintiff’s position was changed by his solicitors’ letter of 25 November 1998 which quite plainly rejected the assessment of impairment. It also made the choice to reject lump sum compensation for the injury (s. 182B(4). By his solicitor’s letter of 25 November 1998 the plaintiff resiled from his acceptance of the assessment of permanent impairment. The correspondence that follows effectively confirmed that the plaintiff had not agreed with the impairment assessment. Was the letter tantamount to amending the notice of assessment by ticking Box B so that the plaintiff could not then proceed to claim damages at law without first obtaining a s.182D certificate?
  1. [37]
    The evidence of the plaintiff’s solicitors was that the request for a certificate on 13 November 1998 was a mistake. Nonetheless the plaintiff proceeded to undergo assessment by the medical assessment tribunal, a course which should not have been open had the plaintiff accepted the assessment of impairment made by the registered medical practitioner as set out in the first notice of assessment. The solicitors maintained their request for a certificate after the tribunal’s decision was made. When the conditional certificate and later the certificate were issued they failed to advise WorkCover that they believed the plaintiff was in agreement with the original impairment assessment. They did not cause the plaint to be served until after the certificate was issued. At the latest the offer of lump sum compensation was withdrawn when WorkCover referred the matter to a medical assessment tribunal.
  1. [38]
    It does not follow that the plaintiff required a certificate to commence the action if when the plaint was filed he was not then in receipt of an offer of lump sum compensation. He accepted assessment of the degree of permanent disability at the latest by 14 October 1998 when he returned the signed and dated notice of assessment to WorkCover. It matters little, in my opinion, that WorkCover responded to his solicitors’ letter of 25 November 1998 by referring the matter to a medical assessment tribunal. However the plaintiff was assessed by that tribunal and a certificate issued.
  1. [39]
    Undoubtedly the plaintiff had received an offer of lump sum compensation in 1998.  Does it follow that the plaintiff was not “a worker who has not received an offer of lump sum compensation under s. 132”:  see s. 182D(1)?  I think not.  Clearly an interpretation which restricts a person access to the courts should not be preferred.  Sub-section 182D(1) does not require by its express words that the offer of lump sum compensation must be extant when an action is commenced.  However on its proper construction it cannot be said that s. 185D(1) means no more than the worker may seek damages at law if he has received an offer of lump sum compensation at some stage.  Regard must be had to the other matters referred to in s. 185D, for example “if the degree of ... impairment is not agreed or has not been decided by a tribunal” in s. 185D(4)(a), and that the decision of “a tribunal is final and cannot be question in any proceedings” before a court in s. 185D(9).
  1. [40]
    The degree of impairment may be decided by a tribunal only if the board and worker cannot agree about it (s. 130A(4)). It is not inconceivable that in circumstances such as this that a tribunal might determine differently from the original impairment assessment which was the subject of the earlier offer of lump sum compensation. In my view s. 182D(1) does not admit of a worker commencing an action unless the degree of impairment remains in agreement at the time the action is commenced, or unless the worker holds the certificate at that time. Consequently the action is barred.
  1. [41]
    In my opinion the facts relied upon did not establish a waiver. The plaintiff relying on the decision of Forde DCJ in Neuss v. Roche Bros Pty Ltd [1999] QDC 249 argued that WorkCover had waived his obligation to obtain a certificate by its failing to raise the s.182D point until after the limitation period had expired and by requesting an extension of time in which to file a defence.  There was evidence from the plaintiff’s solicitors that they would have acted differently and obtained a conditional certificate if the issue had been raised before the limitation period had expired..  However in Neuss the amended defence raising the s. 182D issue was not delivered until after the defendant had signed the certificate of readiness.  His Honour also found that in the absence of any explanation by WorkCover’s solicitors that “one could more readily infer that they were aware of the failure by the applicant to comply with s.182D and the failure to plead was an intentional act.”  Even accepting that the requirements of s.182D(1) may be waived by WorkCover, in my view what occurred in the present case would not amount of a waiver.  Here the issue was raised when the defence was filed outside the limitation period but within the period permitted by the plaintiff’s solicitors for the filing of the defence.  WorkCover’s solicitors’ letter requesting the extension of time does not in the circumstances assist in the waiver argument.
  1. [42]
    Accordingly, the plaintiff’s application is dismissed and I will make the order sought in paragraph 1 of the defendants’ application. I will hear submissions as to the form of order and costs.
Close

Editorial Notes

  • Published Case Name:

    Lentini v Redland Shire Council & Ors

  • Shortened Case Name:

    Lentini v Redland Shire Council

  • MNC:

    [2000] QDC 217

  • Court:

    QDC

  • Judge(s):

    Wolfe CJDC

  • Date:

    07 Jun 2000

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Mears v Coles Myer Ltd [1999] QSC 194
1 citation
Jump To
Cite 1 - [1999] QSC 194
Neuss v Roche Bros Proprietary Limited [1999] QDC 249
1 citation
Jump To
Cite 1 - [1999] QDC 249

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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