Lincoln v Qantas Airways Limited
[2012] QDC 278
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- Unreported Judgment
- Lincoln v Qantas Airways Limited[2012] QDC 278
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Lincoln v Qantas Airways Limited[2012] QDC 278
Lincoln v Qantas Airways Limited[2012] QDC 278
DISTRICT COURT OF QUEENSLAND
CITATION: | Lincoln v Qantas Airways Limited [2012] QDC 278 |
PARTIES: | Paul Lincoln v Qantas Airways Limited |
FILE NO/S: | BD3864/11 |
DIVISION: |
|
PROCEEDING: | Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 31 August 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 August 2012 |
JUDGE: | Samios DCJ |
ORDER: |
|
CATCHWORDS: | Workers compensation – construction of statute – notice of assessment – notice of claim - one injury two possible events Legislation: Workers Compensation and Rehabilitation Act 2003 s 237(1)(a)(i) WorkCover Queensland Act 1996 s 253(1)(a)(i) Cases: Andersen v Aged Care Employers Self Insurance (2011) QSC 101, followed Dowd v Swift Australia Pty Ltd (2008) QCA 228, followed Gorry v Australia Meat Holdings Pty Ltd (2007) QSC 161, referred to Sayers v Hanson Trading as Alguard Security Services (2011) QSC 70, distinguished |
COUNSEL: | Mr Charrington for the applicant/plaintiff Mr O'Neill for the respondent/defendant |
SOLICITORS: | Maurice Blackburn Lawyers for the applicant/plaintiff HWL Ebsworth Lawyers for the respondent/defendant |
- [1]The plaintiff seeks the following orders:
- A declaration that the plaintiff is entitled to seek damages pursuant to s 237(1)(a)(i) of the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCRA) and s 253(1)(a)(i) of the WorkCover Queensland Act 1996 (Qld)(WQA) for the back injury specified in the notice of claim dated 13 September 2011;
- The defendant issue a damages certificate in respect of the injury pursuant to s 265 of the WQA.
- [2]The plaintiff commenced employment as a baggage handler with the defendant on 10 September 1994. Throughout his employment his duties have included repetitive handling of heavy bags under significant time pressure. He states his back has gradually worsened during the course of his employment with the defendant due to the heavy repetitive nature of his duties. He states throughout his employment prior to 1 October 2010 it was common for his back to feel somewhat tired and sore at the end of a shift. He expected this, given the physical nature of the work. Sometimes there would be a specific motion or lift that would cause pain and sometimes it would come on more gradually over a shift or a few shifts. On most occasions the symptoms were not too intense and did not interfere with his ability to work and settle down with a couple of days without any treatment. He did not worry too much about those short term aches and pains. If the pain was severe or did not resolve in a few days he would see a GP and make an incident report at work and lodge a Workers Compensation form if advised by the doctor that he needed time off work. He states he lodged Workers Compensation applications for low back pain on 2 October 1998, 8 October 2000, 11 May 2001, 13 July 2004, 19 May 2005, 26 October 2005, 15 January 2009 and 27 May 2010. He states these were the occasions when he had back pain that was severe enough to require treatment, time off work or on reduced duties. On each of these occasions, the pain resolved within periods ranging from five days to six weeks and he continued performing his usual duties. In between these episodes, he had frequent intermittent episodes of short lived, less intense pain in his back which did not interfere with his ability to work.
- [3]The plaintiff states that on or around approximately 13 September 2010 he had some back pain that came on over the course of his shifts over about two days. It did not interfere with his work and it settled down again after another couple of days so he did not see the GP, get any treatment or make a claim. Approximately two weeks later, on 1 October 2010, he stepped off a tug he had been driving at work, and felt a sharp twinge of pain behind his left knee. For the rest of that day and over the next few days he had some mild pain and an intermittent sensation of tingling or numbness in his left leg. He was able to keep working despite these symptoms and he expected them to settle down within a few days as was usually the case. However as they did not improve, on 6 October he saw the defendant’s GP, Dr O'Toole at the CB Medical Centre. The plaintiff states Dr O'Toole advised him that the symptoms in his leg were probably caused by an irritated nerve in his back. He was given a medical certificate for light duties for the next week, with reduced hours and restricted lifting of 10 kilograms and recommend that he use Voltaren and have some physiotherapy. He took that medical certificate to the rehabilitation office at his work on 8 October 2010. He spoke to a rehabilitation officer who placed him on a suitable duties plan. This officer advised him that he did not need to lodge a workers compensation claim at that stage as she would just re-open the last claim he had made, which was for a lumbar muscle strain on 26 May 2010. That claim had been closed in early July 2010 as the plaintiff had been able to return to his full duties after some light duties and physiotherapy.
- [4]The plaintiff states on 6 October 2010 Dr O'Toole had advised him that he would see him again in the week to see if the pain had settled down. Over the next few days however the pain in his leg increased significantly and he started to feel some pain in his lower back as well. He returned to the CB Medical Centre on 12 October 2010 a day earlier than planned, and reported the increased symptoms to Dr O'Toole. He was given a referral for an MRI which he booked for Friday 15 October 2010. He states later that day he felt a much more severe pain in his lower back and legs. He went to the Redcliffe Hospital and was given some pain relief which helped. The plaintiff states he had the MRI on 15 October 2010. He lodged a workers compensation form on that day so that the defendant would pay for the MRI. On that form the plaintiff wrote the day of injury as 13 September 2010. He states he wrote that because he had been told that by Dr O'Toole that this was all caused by a back injury because that was the most recent occasion he could think of when he had had any back pain, although it had settled down after a couple of days and had not stopped him working at that stage.
- [5]The plaintiff states on 21 October 2010 he returned to the CB Medical Centre and saw another GP. This GP told him that the MRI showed he had a compressed nerve in his lower back. This GP referred him to a specialist to discuss the options for treatment. The plaintiff states he saw a neurosurgeon, Dr Licina on 28 October 2010. Dr Licina told the plaintiff that the plaintiff had a disc prolapse. Dr Licina’s report which is an exhibit in these proceedings states that the MRI scan showed a large disc prolapse. The plaintiff states Dr Licina told him he would probably need surgery. The plaintiff states his symptoms did not get better and he was advised by telephone on 11 November 2010 that the defendant’s workers compensation had accepted his claim and would pay for the surgery. He underwent surgery on 12 November 2010. He states the surgery resulted in some improvement in his symptoms, but did not completely resolve them.
- [6]The plaintiff states he believes the defendant caused his injury by requiring him to engage in new unsafe heavy repetitive lifting throughout his employment, causing a gradual weakening of his back.
- [7]The plaintiff states he saw his solicitors on 22 December 2010. Between 22 December 2010 and August 2011 he continued with rehabilitation and light duties at work funded by the defendant’s workers compensation.
- [8]The plaintiff states he continued under the care of Dr Licina and was also referred to Dr Cameron, a neurologist because he had ongoing symptoms of numbness in his leg.
- [9]The plaintiff states on 3 August 2011 he was issued with a notice of assessment by the defendant’s workers compensation. The notice of assessment states that it was for a disc prolapse occurring on 13 September 2010.
- [10]The plaintiff took annual leave in August and September 2011. Although he went on holidays he experienced significant pain which severely affected his enjoyment.
- [11]On his return to Brisbane the plaintiff states on 9 September 2011 he instructed his solicitors to commence a common law claim against the defendant due to the ongoing problems he was still suffering as a result of his injuries. He states he instructed his solicitors that he wished to commence a claim in respect of the injury which had caused him to require surgery and to be unable to perform his full duties since October 2010. He states he has heard that injury described by the doctors he has seen as either a disc prolapse or a disc protrusion. He states he understands that both of these terms refer to the same injury. He states he has only suffered one such injury in his life. He states he again instructed his solicitors and he believed the defendant had caused that injury by requiring him to engage in unsafe heavy, repetitive lifting throughout his employment, causing a gradual weakening of his back. He states on 13 September 2011 he attended the offices of his solicitors and signed a notice of claim for damages form to be sent to the defendant. In this form the particulars of the injuries alleged to have been sustained because of the event, in question 41 it is stated:
- (a)Part of body injured ...
- (i)Lower back
- (b)Nature of injury/ies ...
- (i)Disc prolapse
- (c)Degree of permanent impairment ...
- (i)20 per cent
- (d)Has a notice of assessment been received? (Yes/No)
- (i)No.
- [12]The plaintiff states that he provided the factual information to his solicitors to complete the notice of claim for damages. He relied on the advice of his solicitors in respect of aspects of that form which included legal terminology or interpretation of law, including the answer to question 41.
- [13]The plaintiff states on 7 December 2011 he was examined by Dr Campbell, a neurosurgeon.
- [14]Dr Campbell in his report states in his opinion the plaintiff suffered a chronic soft tissue musculo-ligamentous injury to the lumbar spine and focal left L5/S1 disc protrusion. He states the lower back injuries over the years came on as a result of repetitive lifting and bending to move luggage from a conveyor belt to a plane and vice versa whilst performing his duties as a baggage handler. The disc protrusion most likely occurred when he stepped off a tug on 1 October 2010 as this is the time he developed left sciatica. The prior lifting injuries most likely weakened the lower back at the L5/S1 level contributing to the disc protrusion.
- [15]The plaintiff’s solicitor, Ms Hearn states that in preparing the notice of claim for damages she was aware of the existence of the notice of assessment issued to the plaintiff by the defendant on 3 August 2011 and which stated that it is for a disc prolapse and that the date of injury is 13 September 2010. She states at that time she believed that as the date of injury was stated on the notice of assessment to be 13 September 2010 that notice of assessment could not be relied upon to entitle the applicant to bring a claim for damages for a disc prolapse sustained as a result of duties over a period of time. She states on 20 September 2011 she served on the defendant the applicant’s notice of claim for damages on an urgent basis pursuant to s 276 of the Workers Compensation Act 2003. On 12 March 2012 Ms Hearn wrote to the solicitors for the defendant and drew their attention to the fact that the defendant had issued a notice of assessment for the injury that was the subject of the applicant’s notice of claim. She states she corrected pursuant of section 277 of the Workers Compensation and Rehabilitation Act 2003 the information provided at s 41 of the applicant’s notice of claim for damages. That is, in lieu of the negative answer to the question whether a notice of assessment had been received the plaintiff was stating “Yes”.
- [16]The defendant contends that the plaintiff in his notice of claim for damages claims for a different injury than the injury the subject of the notice of assessment dated 3 August 2011. That is because the notice of assessment is for an injury occurring on 13 September 2010 whereas in the notice of claim for damages the plaintiff claims for an over period of time injury from 1 December 1994 to 15 October 2010.
- [17]However the plaintiff contends that the same injury is the subject of the notice of assessment dated 3 August 2011 and the notice of claim for damages dated 13 September 2011.
- [18]There has been correspondence between the parties about their respective contentions. In the meantime, the plaintiff has sought leave of the court to commence proceedings without complying with s 275 of the WCRA and s 280 of the WQA. On 3 October 2011 His Honour Judge McGill granted leave to the plaintiff pursuant to s 298 of the WCRA and s 305 of the WQA for the plaintiff to start proceedings for damages. These proceedings are in respect of an injury alleged to have occurred over a period of time including the period 1 February 1997 to 6 October 2012.
- [19]Section 237(1)(a)(i) of the WCRA provides:
“(1) The following are the only persons entitled to seek damages for an injury sustained by a worker –
(a)the worker, if the worker –
- (i)has received a notice of assessment from the insurer for the injury; ...”
- [20]Section 253(1)(a)(i) of the WQA provides as follows:
“(1) The following are the only persons entitled to seek damages for an injury sustained by a worker –
- (a)the worker, if the worker has received a notice of assessment from WorkCover stating that –
- (i)the worker has sustained a certificate injury; ...”
- [21]The plaintiff has also in the meantime sought review from QComp. That review is being held in abeyance pending the outcome of the present application.
- [22]The applicant refers to three cases in support of the contention that the notice of assessment and the notice of claim for damages is for the same injury.
- [23]In Gorry v Australia Meat Holdings Pty Ltd 2007 QSC 161, Cullinane J held that the insurer could not issue an assessment in which it nominated a different event as having given rise to the injuries to that nominated by the plaintiff in the notice of claim. His Honour held the defendant could not. I do not find this case to determine the outcome in this matter.
- [24]The next case I have been referred to by the plaintiff is Dowd v Swift Australia Pty Limited 2008 QCA 228. In that case the plaintiff filed a proceeding for damages relating to a lower back injury sustained either on 13 April 2002 or over a period of time, namely from September 1999 to 13 April 2002 or on 15 May 2002 when on light duties. The defendant sought to strike out that part of the statement of claim relating to the over period of time claim and the specific date of 15 May 2002, on the grounds that the notice of assessment it issued specified the date of injury as 13 April 2002 only. Dutney J delivering the judgment of the court held that in dismissing the application the primary Judge proceeded on the basis that there was only one injury pleaded in relation of which compensation was sought and that was the injury as described in the notice of assessment. Dutney J said, “His Honour found that the cause of the injury and the date on which it was suffered were matters that should properly be left to the trial”. Dutney J further said, “In the circumstances the approach of the primary Judge, deferring consideration of the respondent’s entitlement to claim until the relevant facts were ascertained by trial was one which was difficult to criticise”. In my opinion this decision lends support to the plaintiff’s contention in this matter. That is the fact that the notice of assessment dated 3 August 2011 refers to the date of injury as 13 September 2010 is not conclusive. What is relevant is that notice of assessment states the injury is a disc prolapse and the notice of claim for damages also states that the injury is a disc prolapse.
- [25]Finally the plaintiff referred me to Andersen v Aged Care Employers Self Insurance 2011 QSC 101, a decision of Her Honour Dalton J. In that case the plaintiff nominated two dates of injury namely 22 and 23 August 2007. The notice of assessment listed the date as 23 August 2007. The plaintiff’s notice of claim when issued claimed in respect of two injuries namely 22 and 27 August 2007. In that case the defendant alleged there was no entitlement in the plaintiff to claim for an injury sustained on 22 or 27 August. In that case it was pointed out that the plaintiff had not worked on the 22nd and she conceded she was in error and the date should have in fact been 21 August. The defendant contended the plaintiff needed to seek a new assessment. Dealing with the defendant’s contention in that case Dalton J said, “The defendant claimed that because its notice of assessment stated the date of the plaintiff’s injury was 23 August 2007 only in relation to an injury on that date have the plaintiff been assessed. Further in respect of the injury occurring on that date only, was the plaintiff within s 237(1)(a)(i) and may make a claim for damages. Further the defendant contended that the plaintiff’s claim was in relation to two injuries. However Dalton J rejected those contentions. She said they rest on a confusion between the concepts of injury and event as defined by the WCRA. They also mistake the role of an insurer which issues a notice of assessment. In paragraph 23 of Her Honour’s reasons she states, “An injury is not the means by which damage is inflicted, but is the effect on the person of the worker of an event, as can be readily seen when the schedules to the WCR Regulation are perused. In common parlance one might speak of being injured by lifting a heavy load. But in terms of WCRA definitions, lifting the heavy load is the event, the injury is what results from that, say a back strain.” Further in paragraph 28 Her Honour said, “Under these provisions of WCRA, (the defendant’s) task in issuing a notice of assessment was to assess injury and impairment, not to make findings about what events caused the injury or the date those events might have occurred. (The defendant) was entitled to allocate a date as the date of the event causing injury when the claimant did not assert it; the factual material before it did not justify it, and where that date contradicted the view of the doctor (Dr Martin) who had assessed at the degree of permanent impairment on its behalf.”
- [26]The defendant on the other hand has referred me to Sayers v Alan Edward Hanson trading as Alguard Security Services (2011) QSC 70. That was a case in which the defendant sought to strike out paragraphs of a plaintiff’s statement of claim. The plaintiff had claimed that as a security guard he had discovered a body which had fallen from a high rise building and had suffered a consequential psychiatric illness. However further in his pleading he alleged that not having returned to work, he was subjected to harassment and intimidation by the defendant about when he would be returning to work. In his statement of claim the plaintiff attributed his psychiatric illness to both the discovery of the body and the subsequent harassment and intimidation. In Sayers, the plaintiff in his application for compensation stated the injury occurred on 7 October 2007 when he found the body that had fallen from the 27th floor and he was traumatised. His notice of assessment specified 7 October 2007 as the date of the injury. In his notice of claim for damages he again nominated 7 October 2007 as the time of the event and described the details of the event resulting in the injury by referring to the discovery of the fallen body but not to the subsequent alleged harassment. The Chief Justice found therefore that the plaintiff in that case had referred only to the event which occurred on 7 October 2007, referring to the discovery of the fallen body and not to the subsequent alleged harassment. Therefore the Chief Justice held the relevant provisions of the Act operated in the circumstances of that case to limit the plaintiff’s allowable claim for damages in court to an injury suffered consequent upon the discovery of the body on 7 October 2007, excluding any consequences of any subsequent alleged harassment, which would amount to a separate and distinct “event” or “events”.
- [27]In my opinion, the decision of Sayers is distinguishable from the present circumstances. In the present matter, in both the notice of assessment and the notice of claim for damages, the injury is referred to as a disc prolapse. In Sayers, the notice of claim for damages did not refer to the subsequent alleged harassment. In my opinion, the fact that the notice of claim for damages in the present matter refers to a period of time from 1 December 1994 to 15 October 2010 does not make the injury a different injury to that specified in the notice of assessment.
- [28]In my opinion, as Dalton J said in Andersen, the defendant’s task in issuing the notice of assessment was to assess injury and impairment, not to make findings about what events caused the injury or the date those events might have occurred.
- [29]In my opinion, as in Dowd, the cause of the injury and the date on which it was suffered are matters properly left to the trial.
- [30]Therefore I order:
- A declaration that the plaintiff is entitled to seek damages pursuant to section 237 (1)(a)(i) of the Workers Compensation and Rehabilitation Act 2003 (QLD) (WCRA) and section 253(1)(a)(i) of the WorkCover Queensland Act 1996 (QLD) (WQA) for the back injury specified in the notice of claim dated 13 September 2011;
- The defendant issue a damages certificate in respect of the injury pursuant to section 265 of the WQA.
- [31]I will hear the parties as to the question of costs.