Barraclough v WorkCover Queensland
[2012] QDC 321
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- Unreported Judgment
- Barraclough v WorkCover Queensland[2012] QDC 321
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Barraclough v WorkCover Queensland[2012] QDC 321
Barraclough v WorkCover Queensland[2012] QDC 321
DISTRICT COURT OF QUEENSLAND
CITATION: | Barraclough v WorkCover Queensland [2012] QDC 321 |
PARTIES: | Christine Jeanette Barraclough v WorkCover Queensland |
FILE NO/S: | Mackay D7 of 2012 |
DIVISION: | Civil |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court Mackay |
DELIVERED ON: | 19 June 2012 |
DELIVERED AT: | Townsville |
HEARING DATE: | 17 April 2012 in Townsville |
JUDGE: | Durward SC DCJ |
ORDERS:
LEGISLATION:
CASES: |
Workers’ Compensation and Rehabilitation Act 2003 ss 32(3), 132(1), 134, 237(1)(a)(i) and (b), 244, 245, 287, 302, 308, 392 (3), 586(4); Electronic Transactions (Queensland) Act 2001 ss 10, 11, 12 & Sch. 2. Lau v WorkCover Queensland [2002] QCA 244; Bell v Australian Meat Holdings Pty Ltd [2003]QCA 209; Dixon v Australian Meat Holdings Pty Ltd [2003] QSC 267; Watters v WorkCover Queensland [2001] 331; Trathen v Consolidated Meat Group (unreported S 248 of 2003 – 20.06.03); Fishlock v Plumber (1950)SASR 176; Gorry v Australian Meat Holdings Pty Ltd [2007] QSC 161; Stewart v Fehlberg [2008] QSC 292; Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514; Mitchell v Clancy [1960] Qd R 62. |
CATCHWORDS: | WORKERS’ COMPENSATION – PRELIMINARY REQUIREMENTS – NOTICE OF CLAIM FOR DAMAGES – NOTICE OF ASSESMENT – whether complying claim – whether RSD injury a ‘separate injury’ or a secondary consequence of injury described in Notice of Assessment – whether a different and unassessed injury – construction or meaning of injury as described. WORKERS’ COMPENSATION – MISCELLANEOUS MATTERS – OTHER MATTERS – WORKCOVER QUEENSLAND ADMINISTRATIVE SYSTEM – application made in the ‘paperless administrative system’ – whether system can lead to misinterpretation or other error by WorkCover Queensland – whether claimant should be relieved of consequences of failure of system – observations about the ‘paperless administrative system’. |
COUNSEL: | Crow SC for the applicant |
SOLICITORS: | Taylors Solicitors for the applicant |
- [1]The applicant claims that she sustained injuries to her hands on 27 June 2008 as a result of exposure to bleach when manually cleaning plates in a kitchen operated by her employer at a Central Queensland mining camp.
The injury report and assessment
- [2]The injury was reported to the employer on 30 June 2008 by the receipt of the first WorkCover Medical Certificate issued by Dr Begg. A workers’ compensation statutory claim was subsequently made to the respondent (“WorkCover”).
- [3]An application for compensation must be made in the Approved Form by the claimant: s 132 (1) of the Act. This includes oral applications made by phone. WorkCovers, administrative requirements did not require a written workers compensation application signed by the applicant. Her application for statutory compensation benefits was accepted but, for the same reason, a formal letter of acceptance was not provided to her. She was informed of the WorkCover decision by phone on 13 January 2009. The information provided to her was very limited.
- [4]Electronic communications are broad in character and include oral (phone) communications “or another method acceptable to the receiver of the approved form”: s 586 (4) of the Act and ss 10 to 12 and Schedule 2 of the Electronic Transactions (Queensland) Act 2001. A facsimile is one such “other method” that was utilised in this case. The “approved form” of applications under s 132(1) of the Act includes applications made by such electronic communications.
- [5]WorkCover concluded its injury assessment process on 10 March 2010, determining that the workplace injury was confined to bilateral burns to the hands.
- [6]Counsel referred to the process as the “paperless administrative system”. That may be literally correct to some extent so far as WorkCover is concerned, although WorkCover maintains a log of file notes that purport to record the substance of such communications. One can readily understand a potential administrative convenience for WorkCover through the utility of the system and that convenience might also benefit a claimant. However, a claimant may nevertheless be disadvantaged by not having his or her own record of the substance of the communications and where a solicitor has been retained by a claimant, the prudent necessity to confirm the substance of a communication by subsequent correspondence. Therefore one might question whether there is any cost saving in the system for WorkCover or for claimants.
- [7]An example of how information provided in the “paperless administrative system” is recorded by WorkCover – in this case – is at ‘Appendix A’.
The claim for damages
- [8]The applicant made a Notice of Claim for Damages dated 23 March 2010. In the claim form the injuries were particularised as follows:
- Right-hand/upper limb: burns, soft tissue injuries and reflex sympathetic dystrophy/causalgia (“RSD”)
- Left-hand: soft tissue injuries and burns
- Whole of body: psychiatric/psychological injuries, including adjustment disorder and depression (unassessed).
- [9]On 20 April 2010 WorkCover gave notice that it had rejected the claim with the exception of the chemical burn injuries to the hand, pursuant to s 237(1)(a)(i) and (b) of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”). The Notice of Claim was said to be non-compliant because it included a claim for damages for which WorkCover considered no entitlement then existed.
- [10]There was further correspondence between WorkCover and the applicant’s solicitors and on 04 August 2010 WorkCover accepted the soft tissue injuries and advised it would undertake a review of the RSD and the unassessed psychological injury. Subject to the latter two matters, the Notice of Claim was deemed compliant.
The Originating Application
- [11]The applicant has sought by way of relief two declarations:
“1. A declaration that the applicant’s Notice of Claim for Damages dated 23 March 2010 is a complying Notice of Claim within the meaning of s 302 of the Workers’ Compensation and Rehabilitation Act 2003”
and
- “A declaration that the applicant is entitled to pursue damages at common law for injuries listed in Item 41 of the Notice of Claim for Damages described as burns to the left-hand and right-hand, soft tissue injuries, complex regional pain syndrome – reflex sympathetic dystrophy of her right upper limb.”
The issues in the application
- [12]The issues are whether the RSD – or the symptomology described in that way – is or is not a “separate injury”; whether or not it has been accepted by WorkCover; and whether as a collateral issue the administrative system to which I have referred has caused or contributed to the issue of whether or not the RSD is a “separate injury”.
- [13]In determining this application I am not concerned with the psychiatric or psychological injury claim or with the issue of whether an RSD injury was caused in the incident on 27 June 2008. The latter of course is an issue for the trial.
Background
- [14]The issues seem to have arisen because WorkCover has applied a narrow and literal construction of the injuries as described by the applicant; and because of uncertainty about the symptomatology of the injuries as described.
- [15]The applicant had initially provided medical certificates dated 30 June 2008 and 09 July 2008 respectively from a general practitioner, Dr Begg, stating that the applicant had “Burns both hands”. WorkCover issued a Notice of Assessment on 10 March 2010, describing the injury as “burns to both hands” with a WRI of 0%.
Contentions
- [16]The applicant contends that the RSD was a secondary consequence of the injuries described in the Notice of Assessment. The respondent contends that the RSD was not the same injury as the burns to the hands, but a separate injury and therefore unaccepted by WorkCover and causally independent.
“Injury” and entitlement
- [17]“Injury” is broadly defined in s 32(3) of the Act. An insured worker’s entitlement to damages is determined in accordance with ss 237, 244 and 245 of the Act. WorkCover has granted compliance in the terms referred to in paragraph (10) above and in a facsimile dated 20 June 2011 to the applicant’s lawyers, stated “… any proven damages flowing from the incident on 27 June 2008 are shielded from the limitation defence, regardless of the manner in which the claim is presently particularised”.
Medical and claim processing evidence
- [18]I was asked by counsel to consider the evidence in determining the application because I would otherwise have an incomplete understanding of the issues. I agree that it is necessary to do so in this case. Both Mr Crow SC and Mr O'Sullivan referred to and relied on a series of medical reports to support their opposing contentions.
- [19]The applicant has deposed that she had swollen, sore and inflamed hands at the end of the day when the incident occurred. On the following day she attended at the ambulance station at Middlemount and then went to the Dysart Hospital where pain and swelling were detected bilaterally. When she was at the hospital her rings were cut off her fingers because of excessive swelling.
- [20]I have previously referred to the medical certificates issued by Dr Begg. On the 30 June 2008 attendance by the applicant he had recorded in the Certificate “bilateral hand injuries”; and on the attendance by the applicant on 09 July 2008 he had recorded in the Certificate “pain, swelling, colour changes”.
- [21]The appellant next attended on Dr Naicker on 23 October 2008. The clinical notes record “L & R hand pain, R hand swelling” and in a report of 04 December 2008, Dr Naicker reported “L & R hand pain, R hand swelling caused by ‘post-bleach response’”. He issued a certificate on that date.
- [22]In a WorkCover Communications Report dated 30 December 2008, the applicant provided further information to WorkCover, reporting that “after clearance issued hands were able to be used, was only losing skin and swollen slightly and then slowly became worse, noticed 6, 5 and 8 weeks ago a lot more swelling and a lot more pain”. In a further WorkCover Communications Report dated 13 January 2009 - between the employer and the applicant - her condition is reported as “Hands had never healed completely. Hands still swollen. Hands became progressively worse. Claim accepted.”
- [23]In the report of Dr De Silva, Specialist Physician, dated 19 January 2009, the following opinion was expressed:
“Clearly this symptom appears to be following exposure to costic-soda and I am wondering whether it could be a condition such as sympathetic nerve distrophy as a result of exposure to costic-soda and changing of work habits and the functions of the hand … and whether these signs are ongoing to be longstanding or not I would not be the best person to answer this, as I would not see myself as an expert in sympathetic nerve dystrophy”: (I have retained the obvious mis-spelling, perhaps made by the doctor’s staff, in citing those passages from the report).
- [24]Dr Naicker gave a further Certificate on 29 January, 2009 diagnosing “(L) & (R) hand swelling and pain”. On the same date Dr Naicker also signed a WorkCover Certificate which expressed a diagnosis of neuropathy following chemical exposure and reported “there is a positive correlation of signs and symptoms following exposure to chemicals at work”.
- [25]Dr Cameron, Consultant Neurologist, in a report dated 7 March 2009 wrote:
“I suspect her present symptoms are largely, if not totally, due to disuse and the accompanying reactions rather than any previous injury … I would strongly advise that since her claim has apparently been accepted, that she should have an intensive program of right hand physiotherapy to get her using the hand back to normality. I believe her present right hand discomfort is solely due to voluntary issues.”
- [26]Dr Cameron had observed that the claim was “rather unusual” and whilst he thought that the applicant had suffered a dermatological reaction in both forearms and hands in the course of her kitchen duty, he said that there was no evidence that any of the washing mixture entered the elbow length gloves to irritate her hands or forearms. He thought that she may have developed a heat rash and perhaps some localised skin infection because she was wearing gloves, rather than being due to any alleged chemical burn caused by the washing mixture. There were no dermatological symptoms at the time of his examination. He thought that the symptoms were “largely, if not totally, due to disuse and the accompanying reactions rather than any previous injury”. Nerve conduction and ultrasound studies were normal.
- [27]Dr Turner, Occupational Physician, in a report dated 28 May 2009 wrote that the applicant “had a significant bleach injury to her hands, but this had now resolved”. The ongoing symptoms were “musculoskeletal, not skin related” and she could see “no connection between the bleach injury and the current symptoms”.
- [28]Dr Noakes, Consultant Dermatologist, in a report dated 07 September 2009 wrote:
“My provisional diagnosis is reflex sympathetic dystrophy or complex regional pain syndrome type 1. This is a well-recognised entity characterised by persisting pain, oedema and vascular instability following a minor injury. The cause is not known but is assumed to be due to disturbances in sympathetic tone. It eventually leads to permanent flexion contractures and diffuse atrophy of bony and soft tissues.”
- [29]Dr McCormack, (trainee Registrar in Rheumatology at Townsville Hospital) in a report dated 30 November 2009 wrote that the diagnosis was RSD type 1 and that:
“… temporarily it is related to her work injury and in my opinion it would be almost impossible to say that this did not cause it.”
- [30]Dr Ferguson, External Medical Officer, in a report dated 23 February 2010 said she discussed this “complex case” with Townsville General Hospital Consultant Rheumatologist Dr L Roberts “who also saw Christine at the Townville outpatient’s appointment’ and who advised her ‘that he believed that her symptoms of RSD were related to a disuse process and that it was ‘way too early for Permanent Impairment assessment as she had not undergone an appropriate treatment programme for RSD’.” That is, the injury was not yet stationary and stable.
- [31]Dr Roberts in a further report dated 30 June 2010, wrote:
“When she was seen here on the 30 November 2009 it was noted that the injury, she felt occurred following washing dishes in bleach wearing gloves and she developed a skin rash a few hours after that. A few days following this she started to develop symptoms in her hand which subsequently appeared to have been the onset of her reflex sympathetic dystrophy.
Given all these facts are true, on the balance of probability the injury caused the reflex sympathetic dystrophy in that it is highly unlikely she would have developed reflex sympathetic dystrophy had there been no injury.
I hope this provides sufficient clarity..”
Case Authority
- [32]The applicant seeks two declarations. The court can grant declaratory relief in matters such as this.
- [33]In Lau v WorkCover Queensland [2002] QCA 244, the appellant completed a notice of claim for damages, using WorkCover’s form, foreshadowing her intention to litigate a claim against her employer for damages for the injuries allegedly sustained by her in a fall. Byrne J referred to the form in the following terms at [21]:
“The form demands a deal of information, including, by question 56, a ‘specific list’ of ‘all injuries’ and, by the next question, identification of every ‘part of the body injured’. The appellant mentioned deep cuts to the ring finger of the left hand, lacerations to the palm and base of the thumb of the left hand, sprain and numbness in the lower back and, as the least severe of her injuries, pain in the back and right shoulder.”
- [34]The claimant sought a declaration that her notice of claim for damages had been given in accordance with s 280 of the Act in order to overcome the application of the limitation period. She had disclaimed any intention of seeking damages for right shoulder pain. In the proceedings in which the declaration was sought the issue was whether the mention of shoulder pain, no longer a matter being pursued, in the WorkCover form led to the result that her notice was not a “complying notice of claim” within s 308(1)(a)(i) in respect of the other injuries alleged in the notice to have been sustained in the fall. The declaration was refused and this Court of Appeal and the Court of Appeal judgment dealt with an appeal against that refusal.
- [35]His Honour said at [35] that:
“It is not surprising that the appellant referred to her shoulder pain even though no injury to which the condition might be related had then been assessed. WorkCover, however, maintains that mentioning that pain in response to questions 56 and 57 not only means that a notice was not given in accordance with s. 280 but also precludes the litigation of a claim for damages for the rest of her – all assessed – injuries. The primary judge accepted, and the appellant challenges, the correctness of both propositions.”
- [36]His Honour posed the question for determination on the appeal in these terms: Is the disclosure obligation confined to “assessed injuries”?
- [37]His Honour determined that the interpretation sought favoured by WorkCover was not necessary to implement the legislative intention in the statutory scheme: that is, that WorkCover must be satisfied that the Notice of Claim complies with s 280 in order to be a “complying notice of claim”. The expression “a complying notice of claim” was referable to a document that “complies with s 280 “rather than to WorkCover’s state of mind”. His Honour wrote that such a construction of s 282(2)(a) would “accord with the regime s 282 establishes. Where WorkCover notifies it is a satisfaction that s 280 has been complied with, it will be held to that determination. If not so satisfied, WorkCover is to identify “the non-compliance” and chose whether to waive the non-compliance, and if not, ss 282(2)(c) and (3) state the consequences”. Section 282(4) would also thereby be capable of practical application. The court granted the declaration that was sought. The issue whether injury is described are the “same injuries” was dealt with in Bell v Australia Meat Holdings P/L [2003] QCA 209. The issue was whether the injury described in the notice of claim was the same injury as that referred to in the notice of assessment made by the appellant employer. The employer had indicated in correspondence that it was not satisfied that the notice of claim complied with s 280 of the Act because, it said, “your client states that he has a multi-level disc injury to his lower back. Your client’s claim is limited to a “mild aggravation of pre-existing degenerative disease in the lumbo-sacral spine”. The primary judge had determined the issue by concluding that the injury the subject of the notice of claim was a quite different injury from that referred to in the notice of assessment. However, he also concluded that the notice of claim complied with s 280 notwithstanding that finding. On appeal the court considered that the injury described in the notice of claim was the same injury as that which had been assessed and notified in the notice of assessment.
- [38]Davies JA wrote the following:
“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, accept that an even advance 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%. 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 in an apparently more serious way than the appellant.
Once it is seen, as I think is, that the injury referred to in the two notices are the same injury, the question and issue between the parties in my opinion resolves. That is because, 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.”
- [39]In Dixon v Australian Meat Holdings Pty Ltd [2003] QSC 267 Dutney J dealt with issues concerning a conditional damages certificate and a notice of assessment. His Honour dealt with the issues in the following way:
“[15] In Craig v BHP Coal Pty Ltd (S 160 of 1999 – unreported – 19/10/2000) I expressed some views on the requirements of a conditional damages certificate. In particular I considered that it was unnecessary for it to particularise the injuries suffered as long as the event giving rise to the injury or some other indication of the matter to which it related was apparent. The purpose of the certificate is to enable the worker to commence proceedings urgently without prejudicing WorkCover’s right to later reject the claim if not ultimately satisfied it is a claim for which damages are available under the Act. I am not aware of any authority which would cause me to alter that view.
[16] There is nothing in the WorkCover Queensland Act 1966 to which I have been referred which gives any particular significance to the claim number ascribed by WorkCover to a claim. The injury suffered by Ms Dixon was a repetitive shoulder strain injury. It manifested itself in periodic symptoms for which separate claims were made. As the symptoms subsided Ms Dixon returned to work. On the material before me, however, there is nothing to suggest that there was ever more than one injury. The injury referred to in the conditional damages certificate issued on 27 January 2000 was the same injury as that for which proceedings were issued the next day. It is then and not later that in my view the validity of the proceedings must be judged. As at 28 January 2000 there was a conditional damages certificate for an over period of time injury from 1 February 1997. The injury was identifiable from the claim number on the certificate as being a repetitive right shoulder strain. This corresponds exactly with the proceedings. That it was not limited to the claim lodged in 1996 is equally clear from the covering letter.
[17] The effort of WorkCover to replace the certificate with a number of certificates is in my view nothing more than an administrative convenience. I consider the comments I made recently in Trathen v Consolidated Meat Group (s. 248 of 2003 – unreported – 20 June 2003) in which I followed the decision of Holmes J in Watters v WorkCover Queensland [2001] QSC 331 are equally applicable here even though those cases concerned a notice of assessment and a notice of claim rather than a conditional damages certificate and a statement of claim. It is comforting to know that the Court of Appeal reached exactly the same conclusion in Bell v Australian Meat Holdings [2003] QCA 209. The conditional damages certificate under s 262 of the Act applies to the “injury”. There is only one injury in relation to which a claim had been made and to which a conditional damages certificate could refer. It seems to me to make no difference that it is referred to by reference to the number of one of several claims made in relation to it rather than in descriptive terms.
[18] I do not consider s. 34 of the WorkCover Queensland Act 1996 assists AMH. It was submitted that each claim was a separate “injury” within that definition because it was an aggravation of an earlier injury and thus required a separate conditional damages certificate. The short answer is that a progressive condition is not necessarily to be treated as an aggravation and hence a fresh “injury” each time there is one of a series and intimate and symptomatic episodes.”
- [40]In Watters v WorkCover Queensland [2001] QSC 331, Holmes J (as Her Honour then was) determined the issue of compliance with s 280 of the Act.
- [41]The relevant circumstances were described in the following terms:
“[6] On 19 July 2000 the respondent issued a notice of assessment describing the injury as ‘strain lower back’. It seems that, having received that notice of assessment, the applicant’s solicitors raised the injury description with the respondent. They were advised by a telephone call from one of the respondents’ officers that the notice of assessment would be amended to ‘back injury’, so that the issue of whether there was a disc prolapse or merely a strain could be resolved at trial. An amended notice of assessment was forwarded, describing the injury as ‘lower back’. It was changed once more, to include provision for the applicant to indicate her agreement (or otherwise) with the degree of permanent impairment assessed. The amended notice of assessment continued, however, to identify the relevant PI code as 4114.
[7] On about 8 March 2001, the applicant provided her notice of claim for damages to WorkCover. In it, she gave particulars of her injury as ‘disc prolapse’ to the lower back. The respondent advised by letter from its solicitors of 23 March 2001 that it was not satisfied that the notice of claim was compliant with s. 280, because it particularised injury as disc prolapse, when the assessed injury was ‘lower backache under injury code 4114’. After being advised of the agreed change of description to ‘lower back’, the solicitors for the respondent replied noting that Dr Guazzo had assessed injury under code 4114, and that was the code which continued to apply on the notice of assessment.”
- [42]Her Honour resolved the issue in the following terms:
“[17] The mere fact that Dr Guazzo could not find a directly apposite code number in the schedule does not alter the nature of the injury which he assessed. The respondent appears to have adopted as conclusive the code number to which he alluded as best describing the symptoms (rather than their cause). I do not think this is warranted by an examination of the options open on the schedule or the language used by Dr Guazzo. Nor is it to the point that the notice of assessment then referred to that item number. As Mr Hoare pointed out during argument, it is the medical practitioner’s assessment which is relevant under s. 197, not the view of a WorkCover officer who formally gives the result of an assessment.
[18] It follows that I consider that the applicant’s injury for which she was assessed was that of ‘disc prolapse’ in the lower back, and that the notice of claim for damages complies with s 280. The applicant is entitled to a declaration in those terms.”
- [43]In Gorry v Australia Meat Holdings Pty Ltd [2007] QSC 161, the defendant had given a notice of assessment in relation to an injury described as “aggravation of rotator cuff degeneration–right shoulder–nil aggravation of degeneration in the AC joint–right shoulder–nil”, showing the date of injury to be 14 May 2002. Subsequently the defendant informed the plaintiff that the date of the event and the notice of assessment should have stated “over a period of time from 14 May 2002.” The plaintiff subsequently submitted a notice of claim which referred to the event said to have caused the injuries as being “over a period of time, namely 12 February 2002 to 14 May 2002.” The respondent took the view that the notice of claim described a different injury because a different event was said to have given rise to it.
- [44]Cullinane J resolved the issue in the following terms. He had no doubt that the injuries were the same. It was the event which gave rise to the injuries which was the issue for his determination. His Honour wrote the following:
“[30] The issue it seems to me is whether the defendant and the discharge of the obligation imposed upon it by s 273A can issue an assessment in which it nominates a different event as having given rise to the injuries to that nominated by the plaintiff in the notice of claim. Failure to obtain a notice of assessment is fatal to a plaintiff’s claim for damages and if a notice of assessment is given for an injury said to be the result of a different event to that nominated by the plaintiff then this will prevent the plaintiff pursuing a cause of action in respect of the injury.
…
[32] The view which I take is that the obligation imposed upon the defendant when it considers the matters referred to in subsection 1(a) of s 273A for the purposes of the notice of assessment provided for in 273A(1)(b) requires the defendant to address the injury the subject of the claim and this necessarily involves the event said to give rise to the injury. A notice of assessment directed to that injury sustained in the event is to be given.”
- [45]His Honour concluded that the failure of the defendant to do that in this case constituted non-compliance which enlivened the court’s jurisdiction under s 291.
- [46]I was referred to Stewart v Fehlberg & Anor [2008] QSC 292 in respect of a situation where an injured person was required to resubmit a WorkCover claim or where the worker suffers from the onset of new symptoms of injury.
- [47]Similarly, Mr Crow SC referred to a passage in Luntz on Damages (4th edition), concerning the development of a post injury condition and the causal connection with the original injury. Such matters are referred to in Adelaide Chemical & Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 and Mitchell v Clancy [1960] Qd R 62. The thrust of those cases are, in simple terms, that the subsequent development of a condition was not a new injury but rather a not unexpected consequence of the original injury. Whilst I accept that those cases dealt with common law claims for injuries, the approach of the courts in making that determination is, to some extent, a relevant consideration - by way of analogy to the considerations which need to be applied to the situation in this application and the statutory regime in which the applicant’s claim is made.
Discussion
- [48]The RSD condition is not a ‘separate injury’ or, expressed in another way, a ‘different and unassessed injury’. It is, on the medical evidence, causally connected to the injuries described by Dr Begg. It is, for want of a better description, a secondary consequence of the injury described in the Notice of Assessment.
- [49]Much of the debate between the lawyers for the applicant and the respondent turned on a construction of the words used to describe the injuries in the first instance.
- [50]The original description of the injury was focused on the hands, with pain and swelling becoming progressively worse.
- [51]Dr De Silva, whilst qualifying his opinion in terms of medical speciality, contemplated an RSD condition; Dr Naicker made a provisional diagnosis of RSD and supported this as a “well-recognised injury”, impliedly in the context of the applicant’s symptoms; Dr McCormack connected her condition with the work injury; Dr Roberts considered, in effect, that the diagnosis was RSD and that the symptoms were related to a “disuse process” that appeared to have been “the onset of her RSD”. Hence he makes the connection between the RSD and the original injury.
- [52]Dr Cameron made no causal connection. However, he thought the applicant’s claim was “rather unusual” and “largely, if not totally, due to disuse”. Dr Turner considered the symptoms were “musculoskeletal, not skin related”.
- [53]I do not consider that Dr Cameron and Dr Turner support the respondent’s case on the issue that I am asked to resolve. Dr Roberts refers to “disuse” as the onset or catalyst for the development of the RSD condition. Dr Turner’s opinion may broadly include an RSD condition
- [54]Hence the overwhelming thrust of the medical evidence is, in my view, supportive of a causal connection between the diagnosis of RSD and the original injury rather than the two being separate injuries..
- [55]The case authorities also support the applicant’s contentions. The early descriptions focused on the observable and physical characteristics of the original injury. That is perfectly understandable. Serious injuries do not tend to resolve quickly and in many cases there is a progressive development of associated symptoms. Hence, with the passage of time, the physiological changes and the altered physical use of an injured or compromised limb, will present symptoms that generate a modified description that reflects the later and most identifiable symptom.
- [56]It is that progression of symptomology that I consider has occurred here. It is an injury that has manifested itself in a progressive and developmental way and in a continuum. There is no indicia of one or more separate injuries. The case authorities support my view of the circumstances of this case.
- [57]I consider that the debate in this case has largely been fueled by the administrative system implemented by WorkCover. It is no longer a requirement, it seems, for a claimant to record in writing the description of an injury. A claimant can, for example, orally describe an injury for an officer in WorkCover to record. The latter record - for example, inter alia, see “Appendix A” - seems then to be regarded as the definitive description of the injury. There undoubtedly is a margin for error in comprehension or recording by the WorkCover officer, so much simply being the consequence of human nature: for example, the claimant’s ability to articulate symptoms; and the concentration on the task and the time given to record the information by the WorkCover officer.
- [58]Of course, as I have already observed, there is probably only one written record: that is, that created by WorkCover. Hence in a dispute about a particular oral communication, a claimant may be at a disadvantage.
- [59]These observations should not necessarily be construed as a criticism of the administrative system. However, they are a ‘critique’ and the consequence it seems to me should be a less literal and more expansive or conciliatory construction of information provided by a claimant who uses what has been described by Counsel as the “paperless administrative system” implemented by WorkCover.
- [60]It is axiomatic in my view that this administrative system has been implemented because potentially it is economically and administratively beneficial for WorkCover’s operations. That is not to say that it does not confer benefits to claimants, but the emphasis, as a matter of common sense – exercised in the commercial context – would be on the former rather than the latter.
- [61]In this case it is likely that the administrative system has affected the construction of the description of the original injury to some extent. However, my review of the medical evidence in the context of the case authorities has persuaded me in any event that the RSD is not a separate injury and is a symptom of the continuing impact of the injury as originally described.
- [62]Counsel assured me that there was no case authority dealing with the administrative system and whilst this judgment has been reserved and in preparation I have not received any advice to the contrary.
Conclusion
- [63]The applicant should succeed in the application. I will make the declarations sought by her.
Orders
1 Application granted.
2 A Declaration that the applicant’s Notice of Claim for Damages dated 23 March 2010 is a complying Notice of Claim within the meaning of s 302 of the Workers’ Compensation and Rehabilitation Act 2003.
3 A Declaration that the applicant is entitled to pursue damages at common law for injuries listed in item 41 of the notice of Claim for damages described as burns to the left-hand, soft-tissue injuries and complex regional pain syndrome – reflex sympathetic dystrophy of her right upper limb.
4 Costs reserved subject to further submissions on 7 days notice to the other party.
ANNEXURE A
![Barraclough v WorkCover Queensland [2012] QDC 321](/judgmentview/image?name=318975.001.jpg&id=318975)