May v Workcover Queensland[2008] QSC 43

SUPREME COURT OF QUEENSLAND

Philippides J:

[1] The applicant, Michael James May, seeks an order pursuant to s 287 of the Workers’ Compensation and Rehabilitation Act 2003 that the respondent, WorkCover Queensland, refer the applicant’s claim for a psychological injury, suffered on 5 February 2004, to the General Medical Assessment Tribunal – Psychiatric (GMATP) for assessment.

[2] The applicant alleges that he sustained head injuries in the course of his employment as a sand dredge operator on two separate occasions.  On the first occasion, on 5 February 2004, the applicant slipped as he was getting off the dredge, thereby hitting his head.  The second incident occurred on 12 February 2004 when the dredge began to take water, causing the applicant to slip and hit his head again.  The applicant lodged an application for compensation on 20 February 2004 in respect of the two head injuries. 

[3] On 5 May 2004, the respondent notified the applicant that his claim for workers’ compensation for “dizziness and vertigo” sustained on 5 February 2004 had been accepted and it was designated a claim number of SO3BC217117.   On 7 May 2004 the respondent accepted the claim for the injury on 12 February 2004 for “concussion and toe injury”, and it was allocated a number of SO3BC202114. 

[4] The respondent’s file notes of 4 June 2004 indicate that because of conflicting medical opinions as to the ongoing effects of the head injury of 12 February 2004, a reference to the General Medical Assessment Tribunal – Neurology (GMATN) was made.  On 16 June 2004 the respondent wrote to the applicant in respect of Claim SO3BC202114, advising that it was being referred for assessment of ongoing incapacity. The respondent sought and received a further statement from the applicant dated 23 June 2004. 

[5] On 25 June 2004, pursuant to s 502(3) of the Act, the respondent referred the applicant to the GMATN, noting that the applicant had applied for compensation on 20 February 2004 “in respect of a condition certified as ‘concussion’ which he attributed to an incident on 12 February 2004 while employed as a sand dredge operator” and specified that the referral was in respect of “concussion (head injury), traumatic vestibulopathy, dizziness”.  For the purposes of the referral, the respondent sought medical reports from a number of specialists, including neurologists, Drs O'Sullivan and Appleton.  The assessment took place on 12 August 2004. The claim material from both incidents was made available to the GMATN, which determined that, while the applicant had suffered minor head injuries, he had recovered without any residual organic brain damage.  By letter dated 13 August 2004, the applicant was informed by the respondent of the decision by the GMATN that the applicant was no longer incapacitated.

[6] Also by means of the letter dated 13 August 2004, the respondent informed the applicant that a decision had not yet been made with regard to the applicant’s “psychiatric/psychological condition”.  It appears that on 28 June 2004 a Workers’ Compensation Medical Certificate was issued by Dr Stoltz for “head injury and Post Traumatic Stress Disorder”.  The certificate issued by Dr Stoltz triggered a referral on 12 August 2004 to the GMATP, as is apparent from the referral form.  The referral form stated that the referral was in respect of Claim 5O3BC202114 and nominated the date of injury as 12 February 2004.  (The certificate issued by Dr Stoltz stated that the applicant was first seen for that injury on 12 February 2004).  The referral was made pursuant to s 501(2) of the Act on the basis that “the application for compensation for the psychiatric/psychological injury has not been accepted to the present date.”  The injury not being admitted, a determination was sought as to whether the matters alleged in the application for compensation constituted an injury.

[7] The GMATP had before it a range of material, including reports from Drs Stoltz, Cook and Kar and a psychologist Ms Cochrane.  On 15 September 2004, it concluded that the applicant’s symptoms were unrelated to either of the two episodes of minor head injury of 5 and 12 February 2004 and determined that the matters alleged in the application for compensation did not constitute a psychiatric injury.  A copy of its decision was sent to the applicant under cover of a letter dated 17 September 2004.

[8] By a letter dated 20 September 2004, the respondent wrote to the applicant about the “application for compensation dated 28 June 2004” and advised that on 15 September 2004 the applicant had been assessed by the GMATP as not having sustained an injury and that accordingly the application for compensation was rejected.  The applicant was advised that the decision of the GMATP was final, except in limited circumstances where fresh evidence was presented within 12 months. The letter identified the relevant claim as SO3BC202114. 

[9] Under cover of letter dated 21 September 2004, the respondent released the applicant’s file for Claim SO3BC202114 to the applicant’s then solicitors.

[10] Thereafter, a separate referral was made pursuant to s 505 of the Act to the GMATN on 9 November 2005 for assessment of any permanent impairment in respect of the applicant’s claim for compensation for “dizziness and vertigo” attributed to the incident on 5 February 2004 (Claim SO3BC217117).  It was noted that the applicant already had a separate claim for “concussion” sustained on 12 February 2004 and the material relating to Claim SO3BC202114 was made available for reference purposes.  On 29 November 2005, the GMATN determined that no permanent impairment had arisen in respect of that injury.

[11] To date, the applicant has received Notices of Assessment of 8 September 2005 in relation to the injury of 12 February 2004 (with an injury description of “concussion”) and 13 December 2005 in relation to the 5 February 2004 injury (with an injury description of “dizziness and vertigo”). 

[12] The applicant wishes to pursue a claim for psychiatric injury which he alleges was suffered on 5 February 2004 and has obtained a report from Dr Byth, psychiatrist, to the effect that he has suffered a psychiatric injury as a consequence of the events of 5 February 2004.  By Notice of Claim dated 3 January 2007, the applicant sought damages for a psychiatric/psychological injury suffered on 5 February 2004. 

[13] By a letter dated 23 January 2007, the respondent advised that the GMATP had already determined that the applicant had suffered no psychiatric/psychological injury.  It noted that the reference, being in respect of “psychiatric/psychological injury”, was made as a result of the medical certificate for “post-traumatic stress disorder” issued on 28 June 2004, and that the GMATP had available to it at its hearing on 15 September 2004 medical reports and information regarding both the February 2004 events, but had determined that “the matters alleged in the application for compensation did not constitute an injury to the worker”.  The letter stated:

“Your client has no entitlement to seek damages for a psychiatric or psychological injury as any injury arising out of the work events that occurred on or about 5 February 2004 was considered and rejected by the General Medical Assessment Tribunal – Psychiatric on 15 September 2004.  Pursuant to s 512 of the Workers Compensation and Rehabilitation Act 2003 the Tribunal’s decision is final and was made more than 12 months ago.”

[14] In pursuing the present application, the applicant contended that the respondent has failed to refer the claim for psychiatric injury alleged to have arisen from the 5 February 2004 incident (Claim No SO3BC217117) to the GMATP and that such determination as was made by that Tribunal is a nullity, because on the occasion when that Tribunal considered the matter, the matter of any psychiatric injury arising from the 5 February 2004 events was not the subject of a referral to it.  Relying on the decision in Australia Meat Holdings Pty Ltd v Douglas [2005] QSC 145, per Mullins J at [27], it was submitted that the Tribunal’s jurisdiction could only be enlivened upon a referral to it of a particular matter in accordance with the Act.  The applicant contended that the only referral to the Tribunal was in relation to any psychiatric injury for the injury of 12 February 2004 and that there was never a referral in relation to any such injury arising from the earlier incident.  Additionally, it was contended that the Tribunal’s decision was made without the applicant being informed or being able to make submissions as to the matter as he was entitled to do.  It was submitted that, as a result of the correspondence between the respondent and the applicant, the applicant was under the apprehension that the GMATP hearing was to be confined to the assessment of any psychiatric injury arising from the 12 February 2004 incident. 

[15] The respondent argued that, while two statutory files were created with two claim numbers for the two incidents, all the claims were managed on the file relating to the second incident and it was for that reason that the claim number for the second incident was used in the correspondence between the parties and with the various doctors, and the referral to the GMATP identified the relevant claim as being in respect of Claim SO3BC217117.  Furthermore, no payments were made under the file relating to the first incident; the $22,369.86 paid was paid out under the file relating to the second incident. Nevertheless, it is apparent that the claims arising from 5 February and 12 February 2004 incidents were treated as separate claims, allocated separate claim numbers and were the subject of two separate referrals to the GMATN. 

[16] I note the respondent’s submission that the reference to the GMATP was as to whether the applicant had suffered a “psychiatric injury” as a result of a fall at work. It is apparent that the respondent was seeking to refer to the Tribunal for its consideration the injury the subject of the certificate issued by Dr Stoltz.  That certificate suggested that the injury was sustained on 12 February 2004 and it seems that the identification of the date of the injury was made accordingly. 

[17] The insurer file summary provided to the Tribunal identified the reason for referral as being the determination of whether the applicant was suffering “from psychiatric/psychological condition related to the incident on 12 February 2004”.  As the applicant pointed out, in seeking reports from Drs Stoltz, Cooke and Kar for the purposes of the assessment by the Tribunal, the respondent specifically sought their opinion as to whether the applicant was suffering any psychiatric or psychological condition that was related to the 12 February 2004 incident.  The GMATP also had available to it the complete claim file in respect of both claims (including various medical reports which outlined the history of the two head injuries and the applicant’s statements outlining the two incidents) and was clearly aware that the applicant had lodged claims for two head injuries suffered on two discrete occasions.   I also note that a number of the reports commented on the inter-relationship between the two February 2004 incidents.

[18] The respondent contended that the applicant was advised of the decision of the Tribunal and was provided with a copy of its findings.  It pointed out that the applicant had known since September 2004 that the GNATP had determined that the applicant’s symptoms were unrelated to the two episodes of minor head injuries suffered by him and that it was within its province to make that determination.  It noted that the applicant chose not to submit additional material to the GNATP pursuant to s 512 of the Act.  Additionally, it pointed out that its decision was subject to judicial review and an application could have been brought as to the validity of its decision.  It pointed out that subject to judicial review, the decision of the Tribunal as to a medical matter is final and hence binding on a worker: ss 514 and 515. 

[19] The applicant in his further written submissions accepted that a copy of the decision had been forwarded to him on 17 September 2004 and that the WorkCover file was made available to his then solicitors.  There is nothing to suggest that the applicant was precluded from putting before the Tribunal further material in relation to the incident of 5 February 2004 within the 12 month period specified in s 512.  Nor is there any satisfactory explanation provided as to why, given that the applicant had a copy of the relevant referral and the decision, an application for judicial review was not brought on the basis that the decision was made in the absence of jurisdiction or without the applicant being afforded an opportunity to be heard (the matters now raised).  Indeed, in the applicant’s further written submissions it was conceded that an application for such review could have been brought. However, the applicant submitted that he did not do so because the applicant did not consider that the Tribunal had made a decision in regard to the injury of 5 February 2004.  In the further written submissions it was argued that the judicial review process would have required a two step procedure; a judicial review of that Tribunal’s decision and an application against the respondent requiring them to refer the injury for assessment.  It was submitted that, in those circumstances, it was “a more cost effective method” when there was little doubt that there had not been a previous referral to seek the latter remedy only.

[20] The applicant’s submissions proceed on the basis that an assessment of the alleged injury is required, but that the Tribunal’s assessment and decision is a nullity, because, inter alia, it was made without jurisdiction and is therefore of no consequence.  In essence, the applicant is seeking de facto judicial review of the decision.  The applicant seeks, in effect, to circumvent the need to have brought judicial review proceedings by now simply seeking an order for referral, notwithstanding the existence of a determination of the matter by the Tribunal. In my view, such a course is not appropriate.  In those circumstances, the application is dismissed.  I shall hear submissions as to costs.