Apelu v Lusty Tip Trailers Pty Ltd

In this case, Justice Brown considered two points of note. First, her Honour held that the plaintiff was not entitled to claim damages for personal injury arising from either a psychological or psychiatric condition in circumstances where the relevant notice of claim for damages had not specifically referred to the schizophrenia injury and nor had it been mentioned in the application for workers’ compensation. Second, her Honour considered whether a referral to the Medical Assessment Tribunal had been properly made.

Brown J

22 November 2023

The plaintiff had sustained head injuries whilst employed as a boilermaker. In addition, he sought damages for psychiatric injury namely schizophrenia; or alternatively, a chronic aggravation of pre-existing mild schizophrenia; and post-traumatic stress disorder. [5]. The defendant admitted breach of duty but queried the plaintiff’s entitlement to damages arising from either schizophrenia or a chronic aggravation of pre-existing mild schizophrenia. [6].

The plaintiff sought declarations to the effect that he was entitled to pursue damages in the proceeding; or alternatively, that WorkCover Queensland was required to make a decision as to whether the schizophrenia condition was an “injury” under s 239A(4) Workers’ Compensation and Rehabilitation Act 2003. [2], [13]. Specifically, the plaintiff argued that his entitlement to claim damages arose either because the notice of assessment sufficed to cover any psychiatric or psychological injury which had resulted from the event; or on the basis of the principle in Barraclough v WorkCover Queensland [2012] QDC 321 [59], [61] (in which the court endorsed “a less literal and more expansive or conciliatory construction of information provided by claimant who uses what has been described by Counsel as the ‘paperless administrative system’ implemented by WorkCover”, and ultimately found that the plaintiff did not require the notice of assessment to include a reference to a symptom which was, effectively, a continuing impact of the injury for which they did have a notice of assessment). [11].

The defendant claimed that the Medical Assessment Tribunal had determined that the condition of schizophrenia was a non-work-related condition which was a medical matter under s 515 Workers’ Compensation and Rehabilitation Act 2003. [3], [72], [73].

Had the psychiatric injury of either schizophrenia or a chronic aggravation of pre-existing mild schizophrenia been assessed for the purposes of the Act in the claim for damages for personal injuries by the plaintiff against his employer?

In his Notice of Claim, when completing the section headed “particulars of all injuries alleged to have been sustained because of the event”, whilst he particularised “Post-Traumatic Stress Disorder, Depression and Anxiety”, the plaintiff did not cite the schizophrenia injury, nor its aggravation. [39], [72], [78]. At no subsequent stage was the Notice of Claim amended to add a reference to schizophrenia. [49]. In addition, schizophrenia was not identified in the plaintiff’s application for workers’ compensation. [16]. However, some medical reports obtained by WorkCover mentioned it [14] and WorkCover had paid workers’ compensation.

The defendant submitted that even if the plaintiff had included schizophrenia in the Notice of Claim, WorkCover could not have accepted the injury. It added that under s 239A(3) of the Act, it was not equipped to determine whether the schizophrenia was an injury, in circumstances where the Medical Assessment Tribunal had already decided that the plaintiff’s schizophrenia was not work-related. [73]. The plaintiff argued that WorkCover had, indeed, accepted the payment of compensation for a psychiatric injury generally that covered potential differential or additional diagnosis of schizophrenia or psychotic disorder. [74]. It also submitted that not only did the decision of the Medical Assessment Tribunal not constrain WorkCover, but WorkCover was unable to make a referral pursuant to s 501 of the Act since it had accepted the injury. [75].

The defendant argued that it did not follow from the fact Workcover had been benevolently paying statutory benefits, that it accepted schizophrenia as an injury as defined in s 32 of the Act. [81]. Her Honour agreed. [83]–[84].

In addition, after helpfully reviewing the seminal decisions on the assessment of injuries and the construction of s 179 of the Act, her Honour held that the proposition that multiple psychological or psychiatric conditions are treated as a single injury under s 179(4)(b) Workers’ Compensation and Rehabilitation Act 2003, and that the Notice of Assessment stands as an assessment of the psychological or psychiatric injury caused by the event even if a specific psychiatric condition is not referred to the Medical Assessment Tribunal nor assessed in the determination of incapacity and the degree of permanent impairment, is not correct. [109]–[115]. Her Honour noted that it would not align with the intent of the Act if “an assessment of one psychological or psychiatric condition said to be [the] result of an event was sufficient under s 179 of the [Act], and a lump sum payment was determined on that basis without an assessment of the full extent of the psychiatric or psychological injuries identified as having been suffered”. [113]. In the current matter, it was plain that the Notice of Assessment only related to an assessment of post-traumatic stress disorder. [115].

It followed that the Notice of Assessment did not encompass the schizophrenia injury as it had not been assessed.

Secondary Injury

Citing Barraclough v WorkCover Queensland [2012] QDC 321, the plaintiff argued in the alternative that he was entitled to pursue a claim of damages for schizophrenia on the basis that “the subsequent development of a condition from an injury is not a new injury but the consequence of the original injury”, which does not need separate assessment. [118]. The plaintiff relied upon an opinion provided by a psychiatrist which suggested that in his case there was a causal link between the trauma of the accident and the onset of schizophrenia. [120].

Her Honour did not accept that schizophrenia was covered as a secondary injury from an injury which had been assessed. She stated:

“The present case is different insofar as that while Professor McFarlane opined that schizophrenia may have developed as a result of PTSD, that is not supported by other psychiatric opinions or the MAT. The MAT in its reasoning clearly treated schizophrenia as a discrete and separate condition from PTSD”. [124].

The referral to the Medical Assessment Tribunal

The plaintiff also submitted that the tribunal’s decision had no application, since the referral of the question of whether schizophrenia was an injury had not occurred under s 500 of the Act. [131]. It was indeed the case that the only referral was made under ss 501(1)(e) and 505 of the Act. The result was that the tribunal’s opinion was not a decision as to a medical matter as per s 515 of the Act. Her Honour noted that in Muckermann v Skilled Group Limited [2013] 2 Qd R 47, [24], North J clarified that such a determination in relation to schizophrenia would be required to be the subject of a separate referral under both s 500(1)(a) and s 501. [132]. Nonetheless, that did not render the tribunal’s determination ineffectual and nor did it preclude WorkCover from accepting the schizophrenia injury under s 239A. It simply meant that the tribunal was not entitled to assess whether the injury was work-related. [133].

Relief available to the plaintiff

Notwithstanding the fact that it was not the case that the Notice of Claim clearly raised schizophrenia (or its aggravation) as an injury warranting consideration by WorkCover, the plaintiff was not without a remedy. Her Honour noted that the plaintiff could have recourse under s 540(1)(c)(ii) of the Act to apply to the regulator for review in respect of a failure by WorkCover to make a decision “for s 239A(4) within the time stated in section 239A(5)”. Under s 542(2), the plaintiff could seek an extension of time within which to make that application.

Disposition

The plaintiff’s application was dismissed.

A Jarro