Apelu v Lusty Tip Trailers Pty Ltd [2023] QSC 262

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - CLAIMS FOR COMPENSATION - CONTENT OF CLAIM - where the plaintiff claims damages for personal injuries suffered in the course of employment - where the claim for personal injuries suffered include a psychiatric injury diagnosed as schizophrenia or alternatively a chronic aggravation of pre-existing mild schizophrenia and post-traumatic stress disorder - where notice of assessment referred to post-traumatic only -where notice of claim did not refer to schizophrenia or alternatively a chronic aggravation of pre-existing mild schizophrenia - where the defendant admits breach of duty but denies that the plaintiff is entitled to damages in respect of schizophrenia or a chronic aggravation of pre-existing mild schizophrenia - where the plaintiff seeks a declaration that he is entitled to pursue damages for a psychiatric injury, including the injury of schizophrenia - whether such a declaration should be made

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - CLAIMS FOR COMPENSATION - GENERALLY - where the plaintiff contends that WorkCover Queensland has not made a decision to accept or reject schizophrenia as a separate injury - whether WorkCover is obliged to make such decision

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - CLAIMS FOR COMPENSATION - DETERMINATION OF CLAIMS - JURISDICTION OF COURTS, TRIBUNALS, COMMISSIONS AND BOARDS - where the plaintiff's injury was referred to the Medical Assessment Tribunal (MAT) - where the MAT did not consider the plaintiff's schizophrenia to be work-related - where no referral was made to the MAT to consider whether schizophrenia constituted an injury to the plaintiff - whether the MAT's decision was a decision on a medical matter referred to the tribunal

Acts Interpretation Act 1954 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Workers' Compensation and Rehabilitation Act 2003 (Qld)

Andersen v Aged Care Employers Self Insurance [2011] QSC 101

Barraclough v WorkCover Queensland [2012] QDC 321

Bell v Australia Meat Holdings Pty Ltd [2003] QCA 209

Connor v Queensland Rail Ltd [2016] QSC 270

Costello v Queensland Rail [2014] QSC 83; [2015] 2 Qd R 296

Ley v Woolworths Limited [2013] QSC 59

Muckermann v Skilled Group Limited [2013] 2 Qd R 47

Royalene Pty Ltd v Registrar of Titles [2007] QSC 059

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480

• [1] The question for determination by the Court is whether the defendant cannot raise as part of its defence to the plaintiff's claim that the plaintiff is precluded from seeking damages in relation to a psychiatric condition in respect of schizophrenia on the basis that the defence is contrary to law.
• [2] Declarations are sought by the plaintiff that:

(a) he is entitled to pursue damages for a psychiatric injury, including the injury of schizophrenia, in the proceeding; or

(b) alternatively, WorkCover Queensland (WorkCover) is required to make a decision as to whether the schizophrenia condition is an "injury" under the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCRA).

• [3] According to the defendant, the Medical Assessment Tribunal (MAT) determined that the condition of schizophrenia was a non-work-related condition which was a medical matter within the meaning of s 515 of the WCRA.

• [4] The plaintiff was employed as a boilermaker by the defendant, a trailer manufacturer. On 18 January 2018, while assembling a bowl tipper trailer, the plaintiff was struck in the back of the head by a lifting lug attached to a come-along chain, which is alleged to have rendered him unconscious.
• [5] The plaintiff claims damages for personal injuries suffered as a result of that incident, namely a head injury with associated headaches and scarring and a cervical spine injury. The plaintiff also seeks damages for a psychiatric injury which has been diagnosed as:

(a) schizophrenia; or

(b) alternatively, a chronic aggravation of pre-existing mild schizophrenia; and

(c) post-traumatic stress disorder (PTSD).

• [6] The defendant admits breach of duty but denies that the plaintiff is entitled to damages in respect of schizophrenia or a chronic aggravation of pre-existing mild schizophrenia. It is this matter which raises the question for the Court in this application, namely whether the plaintiff can claim such damages for that psychiatric condition.
• [7] In paragraph 9(c)(iv) of its further amended defence (FAD), the defendant pleads that:

(iv) The Plaintiff has not no entitlement to seek damages against the Defendant in respect of any schizophrenia injury as:

1. The Plaintiff is a worker for the purposes of the WCRA;

2. The Defendant is an employer for the purposes of the WCRA;

3. The Plaintiff's claim against the Defendant is governed by the WCRA;

4. The Plaintiff has not complied with parts 5 and 6 of Chapter 5 of the WCRA in relation to the claim in respect of schizophrenia, alternatively chronic aggravation of pre-existing Schizophrenia;

5. On 26 June 2019, the General Medical Assessment Tribunal - Psychiatric constituted under the WCRA determined the Plaintiff's schizophrenic illness is not work related;

6. WorkCover has not decided the Plaintiff's schizophrenic illness is an injury as defined in section 32 of the WCRA;

7. WorkCover has not issued a Notice of Assessment to the Plaintiff, pursuant to section 185 of the WCRA in respect of the Plaintiff's schizophrenic illness;

8. In those circumstances, by reason of section 239A of the WCRA, the Plaintiff is not entitled to claim damages in respect of his schizophrenic illness."

• [8] Paragraph 9(c)(iv) of the FAD was further relied upon by the defendant in denying the allegation that the plaintiff was entitled to commence the proceedings pursuant to s 295 of the WCRA based on compliance with Parts 2, 5 and 6 of Chapter 5 of the WCRA when in fact he had not complied.[1]

• [9] The plaintiff seeks to strike out paragraph 9(c)(iv) of the FAD pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (Qld). The particular basis within rule 171 was not identified by the plaintiff, but I would assume given the nature of the complaints that it is on the basis that paragraph 9(c)(iv) does not plead a reasonably arguable defence in fact and/or in law.
• [10] The power to strike out is exercised only in the clearest of cases.[2]
• [11] The plaintiff seeks a declaration of the Court that he is entitled to claim damages for a psychiatric injury that encompasses a schizophrenia disorder, either:

(a) because the notice of assessment was sufficient to cover any psychiatric or psychological injury sustained by the event, and claim damages under s 237 of the WCRA, while the nature and extent of such injury and matters of causation are properly issues for the trial judge; or

(b) on the basis of the principle in Barraclough v WorkCover Queensland (Barraclough),[3] whereby the plaintiff does not require the notice of assessment to include a reference to schizophrenia because it is secondary to injuries for which he does have a notice of assessment, namely the physical injuries and PTSD.

• [12] The plaintiff contends that the question for the Court in terms of the second matter is not factual, and it only seeks a declaration that it is entitled to run its claim at trial. That is true insofar as matters such as causation will remain.
• [13] Alternatively, the plaintiff contends that WorkCover did not make a decision to accept or reject schizophrenia as a separate injury, in which case the plaintiff seeks a declaration that WorkCover is obliged to do so under s 239A(4) of the WCRA.

• [14] It is uncontentious for the purposes of this application that:

(a) the plaintiff suffers from schizophrenia;

(b) schizophrenia was not specifically raised as a work-related injury until it was pleaded in the amended statement of claim, but medical reports provided during the pre-court proceedings did raise it as an injury suffered from the work-related event;

(c) there is conflicting medical evidence as to whether the plaintiff's condition of schizophrenia is work-related or not; and

(d) there is conflicting evidence as to whether schizophrenia or the aggravation of schizophrenia was caused by the work-related incident.

• [15] Given the nature of the arguments raised on behalf of the plaintiff it is necessary to canvas the factual background and some of the medical evidence in a summary form.
• [16] On 24 January 2018, the plaintiff made an application for compensation under the WCRA_._ The only injury identified in that application was described as follows:[4]

"Head - unspecified locations, Laceration not involving amputation".

• [17] On 28 January 2018, the plaintiff's general practitioner issued a work capacity certificate which included a diagnosis of "post traumatic stress".[5]
• [18] On 5 February 2018, the plaintiff's general practitioner issued a work capacity certificate which included a diagnosis of "post traumatic stress" with a treatment recommendation of "psychology review".[6]
• [19] Two further certificates in similar terms were issued by the plaintiff's general practitioner identifying the need for an independent assessment by a psychologist and a psychiatrist.
• [20] Although the claim for a psychological condition had not been formally included in the application for compensation, WorkCover acted upon the work capacity certificates and treated the claim for compensation as being for both the physical injury to the head as well as the PTSD.
• [21] On 9 February 2018, WorkCover began paying the plaintiff statutory benefits.
• [22] On 12 and 20 February 2018, WorkCover advised the plaintiff's employer that it would not pay wages for time off work at that stage because it had not "accepted a psychological claim as of yet".[7]
• [23] WorkCover arranged for the plaintiff to be examined by Dr Daniel, psychiatrist, for an independent opinion. The plaintiff was examined by Dr Daniel on 13 February 2018. In his report to WorkCover dated 20 February 2018, Dr Daniel found that the plaintiff had "a post traumatic stress disorder which is work-related, and a mild psychotic disorder which is not work-related".[8] He stated that the plaintiff appeared to have "a premorbid and pre-existing paranoid state with minimal trust and mild auditory hallucinations".[9]
• [24] On 21 February 2018, WorkCover advised the plaintiff that it had accepted his "secondary psych claim" and advised him to attend his general practitioner for referral to a psychiatrist or ongoing rehabilitation.
• [25] The plaintiff subsequently received treatment from psychologists (Mr Wong and Ms Wirawan) and psychiatrists (Dr Alagarsamy and Dr Sarkar).
• [26] In a report dated 23 April 2018 prepared for WorkCover, Mr Wong relevantly opined that the plaintiff suffered from:

"Adjustment Disorder with mixed anxiety and depressed mood with the differential diagnosis of Posttraumatic Stress Disorder pending further investigation."

• [27] In a report dated 1 August 2018 prepared for WorkCover, Ms Wirawan relevantly stated that she considered that the plaintiff's psychological symptoms were consistent with PTSD.
• [28] In a report dated 13 August 2018 prepared for WorkCover, Dr Alagarsamy reported that the plaintiff's condition was not stable and stationary and that his work-related conditions were PTSD, major depressive disorder, psychosis NOS, and anxious personality traits. He noted that the plaintiff "developed severe anxiety, post-traumatic stress disorder and major depressive disorder following the incident" and further stated that "I am unsure of the paranoid personality disorder diagnosis suggested by Dr Hugh Daniel. Due to severe anxiety, insomnia, following the accident he developed psychotic symptoms in the form of auditory hallucinations and depressive cognitions".[11]
• [29] According to a further report of Dr Daniel dated 5 September 2018, following a further examination on 29 August 2018, the plaintiff had a post-trauma syndrome and non-work-related schizophrenia. In relation to the schizophrenia, Dr Daniel stated that it "had its onset in the setting of approximately 12 months of decline in function as well as some other incidents at work".[12] He referred to the plaintiff having a psychosis but stated it was not work-related. He considered that both the PTSD and schizophrenia contributed to the plaintiff's incapacity to work and that "[i]t is obviously difficult to separate out the post-trauma from the schizophrenic illness".[13] He further commented that "[t]here are some post-trauma symptoms although these obviously merge with his general paranoid interpretation (from schizophrenia) on a background of paranoid tendencies".[14] Dr Daniel also stated that the plaintiff had developed an intercurrent psychotic condition that also required treatment and which created difficulties in addressing the post-trauma symptoms.
• [30] Dr Daniel provided a further report to WorkCover dated 12 March 2019. He considered that the plaintiff's presentation was "complex with a non-work-related schizophrenia, as well as an underlying trauma syndrome related to a near drowning as well as a couple of other incidents in his life".[15] He stated that the plaintiff's work-related condition was an exacerbation of an underlying post-traumatic stress disorder and that he had a pre-existing condition of schizophrenia. Dr Daniel stated in answer to the question of whether there had been a psychological injury sustained secondary to the work-related physical injury, and whether work was a major contributing factor to the injury, that he believed the plaintiff "had an exacerbation of an underlying post-trauma issue that was developing since 2017. The employment is a contributing factor to the exacerbation but not the underlying condition". In a supplementary report dated 21 March 2019, Dr Daniel stated that he considered that the plaintiff was stable and stationary and that his ongoing functional incapacity was "mainly due to the underlying condition with a component due to the work accident".

"... he will not be able to go back to his substantive role due to a combination of pain, his Posttraumatic Stress Disorder and Schizophrenia. The tribunal considers that, if it were not for the non-work-related Schizophrenia, he would be able to work in a position less than 20 hours per work in a different position that requires less skill or is less stressful".

• [36] On 16 July 2019, WorkCover issued two notices of assessment to the plaintiff.
• [37] In relation to the plaintiff's physical injury, the First Notice of Assessment (First Notice of Assessment) provided as follows:[24]

Degree of Permanent Impairment attributable to the injury

You have not sustained a degree of permanent impairment (DPI) from the injury assessed for the purposes of this Notice of Assessment.

The degree of permanent impairment (DPI) for your injury is 0%

• [38] In relation to the plaintiff's psychological/psychiatric injury, the Second Notice of Assessment (Second Notice of Assessment) provided:[25]

You have sustained a degree of permanent impairment from psychiatric/psychological injury assessed for the purposes of this Notice of Assessment.

The degree of permanent impairment (DPI) for you psychiatric/psychological injury is: 5%.

You are entitled to lump sum compensation of $ 16,512.00 and therefore, under s 187 of the Workers' Compensation Rehabilitation Act 2003, you are offered the above amount of lump sum compensation.

In determining the total degree of permanent impairment, the combined impact of the following diagnosed conditions/injuries was assessed:

• [39] The plaintiff subsequently elected to seek damages for his injuries by lodging a notice of claim for damages on 25 September 2019 (Notice of Claim).[26] In the Notice of Claim, the plaintiff stated in answer to "particulars of all injuries alleged to have been sustained because of the event":

Post-traumatic stress disorder, Depression & Anxiety

• [40] In relation to the mind and head injuries, the plaintiff indicated that a Notice of Assessment had been received. The plaintiff described the effect of his injuries at length in response to the question "how is the worker presently affected by the injury/ies?" as well as in the method of calculation of damages.
• [41] On 10 October 2019, WorkCover gave the plaintiff notice that it was satisfied that the Notice of Claim was a complying notice pursuant to s 278 of the WCRA. It noted that the plaintiff had foreshadowed that the plaintiff was going to provide a further report including from Dr De Leacy.
• [42] On 10 February 2020, WorkCover gave notice to the plaintiff under s 281 of the WCRA that it admitted liability for the plaintiff's claim, but without admission that the plaintiff had sustained injury, whether of the nature and extent alleged or at all.[27]
• [43] The plaintiff underwent further assessments by Dr Daniel who provided further reports. The plaintiff also provided psychiatric assessments in reports from Dr De Leacy and Professor McFarlane.
• [44] In his first report dated 30 October 2019, Dr De Leacy stated that he considered that the plaintiff had PTSD on the background of schizophrenic illness. He considered that the cause of the plaintiff's complaints was a work-related injury and that he "does appear to have had a psychotic illness previously but the stress of the work related incident has reactivated or aggravated his Schizophrenia".[28] Dr De Leacy opined that it was a complex case "where there is difficulty in considering the effects of pre-existing illness".[29] He considered that if it were not for the incident, the plaintiff could have continued to work.
• [45] In a further report of 19 November 2019, Dr Daniel confirmed his diagnosis of PTSD, which was work-related, and schizophrenia, which was not work-related. Dr Daniel found a marked deterioration in the plaintiff's schizophrenia. He did not consider that the decline was from the work incident.
• [46] In a subsequent report of 12 June 2020, Dr De Leacy opined that there was a causal and temporal link between the work injury and onset of the schizophrenic illness and that a head injury was likely to cause the development of a schizophrenia type illness.

• [54] The WCRA sets out a regime for the claiming and payment of compensation, and for the pursuit of common law damages, in respect of injuries sustained by workers.[32] The outline below refers to the WCRA current as at January 2018.
• [55] As to the scheme under the WCRA for the making of a claim for damages, Martin J explained in Connor v Queensland Rail Ltd:[33]

"In brief, the relevant sections of the [WCRA] provide that the following steps are to be taken by a worker who claims to have a work-related injury:

(a) Apply to the insurer for compensation (s 132)

(b) The insurer decides to accept or reject the application (s 134)

(c) If the insurer rejects the application, the worker may:

(i) Seek a review by the Regulator and, if unsuccessful,

(ii) Appeal to the Queensland Industrial Relations Commission (hearing de novo) and, if unsuccessful,

(d) If the worker's application is accepted, either originally or after review/appeal, then the worker may seek damages if he or she falls into one of the categories in s 237."

• [56] Pursuant to s 108 of the WCRA, compensation is payable under the WCRA for an "injury" sustained by a worker. Injury is defined in s 32(1) of the WCRA to relevantly mean "personal injury arising out of, or in the course of, employment" if, in the case of an injury other than a psychiatric or psychological disorder, the employment is a significant contributing factor to the injury. In the case of a psychiatric or psychological disorder, at the time relevant to the present case, s 32(1)(b) required that "the employment is the major significant contributing factor to the injury".
• [57] Section 132 of the WCRA provides for an application for compensation to be made in the approved form by a claimant, which the insurer is required to accept or reject in accordance with s 134 WCRA.
• [58] An insurer may decide to have a worker's injury assessed to decide if the worker's injury has resulted in a degree of permanent impairment, or may be required to do so.[34]
• [59] Section 179(2) of the WCRA, as it applied at the relevant time,[35] provides that:

(2) The insurer must have the degree of permanent impairment assessed -

(a) for industrial deafness - by an audiologist; or

(b) for a psychiatric or psychological injury - by a medical assessment tribunal; or

(c) for another injury - by a doctor.

• [60] Section 179(4) of the WCRA provides that:

(4) If the worker sustains permanent impairment from multiple injuries sustained in 1 event -

(a) the degree of permanent impairment for the injuries, other than a psychiatric or psychological injury, must be assessed together to decide the DPI for the injuries; and

(b) the degree of permanent impairment for the psychiatric or psychological injury must be assessed separately to decide the DPI for the injury.

• [61] Chapter 3, Part 10, Division 2 of the WCRA sets out how an assessment by the MAT takes place.
• [62] Chapter 11, Part 3 of the WCRA deals with the MAT's jurisdiction. Under s 500 of the WCRA, an insurer may refer a number of matters in relation to an injury to the appropriate tribunal for a decision on medical matters, including a worker's application for compensation for an alleged injury[36] and a worker's permanent impairment under s 179 of the WCRA.[37]
• [63] Relevantly, in relation to a reference to a tribunal involving a worker's application for compensation for an alleged injury, ss 501, 502, 505 and 515 of the WCRA provide:
  1. Reference about application for compensation

(1) This section applies on a reference to a tribunal under section 500(1)(a).

(2) If the insurer has not admitted that an injury was sustained by a worker, and the nature of the injury, the tribunal must decide -

(a) whether the matters alleged in the application for compensation constitute an injury to the worker and, if so, the nature of the injury; and

(b) whether an incapacity for work resulting from the injury -

(i) is total or partial; and

(ii) is permanent or temporary; and

(c) if the tribunal decides that the worker has sustained an injury resulting in permanent impairment and the insurer asks - the DPI for the injury.

(1) This section applies on a reference to a tribunal under section 500(1)(b).

(2) A reference under section 500(1)(b) may be made at any time and from time to time.

(a) whether, when it makes its decision, there exists in the worker an incapacity for work resulting from the injury for which the application for compensation was made; and

(b) whether the incapacity -

(c) if the worker has sustained an injury resulting in permanent impairment and the insurer asks - the DPI for the injury.

1. Reference about worker's permanent impairment

(1) This section applies on a reference to a tribunal under section 500(1)(e).

(a) whether the worker has sustained a degree of permanent impairment; and

(b) if the worker has sustained a degree of permanent impairment -

(i) the degree of permanent impairment resulting from the injury; and

(1) Either of the following decisions of the tribunal is final and can not be questioned in a proceeding before a tribunal or a court, except under section 512 -

(a) a decision on a medical matter referred to the tribunal under section 500;

(b) a decision under section 514(1). (2) Subsection (1) has no effect on the Judicial Review Act 1991.

• [64] It is open to a worker under s 512 of the WCRA to ask the insurer to consider fresh medical evidence about the worker's injury within 12 months of the making of the original decision. The insurer must refer the medical evidence to a review panel to consider whether it is relevant to the application to be decided and is factual medical data not known about the worker at the time of the tribunal's decision. The review panel must consider the medical evidence produced by the worker and may accept or reject the evidence. Its decision is final in that regard and may not be appealed. If accepted, the insurer must refer the application to the appropriate tribunal for further decision.
• [65] After the insurer has received the assessment of the worker's permanent impairment under s 179 of the WCRA, it must give the worker a notice of assessment in the approved form and state whether the worker has been assessed as having sustained a permanent impairment, the DPI for the injury, and the lump sum compensation to which the worker would be entitled under s 180 of the WCRA.[38]
• [66] Where the DPI for an injury is less than 20%, and the worker has an entitlement to lump sum compensation, the worker must make an irrevocable election to whether he or she accepts the offer of payment of lump sum compensation or will seek damages for the injury.[39]

• [67] A worker's entitlement to seek damages for injuries is limited by s 237 of the WCRA, which relevantly provides:
  1. General limitation on persons entitled to seek damages

(1) The following are the only persons entitled to seek damages for an injury sustained by a worker -

(i) has received a notice of assessment from the insurer for the injury; or

(ii) has not received a notice of assessment for the injury, but -

(A) has received a notice of assessment for any injury resulting from the same event (the assessed injury); and

(B) for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or

(iii) has a terminal condition;

(b) a dependant of the deceased worker, if the injury results in the worker's death and -

(i) compensation for the worker's death has been paid to, or for the benefit of, the dependant under chapter 3, part 11; or

(ii) a certificate has been issued by the insurer to the dependant under section 132B.

• [68] In the present case the plaintiff elected to seek damages when he lodged a "notice of claim" under chapter 5 of the WCRA.
• [69] Section 239A of the WCRA provides:

239A Worker with more than 1 injury from an event

(1) This section applies to a claimant who is a worker mentioned in section 237(1)(a)(ii).

(2) The claimant can not have, and the insurer can not decide to have, the injury assessed under chapter 3, part 10 to decide if the claimant has sustained a DPI.

(3) The insurer can not decide the claimant's notice of claim does not comply with section 275 only because the claimant has not received a notice of assessment for the injury.

(4) However, the claimant may seek damages for the injury only if the insurer decides the claimant has sustained an injury.

(5) The insurer must make a decision for subsection (4) within 40 business days after -

(a) the claimant gives, or is taken to have given, a complying notice of claim; or

(b) the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions; or (c) a court makes a declaration under section 297.

(a) notify the claimant of its decision for subsection (4); and

(b) if the insurer decides the claimant has not sustained an injury - give the claimant written reasons for the decision; and

(c) if the insurer is WorkCover - also give the information mentioned in paragraphs (a) and (b) to the claimant's employer.

(7) If the insurer does not make a decision for subsection (4) within the time stated in subsection (5) -

(a) the insurer must, within 5 business days after the end of the time stated in subsection (5), notify the claimant -

(i) of its reasons for not making the decision; and

(ii) that the claimant may have the insurer's failure to make the decision reviewed under chapter 13; and

(b) the claimant may have the insurer's failure to make the decision reviewed under chapter 13.

(8) A person aggrieved by the insurer's decision may have the decision reviewed under chapter 13.

• [70] Sections 237 and 239A are both contained in Chapter 5 of the WCRA. Section 235 of the WCRA provides that:
  1. Requirements of chapter to prevail and are substantive law

(1) If a provision of an Act or a rule of law is inconsistent with this chapter, this chapter prevails.

(2) All the provisions of this chapter are provisions of substantive law.

(3) However, subsection (2) does not affect minor variations in procedure.

• [71] Part 7 of Chapter 5 sets out the conditions that must be satisfied before a claimant can commence a court proceeding.[40] Section 295 provides:
  1. Compliance necessary before starting proceeding

The claimant may start a proceeding in a court for damages only if the claimant has complied with─

(a) the relevant division under part2, to the extent the division imposes a requirement on the person; and

(b) part 5, other than as provided by sections 297 and 298; and

(c) part 6; and

(d) section 296.

Was the Plaintiff entitled to seek damages for schizophrenia under the WCRA?

• [72] The defendant contends that there are two discrete psychiatric conditions relevantly suffered by the plaintiff, PTSD and schizophrenia, one of which was accepted by the MAT to be work-related and one which was not. WorkCover issued the Second Notice of Assessment to the plaintiff in respect of PTSD only. The plaintiff was entitled to seek damages from the defendant once a notice of assessment was issued under Part 2, Chapter 5 of the WCRA. The defendant contends it was, however, also necessary to comply with the pre-court procedures in Part 5 of Chapter 5 and the procedures for settlement in Part 6. The defendant contends that the plaintiff's compliance with those provisions did not include schizophrenia. The defendant contends that no Notice of Assessment was issued in respect of schizophrenia nor did the plaintiff's Notice of Claim refer to schizophrenia, which would have enlivened s 237(1)(a)(ii) of the WCRA and it had not made a decision that the plaintiff's schizophrenia illness is an injury within the meaning of s 32 WCRA. The defendant therefore contends that its defence in [9(c)(iv)] FAD is properly raised.
• [73] The defendant further contends that even if the plaintiff had included schizophrenia in the Notice of Claim, WorkCover could not have accepted the injury. While the Notice of Claim would not be invalid under s 275 of the WCRA because of that, under s 239A(3) of the WCRA WorkCover could not decide whether the schizophrenia was an injury under s 239A(4) because the MAT had already determined that question. According to the defendant, the MAT had determined a "medical matter" which was within its jurisdiction, namely that the plaintiff's schizophrenia was not work-related. WorkCover could not therefore decide to the contrary under s 239A(4) of the WCRA due to s 515 WCRA. No judicial review is sought of the MAT's decision.
• [74] The plaintiff contends that WorkCover did in fact, accept the payment of compensation for a psychiatric injury generally that encompassed potential differential or additional diagnosis of schizophrenia or psychotic disorder and that the Second Notice of Assessment was issued in respect of that injury and sufficient to enliven the issue of schizophrenia for the purposes of s 237(1)(a) and s 275 of the WCRA. In particular the plaintiff relies on the fact that:

(a) While there was no formal acceptance of the plaintiff's psychological injury, WorkCover referred the plaintiff for an independent medical evaluation after the medical certificates of the general practitioner were received diagnosing the plaintiff with PTSD and some other symptoms and started paying the Plaintiff's statutory benefits from 9 February 2018;

(b) WorkCover informed the plaintiff on 21 February 2018 that it had the independent medical examiner's report and that "WC has accepted your secondary psych claim"[41] after it had received Dr Daniel's report dated 20 February 2018 without stating that did not include the non-work-related condition referred to by Dr Daniel. He was told to return to his general practitioner to get the relevant referrals for treatment. It continued to pay statutory benefits to the plaintiff without making any delineation between PTSD and the psychotic diagnosis and paid for psychological and psychiatric treatment;

(c) WorkCover had received medical reports from psychologists and psychiatrists with varying opinions on the diagnoses including as to the causes but did not issue any notice rejecting diagnoses said to be non-work-related such as psychosis or schizophrenia;

(d) WorkCover had only referred the degree of the plaintiff's incapacity and permanent impairment to the MAT for assessment pursuant to s 500, s 502 and s 505 but not the worker's application for compensation for the alleged injury under s 501 of WCRA which it was only entitled to do if the "insurer has not admitted that an injury was sustained by a worker and the nature of the injury".[42]

(e) WorkCover did not inform the plaintiff that it had rejected schizophrenia as an injury. In that regard the plaintiff submits although WorkCover had informed an employee of the MAT on 26 March 2019 that it did not accept any aggravation to schizophrenia was work-related but accepted the laceration and PTSD, after an inquiry was made by an employee of the MAT based on a reference in a report of Dr Daniel which apparently referred to PTSD aggravating the schizophrenia, that was in a private conversation not communicated to the plaintiff and could not constitute rejection of compensation for schizophrenia.

(a) the MAT decision of 26 June 2019, which referred to the plaintiff presenting with symptoms of schizophrenia and stated that the MAT "chronic Paranoid Schizophrenia to be work related",[43] was not a decision rejecting the schizophrenia as an injury. The decision on the first page of the MAT's reasons related to the plaintiff's capacity for work and permanent impairment resulting from the injury. The "decision" did not encompass any rejection of schizophrenia as an "injury" under the WCRA which constrained WorkCover;

(b) even if the MAT did make a decision rejecting schizophrenia as an "injury" under the WCRA, its decision was legally ineffectual because the referral to the MAT was not to decide on medical matters in relation to the plaintiff's application for compensation for an alleged injury under s 501 of the WCRA, but rather for an assessment of the plaintiff's capacity for work under s 502 and permanent impairment under s 505. It therefore was not making a determination on "medical matters" within its jurisdiction, insofar as it referred to schizophrenia being non-work-related. The plaintiff contends that WorkCover was precluded from making a referral under s 501 WCRA because it had accepted the injury.

• [76] The plaintiff submits that the description in the Second Notice of Assessment of PTSD does not justify the conclusion that the injury which formed part of the accepted claim is different to the injury now claimed. Rather it was rather merely descriptive of the same injury in different ways. The plaintiff submits that a notice of assessment cannot dictate or limit the consideration of the diagnosis of the injury or the events which caused it.[44] It contends that the claim is for the same "secondary psych claim" arising from the work event on 18 January 2018 which WorkCover stated it had accepted and for which it paid statutory benefits. The plaintiff contends that the precise description of a psychiatric diagnosis and the extent to which it was caused by a work event is a matter for the trial judge.
• [77] The plaintiff further contends that s 179(4) of the WCRA only requires an assessment of impairment in respect of a psychiatric injury treating psychiatric or psychological conditions as a single injury, regardless of the fact that different diagnostic terms may be used to describe psychological conditions. The plaintiff draws support for its construction from the fact that s 179(4) refers to the degree of permanent impairment for physical injuries being assessed together, as opposed to s 179(4)(b) referring to "the psychological or psychiatric injury". That accords with the fact that a psychiatric injury only affects the mind and s 179(4)(b) reflects the intent to assess the full extent of the psychiatric impairment as one injury to the mind, which occurred in the present case.
• [78] The defendant contends that the plaintiff's arguments should be rejected because the:

(a) fact that WorkCover acted benevolently in paying the plaintiff benefits does not give rise to an inference that WorkCover accepted schizophrenia as an "injury" under s 32 of the WCRA and the statement by WorkCover to the plaintiff that WorkCover had accepted his secondary psych claim do not affect the application of the WCRA, nor given that schizophrenia was not included in the Notice of Claim did the plaintiff believe he was entitled to make such a claim;

(b) MAT clearly decided that schizophrenia was not an "injury";

(c) MAT's decision was with respect to a medical matter within its jurisdiction;

(d) MAT had drawn a distinction between PTSD and schizophrenia, which was a medical matter within the MAT's jurisdiction. The Second Notice of Assessment reflected that distinction, unlike the cases relied upon by the plaintiff where various descriptions had been given for a back injury and a depressive condition; and

(e) reference to the singular and plural in s 179 of the WCRA was of no moment because s 32C of the Acts Interpretation Act 1954 (Qld) (AIA) applies such that the singular should include the plural. The defendant's construction is supported by the Costello v Queensland Rail (Costello),[45] as is the fact that the schizophrenia and PTSD should be dealt with as two separate injuries.

Was the psychological or psychiatric injury the subject of the Second Notice of Assessment sufficient?

• [79] Under s 134 WCRA Workcover must allow or reject a claimant's application for compensation. If it rejects an application it must give when giving the claimant notice of its decision written reasons for the decision and information prescribed by legislation.[46] In the present case the application for compensation did not in fact raise any psychological injury. It was a matter which WorkCover decided to address after receipt of the Medical Certificates. Workcover did not correspond with the plaintiff in relation to its acceptance or rejection of any injury as a result of the incident at work on 19 January 2018.[47] It did however, speak to the plaintiff's employer on 20 February 2018 stating it had accepted the claim for physical injuries only but not for the psychiatric injury which was the cause of the plaintiff having no capacity to work.
• [80] Workcover subsequently orally advised the plaintiff on 21 February 2018 that the "IME Report has come back and WC has accepted your secondary psych claim. Customer advised it has paid you for your time loss....". While the reference is undoubtedly ambiguous, "secondary psych claim" could not be fairly construed as extending to a psychological injury which had been identified in the report as being non-work-related, given the definition of "injury" under s 32 WCRA. Strictly speaking it was not obliged to communicate any rejection of the "non-work-related injury" to the plaintiff because it had not been the subject of the application for compensation, but given WorkCover's position, it should have been, communicated to the plaintiff.
• [81] The defendant contends that WorkCover's benevolent approach to the plaintiff's entitlement to statutory benefits does not give rise to an inference that it accepted schizophrenia as an injury as defined in s 32 of the WCRA. It contends that neither the payment nor the statements made give rise to any estoppel, nor affect the application of the WCRA to the plaintiff's common law claim.
• [82] While a body such as WorkCover should make clear its position to a worker the fact it had been paying statutory benefits, without adjustment notwithstanding the condition of schizophrenia or a mild psychotic disorder had been identified by Dr Daniel as non-work-related does not constitute an acceptance of the non-work-related injury of itself. The report of Dr Daniel and the psychologists who subsequently provided reports identified that the significant psychiatric injury at the time WorkCover started to pay the statutory benefits was PTSD.

"The tribunal accepts that, in response to the work related incident on 19 January 2018, Mr Apelu developed a range of emotional symptoms consistent with a diagnosis of Posttraumatic Stress Disorder. The tribunal notes that Mr Apelu also presents with the symptoms of Schizophrenia. The independent medical examination indicated development of that condition prior to the index injury. The tribunal does not consider the chronic Paranoid Schizophrenia to be work related."

• [88] In its assessment of the permanent impairment, the MAT made a distinction between PTSD and schizophrenia (non-work-related) and considered the PIRS categories by reference to the difficulty suffered due to PTSD as opposed to non-work-related schizophrenia.[51]
• [89] The Second Notice of Assessment issued, which was issued in respect of the psychiatric injury, stated, inter alia:[52]

"You have sustained a degree of permanent impairment from psychiatric/psychological injury assessed for the purposes of this Notice of Assessment.

The degree of permanent impairment (DPI) for your psychiatric/psychological injury is 5 per cent".

• [90] The plaintiff contends that in describing the impairment the Second Notice of Assessment refers to "your psychiatric/psychological injury" consistent with its contention that s 179(4) prescribes that there is only one assessment of permanent impairment for a psychological or psychiatric injury and was sufficient to encompass any psychiatric injury claimed to have been caused by the work incident or the "event". The plaintiff's contention ignores the terms of the Second Notice of Assessment as a whole. It is however, plain on the face of the Second Notice of Assessment that the assessed injury and/or condition was limited to PTSD.
• [91] That the Second Notice of Assessment was an assessment of PTSD is consistent with the terms of the referral by WorkCover to the MAT and the assessment by MAT itself of PTSD. A clear distinction was drawn between the psychiatric conditions of PTSD and schizophrenia in the MAT's reasons, the latter being specified as non-work-related. In confining the Second Notice of Assessment to PTSD, WorkCover has adopted the view of the MAT as to the matter assessed, consistent with the view expressed by Holmes J in Watters v WorkCover Queensland.[53]

• [92] An assessment of injury is of some importance under the WCRA. McMurdo JA in Merton v Queensland Local Government Workcare Scheme,[54] stated "the assessment of an injury and the notice of that assessment are essential steps towards obtaining payment, or an offer of payment, of a lump sum compensation and an entitlement to seek common law damages for the injury."
• [93] As was said by North J in Muckermann v Skilled Group Ltd (Muckermann),[55] the assessment of permanent impairment to which s 179 WCRA relates establishes whether a worker is entitled to a payment of a lump sum and a notice of assessment evidences the degree of permanent impairment and the lump sum payment to which the worker is entitled.[56] It also functions as part of the regulation of access to damages.[57] However the concept of the "event" referred to in s 31 is of importance in the context of plaintiff seeking damages[58] with Notice of Claim having to include the particulars prescribed under regulation.
• [94] The plaintiff, however, contends that the description of PTSD in the Notice of Assessment does not justify a conclusion that the injury which formed part of the accepted claim is different to the injury now claimed, namely PTSD and schizophrenia or aggravation of schizophrenia, because they are merely descriptions of the same psychiatric injury suffered from the event as defined in s 31 WCRA.
• [95] The plaintiff contends that the Second Notice of Assessment cannot dictate or limit the consideration of the diagnosis of the injury, or the events that caused it, which is supported by the authorities. However those cases provide little assistance in the present case, insofar as the psychiatric injury assessed by the MAT was limited to PTSD, which is reflected in the Second Notice of Assessment.
• [96] In Bell v Australia Meat Holdings Pty Ltd,[59] Davies JA, with whom the rest of the Court agreed, considered that the description of the injury in the notice of claim and the injury assessed and notified in the notice of assessment were not necessarily different, both describing injuries to the lower spine which both possibly aggravated a pre-existing degenerative condition.

"Under these provisions of the WCRA, ACES' 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. ACES was not 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 the degree of permanent impairment on its behalf."

• [98] Her Honour found that the insurer could not use the date nominated by the plaintiff as the date of injury to limit the substance of what was assessed pursuant to s 179 of the WCRA. Nor could it use the fact that the notice of claim specified two events to assert that the notice of claim was in relation to two injuries. The notice of claim was consistent with the plaintiff suspecting that there were two events causing one injury and the impairment from that injury had been assessed by a doctor and the notice of assessment dealt with that injury. The plaintiff was therefore entitled to seek damages for the injury having received a notice of assessment in relation to that injury.
• [99] In Muckermann v Skilled Group Ltd (Muckermann),[61] North J found that the injury assessed was plainly the same injury referred to in the notice of assessment, notice of claim for damages and statement of claim, and that the description of the psychiatric injury in the notice of assessment did not alter that position. In that case, the plaintiff made a claim for compensation for physical injuries suffered between July and December 2007. WorkCover, however, became aware that the plaintiff had suffered a psychiatric injury which was accepted without requiring anything further. The psychiatric injury was described as "major agitated depression". Subsequently, the plaintiff was requested to give details of the event which he described as causing the psychiatric injury and he referred to bullying and harassment while on light duties. That was provided prior to WorkCover making a referral to the MAT. The MAT was asked to assess the extent of the psychiatric injury. The material before the MAT included information and medical reports about the plaintiff's complaints about bullying and harassment. The MAT assessed the impairment on the basis of major depressive disorder in partial remission. The Notice of Assessment however referred to "secondary major depressive disorder". The plaintiff sued for psychiatric injuries suffered in 2008 from bullying and harassment. WorkCover contended that the psychiatric injury claimed by the plaintiff had not been assessed and the assessment related to depression from pain and suffering from physical injuries.
• [100] North J observed that:[62]

"Further the assumption in the submissions made on behalf of the first defendant that the medical assessment tribunal must have concluded or acted upon the assumption that the plaintiff's psyche injury was "secondary" to the pain and suffering from the physical injury and not attributable or partially attributable to some other cause goes too far. I have already noted that some of the medical evidence before the tribunal suggests other factors may have been causative. The tribunal had power to examine and question the plaintiff. It was not necessarily limited to the opinions or information of a hearsay nature contained in the reports of others. While the tribunal's statement preliminary to its "decision" makes reference to "work-related aspects" the reference to the tribunal only required of it an assessment of the extent of the incapacity and the nature and degree of permanent impairment. The question of whether an injury had been sustained would have required a different referral. Strictly speaking the question of causation, what matters or "events" contributed to the suffering of the psychiatric illness, or even if the asserted illness was work related was not referred to the tribunal and as it transpired the tribunal's "decision" was limited to the matters referred to it."

• [101] To the extent there was a disparity between what WorkCover understood the cause of the psychiatric injury of the plaintiff from that contended by the plaintiff, North J found that was the result of the fact that WorkCover had accepted the injury without asking for further detail, not that the psychiatric injury arising from bullying had not been the subject of the Notice of Claim. His Honour found the description of "secondary depressive disorder" was chosen by WorkCover which was the result of a wrong assumption by WorkCover. His Honour noted that in the context of an assessment by a medical tribunal under s 179(2)(b), the task was not to make findings about what events caused the injury or the dates on which those events might have occurred.[63] His Honour found that the injury assessed was plainly the same injury referred to in the notice of claim, noting that in the context of litigation for damages that the cause of and nature or extent of the injury if in issue will be a matter which will depend on the ultimate trial findings of the Judge. His Honour determined to make a declaration that the injury contained in the notice of claim was assessed under s 179 of the WCRA, in circumstances where no prejudice to WorkCover had been identified.
• [102] The plaintiff contends that the present case is very similar to Muckermann given that the plaintiff had not raised a psychiatric injury in his original application for compensation but WorkCover had taken it up when PTSD was referred to by the plaintiff's general practitioner in a subsequent medical certificate provided to Workcover. Workcover however contends that the distinguishing feature in the present case is that there was an express determination by the MAT in the present case that schizophrenia was not work-related which was a finding as to a medical matter which was binding upon Workcover and it had acted on the basis of the decision of the MAT. It noted that the plaintiff could have challenged the MAT decision through judicial review if, as the plaintiff asserts, it was beyond its jurisdiction or fresh evidence could have been presented under s 512 of the WCRA could be presented.
• [103] Unlike Muckerman, the MAT specifically did not assess schizophrenia as a work-related injury and only assessed PTSD, finding as part of its reasoning that schizophrenia was non-work-related and treating it as a separate condition. The Second Notice of Assessment refers to PTSD which accords with the decision of the MAT. It cannot be construed as encompassing any psychological or psychiatric condition or extend to the "secondary psych claim" adopting the broad contention of the plaintiff (which for the reasons above I did not accept). It was confined to PTSD. Schizophrenia was clearly identified by the MAT to be a separate discrete condition. It would be contrary of the assessment of the MAT to treat it as being an assessment of a psychiatric injury beyond PTSD. It would be inconsistent with the reasoning of McMeekin J in to treat as extending to the further psychiatric injury of schizophrenia which had not been subject of the assessment and was expressly stated not to be the subject of the assessment.

"The purpose of the assessment is to enable the insurer to make an offer of a lump sum amount which has at least three potential effects - the worker's rights to further compensation will come to an end upon acceptance of the offer or the elapsing of a defined period of time after the offer; the worker may, depending on the degree of impairment become entitled to additional lump sum amounts; and the worker's ability to access common law damages turns on the workers' decision whether to accept the amount offered."

• [108] His Honour noted that the disadvantage to a worker if the insurer could at its option not refer an injury for assessment, even though that may have the consequence of reducing the degree of permanent impairment assessed and so the consequent lump sum offered, supported the fact that both conditions should have been referred to the MAT. The limitations on review, namely that there was no review on the merits from the MAT or appeal and only judicial review further supported the fact that it was obligatory to make the referral. While the material before the MAT referred to the depressive disorder, his Honour noted that the terms of reference to the MAT were limited to assessing the incapacity from the accepted injury which was expressly identified as PTSD. His Honour therefore found that WorkCover had not complied with the WCRA in not expressly referring the depressive disorder for assessment by the MAT. His Honour determined that the notice of assessment was invalid and that he could make a declaration to that effect.
• [109] In the present case, the plaintiff contends quite correctly that the court in Costello did not consider the construction of s 179(4) of the WCRA and that McMeekin J's acceptance that there were two injuries was in a different context from that being raised before the Court presently. It does not assert the Second Notice of Assessment is invalid for failing to provide an assessment for incapacity and impairment which included schizophrenia. What is suggested is that multiple psychological or psychiatric conditions are treated as a single psychological or psychiatric injury under s 179(4)(b) and that the Notice of Assessment stands as an assessment of the psychological or psychiatric injury caused by the event even if a particular psychiatric condition is not referred to the MAT nor assessed in the determination of incapacity and the degree of permanent impairment.
• [110] While in Costello McMeekin J was dealing with s 179(2) of the WCRA, not s 179(4), the referral for a psychiatric or psychological injury is made under s 179(2)(b) which results in the assessment of permanent impairment under s 179(2)(b). His Honour considered the psychiatric opinion that two psychiatric conditions were identified as the injury suffered or potentially suffered and both were required to be referred for assessment under s 179(2)(b) which would form the assessment under s 179(4)(b) WCRA.

• [118] The alternative basis upon which the plaintiff contends that he is entitled to pursue a claim of damages in relation to the condition of schizophrenia is 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. In that case, it is contended that there is no requirement for a separate assessment for the consequential injury. In this regard, the plaintiff seeks to rely on the decision of Barraclough (Barraclough).
• [119] WorkCover does not contend that Barraclough is incorrect, but rather that a clear distinction had been made by psychiatrists and the MAT between PTSD and schizophrenia.
• [120] The plaintiff's argument principally relies on the opinions of Professor McFarlane, who considered that there was a causal link between the trauma of the accident and the onset of the schizophrenic illness. In his report dated 28 January 2022, Professor McFarlane stated:[71]

"In particular, PTSD which antecedes the onset of psychotic symptoms, is a significant contributing risk factor.

Assuming that Mr Apelu did not have symptoms of schizophrenia prior to 19th January 2018, this assumes that in the onset of symptoms of PTSD he progressively developed a prodrome of schizophrenia ... In essence, once these neurobiological pathways have been dysregulated, if the individual has any shared vulnerability for schizophrenia, the activation of the dysregulation of posttraumatic disorder increases the risk of schizophrenia."

• [121] Professor McFarlane in a further report of 19 May 2022 stated that in relation to causation, his view was that there was a "causal link between the trauma and the onset of his posttraumatic stress disorder, major depressive disorder and schizophrenia".[72]
• [122] In Barraclough, the issues were whether the applicant's reflex sympathetic dystrophy/causalgia (RSD), or the symptomology described in that way, was "a separate injury" and whether it had been accepted by WorkCover. Medical certificates had been provided stating that the applicant had "burns both hands". The applicant contended that RSD was a secondary consequence of the injuries described in the notice of assessment. The respondent, however, contended that the RSD was a separate injury and therefore had not been accepted by WorkCover and was causally independent.
• [123] The applicant in Barraclough sought declarations that the notice of claim for damages was a complying notice within the meaning of s 302 of the WCRA and that she was entitled to pursue damages at common law for injuries which included RSD. In that case, prior to WorkCover's rejection of the claim other than for chemical burn injuries, varying medical evidence had been provided to WorkCover, some of which supported the diagnosis of RSD and others which made clear that the injury was not stationary and stable. Durward SC DCJ found that the RSD was not a separate injury or rather a "different and unassessed injury" but was causally connected to the injuries that had been described. In that case, WorkCover had medical reports which included diagnoses for the RSD injury which were not the subject of the notice of assessment. His Honour found that the "overwhelming thrust of the medical evidence" was supportive of the causal connection between the diagnosis of RSD and the original injury, rather than there being two separate injuries.[73] His Honour found it was a progression of symptomology that had occurred and that the injury had "manifested itself in a progressive and developmental way and in a continuum".[74] There were no indicia of one or more separate injuries. His Honour found that the administrative system adopted by WorkCover had affected the construction of the description of the original injury to some extent.

Did WorkCover fail to make a decision under s 239A(4) WCRA

• [125] That brings into issue the third basis of the plaintiff's contentions, namely that if WorkCover's acceptance and Second Notice of Assessment did not encompass a schizophrenia diagnosis, WorkCover must by virtue of s 239A of the WCRA issue a decision on whether schizophrenia is an "injury" under the WCRA.
• [126] The Notice of Claim did not refer to schizophrenia or its aggravation in the particulars of the injuries suffered. In the absence of such a reference, particularly when it was a condition that had been referred to by the MAT in its reasoning, the obligation of WorkCover to consider whether it not it raised additional psychiatric injuries including schizophrenia that it had to consider and determine whether it accepted as an injury under s 239A(3) and (4) WCRA is unclear.
• [127] The plaintiff contends that the Notice of Claim sought damages for the "mind", describing the nature of those injuries as "Post-traumatic stress disorder, Depression and Anxiety", which was general enough to require consideration of schizophrenia.[75] Pursuant to s 239A of the WCRA, a notice of claim cannot be treated as a non-complying notice under s 275 of the WCRA only because the claimant has not received a notice of assessment for the injury. The plaintiff says that contrary to WorkCover's contention, WorkCover was not prevented from deciding whether or not the plaintiff has sustained an injury under s 239A(4) of the WCRA by virtue of s 515 of the WCRA because the MAT's decision in relation to schizophrenia did not fall within the prohibition provided in s 515 WCRA. I agree that was the case.
• [128] Although schizophrenia was not referred to in the Notice of Claim, the covering letter did refer to further evidence being provided to WorkCover from Dr De Leacy. Dr De Leacy in his report of 30 October 2019 stated:[76]

"The cause of your client's complaints has been brought about through the work related injury. He does not appear to have had a psychotic illness previously but the stress the work related incident has reactivated or aggravated his Schizophrenia."

• [129] However, I do not consider that the Notice of Claim clearly raised schizophrenia or aggravated schizophrenia as an injury which had to be considered by WorkCover under s 239A of the WCRA, such that the Court should make a declaration. It is not in my view an appropriate matter for this Court to determine and to make a declaration in relation to as is sought by the plaintiff. Unlike the position in Costello the plaintiff is not without relief if it can be considered to have raised schizophrenia or aggravated schizophrenia by the terms of the Notice of Claim. That is available under Chapter 13 WCRA. The plaintiff has under s 540(1)(c)(ii) of the WCRA a right 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), an extension of time may be sought to make the application for review. Given that avenue is still open to the plaintiff, it is not appropriate to make the declaration sought.
• [130] The defendant contended a declaration would in any event have been futile, because it was bound by the MAT's decision that schizophrenia was not a work-related injury.
• [131] The plaintiff also contends that the MAT's decision did not decide that schizophrenia was not an "injury" and, even if it did, it was ineffectual because the question of whether schizophrenia was an injury to the plaintiff had not been referred to the MAT under s 500 of the WCRA. No judicial review of the MAT decision was sought in that regard although plainly on the basis of the plaintiff's contention it could have been.
• [132] However, while WorkCover contends that such decision was within the MAT's jurisdiction, and it was a decision as to a medical matter, that is not in fact borne out by Part 3 of Chapter 11 of the WCRA. The MAT did consider schizophrenia was non-work-related as part of its path of reasoning in deciding the incapacity of the plaintiff suffered from PTSD and the level of permanent impairment. However, no referral was made to the MAT to consider whether schizophrenia constituted an injury to the plaintiff under ss 500(1)(a) and 501 of the WCRA. The only referral was made under ss 501(1)(e) and 505 of the WCRA. That is significant given that under s 515 of the WCRA, a decision of the MAT "on a medical matter referred to the tribunal" under section 500 cannot be questioned in a proceeding before a tribunal or a court. Given the question of whether or not schizophrenia was an injury was not a medical matter referred to the tribunal under s 500, even though the MAT expressed the opinion that schizophrenia as not work-related and had reference to the condition in assessing the plaintiff's permanent impairment in respect of PTSD, the MAT's opinion as to schizophrenia not being work-related was not a decision as to a medical matter within the terms of s 515 of the WCRA. As was identified by North J in such a determination in relation to schizophrenia would be required to be the subject of a separate referral under s 500(1)(a) and s 501 WCRA.

• [134] Given the findings above, the defence of the defendant contained in paragraph 9(c)(iv) does disclose a reasonable cause of action presently and the plaintiff's application is therefore dismissed.
• [135] The matter will be listed for mention on Friday 24 November 2023 at 9.45 am for the parties to address the question of costs.

• [136] The orders of the Court are that:
  1. The plaintiff's application is dismissed.
  2. The matter be listed for mention on 24 November 2023 at 9.45 am for submissions as to costs.

[2] Royalene Pty Ltd v Registrar of Titles [2007] QSC 059.

[3] [2012] QDC 321.

[4] Exhibit SWK2 to the Affidavit of Scott Wallace Keft filed 11 May 2023.

[5] Exhibit SWK4 to the Affidavit of Scott Wallace Keft filed 11 May 2023.

[6] Exhibit SWK7 to the Affidavit of Scott Wallace Keft filed 11 May 2023.

[7] Exhibit SWK39 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 252.

[8] Exhibit SWK9 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 16.

[9] Exhibit SWK9 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 15.

[10] Exhibit SWK16 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 28.

[11] Exhibit SWK22 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 46.

[12] Exhibit SWK24 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 56.

[13] Exhibit SWK24 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 59.

[15] Exhibit SWK31 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 80.

[16] Exhibit SWK31 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 83.

[17] Exhibit SWK32 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 84.

[18] Exhibit SWK33 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 86 (emphasis per original).

[20] Exhibit OS1 to the Affidavit of Omar Sarac filed 17 May 2023 at 2-3.

[21] Exhibit SWK37 to the Affidavit of Scott Wallace Keft filed 11 May 2023.

[22] Exhibit SWK37 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 155.

[23] Exhibit SWK37 to the to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 154.

[24] Exhibit SWK41 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 269.

[25] Exhibit SWK41 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 272.

[26] Exhibit SWK42 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 281.

[27] Informal advice had been provided to the plaintiff's lawyers to that effect by email on 10 October 2019 from WorkCover's lawyers, which also noted that the plaintiff was going to deliver a report from Dr De Leacy.

[28] Exhibit SWK47 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 317.

[29] Exhibit SWK47 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 319.

[30] Exhibit SWK52 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 352.

[31] Exhibit SWK60 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 445.

[32] Connor v Queensland Rail Ltd [2016] QSC 270 at [10].

[33] [2016] QSC 270 at [12].

[35] Version current as at 1 January 2018.

[41] Exhibit SWK39 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 249.

[43] Exhibit SWK37 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 155.

[44] Relying on Bell v Australia Meat Holdings Pty Ltd [2003] QCA 209; Andersen v Aged Care Employers Self Insurance [2011] QSC 101; Muckermann v Skilled Group Limited [2013] 2 Qd R 47; Ley v Woolworths Limited [2013] QSC 59.

[45] [2014] QSC 83; [2015] 2 Qd R 296.

[48] Exhibit OS1 to the Affidavit of Omar Sarac filed 17 May 2023 at 2-3. That referral was dated 19 June 2019.

[49] Wingfoot Australia Partners Pty ltd v Kokac [2013] HCA 43; (2013) 252 CLR 480 at [47].

[50] Exhibit SWK37 to the to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 155.

[51] Exhibit SWK37 to the to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 159.

[52] Exhibit SWK41 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 272.

[53] (2001) QSC 331 at [13].

[54] [2016] QSC 17 at [4].

[55] (2013) 2 Qd R 47.

[56] (2013) 2 Qd R 4 at [26].

[57] (2013) 2 Qd R 47 at [26].

[58] (2013) 2 Qd R 47 at [26].

[59] [2003] QCA 209 at 5.

[60] [2011] QSC 101.

[61] (2013) 2 Qd R 47.

[62] (2013) 2 Qd R 47 at [24].

[63] (2013) 2 Qd R 47 at [31] drawing parallels to the reasoning of Dalton J in Andersen.

[64] [2014] QSC 83; [2015] 2 Qd R 296.

[65] Costello v Queensland Rail [2014] QSC 83; [2015] 2 Qd R 296 at [9].

[66] Costello v Queensland Rail [2014] QSC 83; [2015] 2 Qd R 296 at [7].

[67] Costello v Queensland Rail [2014] QSC 83; [2015] 2 Qd R 296 at [10].

[68] Costello v Queensland Rail [2014] QSC 83; [2015] 2 Qd R 296 at [12].

[69] Costello v Queensland Rail [2014] QSC 83; [2015] 2 Qd R 296 at [13].

[70] [2014] QSC 83; [2015] 2 Qd R 296.

[71] Exhibit SWK59 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 410.

[72] Exhibit SWK60 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 445.

[73] Barraclough v WorkCover Queensland [2012] QDC 321 at [54].

[74] Barraclough v WorkCover Queensland [2012] QDC 321 at [56].

[75] Exhibit SWK42 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 281.

[76] Exhibit SWK47 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 317.

[78] [2013] HCA 43; (2013) 252 CLR 480. That is made clear by [37] and [47]. In [47], the majority referred to the function of the Medical Panel being to "form and give its own opinion on the medical question referred for its opinion."