Gorry v Australia Meat Holdings Pty Ltd

[3] The plaintiff seeks an order under s.291 of the Act directing the plaintiff to comply with its obligation to make an assessment in respect of the injuries, the subject of the plaintiff's claim as required by Chapter 5 of the Act and in accordance with Part 9 of Chapter 3.

[4] The plaintiff was employed by the defendant at all relevant times as a meat worker.

[5] On 16th May 2002 she made application for compensation for an injury to the right shoulder and arm, said to have been sustained on 15 May 2002.

[6] As the application showed that she had seen a doctor at 8a.m. on the morning of that day it soon became apparent that there must have been some error and it became common ground that the injury occurred on 14 May 2002.

[7] The application was accompanied by a statement of the plaintiff. Paragraph 7 of that statement said as follows:

"The work system in place for my job on the chain is that the boners cut the loins from the body and throw them down on the workbench in front of me for slicing. After I slice and trim the loin I lift it up with both hands and place it on the packing belt behind me. On the days leading up to the 14 May 2002 I was working in front of a boner by the name of Allan Gillies who did not seem to be throwing the loins directly in front of me as he is supposed to. He was throwing them in front of the person to my left who was actually slicing fillets. As such I had to continually reach over with both hands and pull the loins over a hood where we throw the scraps onto the bone belt. This continually caused me to have to overstretch any body to get the loin in front of me. This also created a dangerous situation for the slicer next to me as I had my knife in my right hand on each occasion."

[8] By a document of 14 November 2003 the defendant gave a Notice of Assessment in relation to an injury described as:

aggravation of rotator cuff degeneration - right shoulder- nil

aggravation of degeneration in the A/C joint - right shoulder - nil

[9] Subsequently on 13 December 2004 the defendant wrote to the plaintiff informing her that the date of the event in the Notice of Assessment should have stated "over a period of time from 14 May 2002."

[10] By Notice of Claim for Damages of 18th January 2005 the plaintiff submitted a claim in relation to right shoulder and neck injuries said to have given rise to certain disabilities. The event said to have caused the injuries was stated to be over a period of time, namely 12 February 2002 to 14 May 2002.

[11] I should mention that there was a claim for psychological or psychiatric injury which was at a later date abandoned.

[12] By letter of 27 January 2005 the solicitors for the defendant wrote to the solicitors for the plaintiff noting that the Notice of Claim related to an event described as over a period of time from 12 February 2002 to 14 May 2002 and not to an event over a period of time from 14 May 2002. The letter went on to refer to matters of compliance of the Notice and to state that the defendant would consider the Notice of Claim as referring to an entitlement under s.253(1)(d) of the WorkCover Act which refers to a worker who has not lodged an application for compensation for the injury. The view was taken that this was a different injury because a different event is said to have given rise to it.

[13] There had been some correspondence between the parties as to the best way the plaintiff might act to preserve her position so far as the limitation period is concerned. Ultimately on 31 January 2005 orders were made by consent. Pursuant to these orders the plaintiff was granted leave to commence proceedings pursuant to s.305 notwithstanding non-compliance. The leave to proceed granted was in its terms described as being in relation to "personal injuries to her right shoulder and neck and an adjustment disorder with mixed anxiety and depressed mood alleged to have been sustained in the course of (the respondent's employment with the applicant) over a period of time from 12 May 2002 to 14 May 2002."

[14] In a subsequent letter to the plaintiff's solicitors dated 9 February 2005 the defendant stated:

"Please note your client may only seek damages for the alleged adjustment disorder with mixed anxiety and depressed mood neck and right shoulder from an alleged event occurring over a period time from 12 February 2002 to 14 May 2002 only if Australia Meat Holdings decides your client meets 273A(1) of the WorkCover Queensland Act 1996."

[15] In a document of 29 April 2005 the defendant issued a Notice of Assessment in respect of the following injuries:

Aggravation of pre-existing right shoulder rotator cuff tendonitis - zero per cent.

Temporary aggravation of pre-existing neck osteo-arthritis - zero percent

Adjustment disorder with depressed mood of mild severity in remission - zero per cent.

The date of the injury was stated to be 14 May 2002 to 19 November 2003.

[16] The plaintiff and her solicitors said that they did not receive this Notice of Assessment but nothing seems to turn on this so far as this application is concerned.

[17] On 13 May 2006 a Notice of Assessment was re-issued deleting the reference to the adjustment disorder and again showing the date of injury to be 14 May 2002 to 19 November 2003.

[18] By an accompanying letter the defendant informed the plaintiff that "based on your Notice of Claim and other evidence our decision is that you sustained an injury and that the injury occurred over a period of time from 14 May 2002 to 19 November 2003. The injuries were described in the letter.

[19] The solicitors for the plaintiff have objected to the Notice of Assessment in so far as it describes the injuries as having been suffered between May and September 2002 and have sought to have the defendant alter it.

[20] The defendant has refused to do so. The defendant through its solicitors has taken the position that it was entitled to make the assessment in the terms that it did and that the failure by the plaintiff to pursue any claim under the review provisions of the WorkCover legislation now means that the plaintiff must be taken to have accepted the assessment.

[21] In fact the plaintiff did seek to avail herself quite recently of the review process. There are undoubtedly time difficulties associated with any attempt to now invoke the Chapter 9 procedures.

[22] In making the application for review the plaintiff alleged that the defendant had issued a Notice of Assessment for the incorrect period of time. The review body took the view that it had no power to review a decision which it described as a failure to issue a Notice of Assessment for the correct period of time during which the injuries were sustained. No reasons were given for this conclusion. However its correctness or otherwise is not relevant to this matter.

[23] Before me, the defendant was inclined to contend that the wrong question had been asked. There has been no attempt to take the matter any further.

[24] The issue of a Notice of Assessment is of course critical to the scheme of the Act and a claimant's right to pursue an action for damages is dependent upon it.

[25] Section 253 of the Act limits the right to claim damages to certain categories of workers. The Act then goes on to make specific provision for claims for damages in the case of each of those categories.

[26] Here the defendant as I have said, takes the view that the plaintiff falls within section 253(1)(d), that is that he is a worker who has not lodged an application for compensation for the injury, the application for compensation being in respect of an injury which occurred on a specified date. I have already referred to the first Notice of Assessment and the subsequent amendment to it.

[27] The plaintiff advanced an argument that she came within section 253(1)(a)(ii). This provides for workers who have not received a Notice of Assessment for the injury (that is in respect of which damages are claimed) but has received a Notice of Assessment for an injury resulting from the same event and for the assessed injury the worker has a WRI of 20 percent or more or under section 255 the worker has elected to seek damages.

[28] It does not seem to me that this has any relevance here. There seems to be no doubt just the injuries concerned are injuries to the neck and shoulder. It is the event which gave rise to those injuries which is in contention.

[29] Section 273A (which forms part of Division 6 of Part 2 of Chapter 5) would then seem to be the relevant provision. It provides as follows:

(1) The claimant may seek damages for the injury onlyf WorkCover--

(i) was a worker when the injury was sustained; and

(ii) has sustained an injury; and

(b) gives the claimant a notice of assessment for the injury.

(2) For subsection (1)(c), WorkCover must have the degree of permanent impairment assessed under chapter 3, part 9 and give the claimant a notice of assessment.

(3) Chapter 3, part 9 applies to the assessment, but only for the purpose of assessing the degree of permanent impairment for the purposes of part 11.

(4) To remove any doubt, it is declared that the assessment does not give the claimant an entitlement to lump sum compensation under chapter 3, part 9, division 3133 for the injury.

(5) WorkCover must make a decision or decisions for the purpose of subsection (1)(b) within 3 months 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 WorkCover waives compliance with the requirements of section 280, with or without conditions; or

(c) a court makes a declaration under section 304

(6) WorkCover must notify the claimant and the claimant's employer of any decision it makes for the purpose of subsection (1)(b).

(7) If, for any injury, WorkCover decides that the claimant--

(a) was not a worker when the injury was sustained; or

(b) has not sustained an injury; the notification must include written reasons for the decision.

(8) If, for any injury, WorkCover does not make a decision for the purpose of subsection (1)(b) within the time mentioned in subsection (5), the claimant may have the failure to make a decision reviewed under chapter 9.

(9) A person aggrieved by a decision made by WorkCover for the purpose of subsection (1)(b) may have the decision reviewed under chapter 9.

(10) For any assessment mentioned in subsection (1)(c) made by WorkCover with which the person does not agree, section 204 applies.

[30] The issue it seems to me is whether the defendant in the discharge of the obligation imposed upon it by section 273A can issue an assessment in which it nominates a different event as having given rise to the injuries to that nominated by the plaintiff in the Notice of Claim. Failure to obtain a Notice of Assessment is fatal to a plaintiff's claim for damages and if a Notice of Assessment is given for an injury said to be the result of a different event to that nominated by the plaintiff then this will prevent the plaintiff pursuing a cause of action in respect of that injury. This was the position taken by the defendant before me and the plaintiff was not inclined to disagree. In its written outline the defendant said that whether the defendant was right or wrong on the issue of the event the decision which was made was one within its power to make. If the plaintiff was not satisfied with the decision then on the defendant's argument she had the right to have the decision reviewed under Chapter 9 and her failure to do so would be fatal. I have already referred to the attitude taken by the review body about the issue.

[31] Although the medical evidence was not placed before me it is clear that it has been exchanged. In a letter to the solicitors for the defendant the solicitors for the plaintiff referred to the contents of a report of an orthopaedic surgeon in support of the claim for the over a period of time event nominated by the plaintiff.

[32] The view which I take is that the obligation imposed upon the defendant when it considers the matters referred to in subsection 1(a) of section 273A for the purposes of the Notice of Assessment provided for in 273A(1)(b) requires the defendant to address the injury the subject of the claim and this necessarily involves the event said to give rise to the injury. A Notice of Assessment directed to that injury sustained in that event is to be given. There was no issue in this case that the plaintiff was a worker when the injury was sustained. It need hardly be said that a claimant has a right to identify and formulate his/her claim for the purposes of the Notice of Claim and the pursuit of a claim for damages.

[33] The failure of the defendant to do so here in my view constitutes non-compliance which enlivens the court's power under section 291.

[34] Given the attitude taken by the defendant to date, it may be that in any such Notice of Assessment the defendant would take the view that the plaintiff has not suffered any injury between February and May 2002 as claimed..

[35] In this event the matter of the plaintiff's right to pursue Chapter 9 would have to be considered again.

[36] To accede to the defendant's application would be to require the plaintiff to attend a mediation in relation to a claim that she does not seek to advance or, it can be inferred, have any evidence to support.

[37] I order that within 21 days the defendant provide a Notice of Assessment pursuant to the provisions of section 273A of the WorkCover Queensland Act 1996 as amended in relation to the injury which the plaintiff in her Notice of Claim dated 18 January 2005 alleges that she sustained between 12 February 2002 and 14 May 2002 in the course of her employment with the defendant .

[38] I will give the parties leave to make written submissions on the issue of costs within 14 days.