Kelly v Croft Sheetmetal Manufacturing Pty Ltd & WorkCover [2002] QSC 412

[2] The plaintiff's claim relates to a condition of epicondylitis in his right arm which manifested itself to the plaintiff by an episode of pain commencing in or about March 2001. The plaintiff continued to work after experiencing pain but ceased on 18 April 2001. He returned to work on light duties on 16 August 2001. On 10 October 2001 he made an Application for Workers' Compensation[1].

[3] Upon noticing pain in his right arm in March 2001 the applicant consulted his general practitioner Dr. Nick Kokaidus. The initial, conservative treatment included injections and physiotherapy. In November 2001 Dr. Kokaidus referred the applicant to an orthopaedic specialist, Dr. Mansfield, who initiated further conservative treatment and then suggested surgery which was undertaken on 15 November 2001.

[4] Medical reports were obtained by WorkCover from Dr. C. Crilly dated 7 November 2001, from Dr. M. Mansfield dated 28 February 2002 and from Dr. D. Milroy, orthopaedic surgeon, dated 26 March 2002 and 1 August 2002[2]. There is some inconsistency among the reports as to the date on which the plaintiff's pain first manifested itself. Dr. Crilly notes that the pain started in June 2001. Dr. Mansfield fixes the date as April 2000 but the history taken by Dr. Milroy records the onset of pain as occurring in March 2001.

[5] It seems this inconsistency in reporting the date of onset of pain has caused some difficulty for the WorkCover assessors and, more particularly, has made it unclear as to when the work activities so commenced to impact on the plaintiff's body as to give rise to injury.

[6] The Notice in its Section 3 detailed the following questions and answers:-

"Details of the event resulting in the `injury'

33. Where did the event happen? (e.g. workshop floor, Smith Street, Bulimba)

34. Completely describe the details of the event resulting in the injury (Attach supplementary pages/s if necessary)

Work Practices over a period of time"[3]

[7] Following the receipt of the Notice solicitors for WorkCover required further answer to questions 32 and 34 above. In particular they wished to know the period of time over which the injury is alleged to have occurred and the nature of the work or event which caused the injury. WorkCover relied on Regulation 74 (1)(b) which requires full particulars of the event to be given in the Notice.

[8] On 31 July 2002 the applicant made a statutory declaration verifying the nature of the information available to him for the purpose of making a compliant Notice of Claim for Damages. Relevantly he declared -

"...I do not know and nobody has told me over what period of time my injury has occurred...None of the doctors who have examined or treated me have provided me with an explanation as to what event caused my injury. All I know is I turned up for work and I did the work I was asked to do over 14 years and approximately two years ago I felt pain in my elbow. I have consulted a number of doctors for advice and treatment. I believe that my Solicitors intend to obtain engineering and medical evidence to answer those questions. I have no medical or engineering qualifications to answer those questions."[4]

The doctors referred to are the ones from whom WorkCover has obtained reports.

[9] Following the receipt of the applicant's declaration, further correspondence was entered into between the solicitors for the parties. This correspondence outlines WorkCover's contention that the Notice was non-complying because the applicant failed "to provide either a date of the alleged injury or the period of time over which it is alleged that injury occurred."[5]

[10] One source of the confusion for WorkCover appears to arise from the applicant's answers in his Application for Workers' Compensation. When completing the Application the applicant was required by Regulation 48 of the WorkCover Queensland Regulation 1997 to give, to the extent WorkCover reasonably required it, proof of injury and its cause. The information required is to a large degree controlled by the questions in the approved form.[6] The applicant's answers to questions 24 and 25 are as follows:-

24. When did the injury happen? (If your injury happened over time please go to question 25)

25. Did your injury happen over a period of time?

a) When did you first experience symptoms? ..../.../...

b) When did you first see a doctor?...../..../..."[7]

[11] The applicant's answering of the above questions is inconsistent and incomplete. In part this was probably the result of the layman confusing symptoms with injury. The applicant did not have access to the medical reports which were available to WorkCover when making its assessment. However, by his declaration, the applicant has not only furnished the answers, which were not provided for in the above questions in the application for compensation, but has also provided further information about the onset of pain and the basis for linking the injury to work practices. These medical reports, whilst revealing a measure of uncertainty as to the timing of the injury, do not in any way suggest that any particular task or task had caused the injury. On the contrary, each suggested an injury which had developed over a period of time.

[12] It is abundantly clear from the application for Workers' Compensation and from the Notice, the declaration and the medical reports, that it was the claimant's work activities over a period of time which were the major cause of his right lateral epicondylitis. Thus "the event" in respect of which the plaintiff seeks to claim damages is a continuous or repeated exposure to his work conditions. "Injury" for the purpose of the Act is defined by s 34 to be a "personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury".

[13] On 15 May 2002 WorkCover issued a Notice of Assessment ("the Assessment") which made reference to the date of injury as being 15 April 2001. The reference to that date is consistent with one part of the Application for Workers' Compensation, but inconsistent with another part and inconsistent with the Notice and all other evidence.

[14] WorkCover argues that the applicant's right to claim damages is now constrained by the manner in which WorkCover framed the Notice of Assessment, namely, for a right elbow injury sustained on 15 April 2001. WorkCover further argues that as the applicant has not been given a Notice of Assessment for an injury which occurred "over time" he has no right to claim for such an injury and that s 253(3) "abolishes any entitlement" for the applicant to seek damages in respect of such an injury.

[15] The Assessment makes no reference to the qualifying description in the compensation application that the injury was one happening "over a period of time". The Assessment was issued only after WorkCover had received the opinions of medical practitioners. Putting to one side inconsistency as to the date of the first onset of pain, Dr. Crilly referred to the applicant as developing "some pain in his right lateral elbow over a period of time". Dr. Mansfield considered that the applicant "developed a tennis elbow which came on with his heavy work as a sheet metal worker". Dr. Milroy, in his first report, described the plaintiff as having suffered from right lateral epicondylitis (tennis elbow) which "became chronic".[8]

[16] The Assessment adopted this common diagnosis and also Dr. Milroy's assessment of the permanent impairment of 2 per cent of the right upper limb (PI Code No. 1302). In a later report Dr. Milroy confirmed his opinion, in broader terms, saying that the applicant's "work activities as a sheet metal worker over a period of time are the major cause of his right lateral epicondylitis". (my emphasis)[9] The Assessment based on those opinions, as they are to be understood, could not be viewed accurately as referring to a single event. All the evidence points to an injury occurring over a "period of time".

[17] The terms of the Assessment must be seen against the factual background in which WorkCover's assessment had to have been made. The plaintiff's failure to complete question 25(a) and (b) would have justifiably been a matter of complaint for WorkCover when considering the application for statutory compensation, but the information was certainly available in the notice, the declaration and the medical reports which it had in its possession at the time of making the assessment. Those omissions in question 25 did not justify WorkCover in resolving the inconsistency by determining that the plaintiff's injury was caused by a single event on 15 April 2001. Nor does that error, in my view, justify WorkCover now contending that the Notice of Assessment precludes the applicant from claiming damages in respect of an injury over time. WorkCover cannot rely upon its own error, in construing the application for compensation, to hold that the later Notice of Claim for Damages is non-compliant.

[18] In Kin Ying Lau v WorkCover Queensland[10] the Court of Appeal considered the correctness of WorkCover's refusal to accept a notice as a complying Notice of Claim in circumstances where a non-assessed injury, initially included in a Notice of Claim, was subsequently abandoned. There the Court of Appeal had to consider whether WorkCover's erroneous determination that a Notice of Claim was non-complying was nonetheless conclusive of that point. The Court of Appeal by majority (McPherson JA and Byrne J) held:-

"Literally construed, the material words are opposed to WorkCover's interpretation. Section 282(2)(a) does not in terms stipulate that a notice of claim which WorkCover "is satisfied ... complies with section 280" constitutes a "complying notice of claim". Instead of defining the expression "complying notice of claim" in that way, the provision requires WorkCover to give "a written notice" to a claimant who notifies an intention to prosecute a damages claim. That notice must state "whether WorkCover is satisfied that the notice of claim complies with section 280..." The succeeding parenthetical expression, "a complying notice of claim", therefore appears to be grammatically referable to a document that "complies with section 280" rather than to WorkCover's state of mind.

So to construe s 282(2)(a) would accord with the regime s 282 establishes. Where WorkCover notifies its satisfaction that s 280 has been complied with, it will be held to that determination. If not so satisfied, WorkCover is to identify "the non-compliance" and choose whether to waive the non-compliance, and if not, ss 282(2)(c) and (3) state the consequences.

A literal interpretation also makes s 282(4) capable of sensible operation.

The interpretation for which WorkCover contends is not needed to implement the legislative intention emerging from the statutory scheme.

The preferable interpretation of s 282 therefore permits the grant of declaratory relief determining that the appellant's notice of claim was a "complying notice of claim" within the meaning of that expression in s 308(1)(a)."

[19] The applicant's documents and the opinions expressed in the medical reports lead only to the conclusion that the applicant suffered a work related injury over a period of time and not an injury following a single event. The applicant has declared he cannot himself state when the injury occurred, as distinct from when symptoms became manifest. He himself cannot explain the mechanism of the onset of the injury.

[20] I am satisfied that the answers given by the applicant as to the cause of his injury are the best that he can provide. The applicant's advisors have signalled an intention to obtain expert reports in the course of preparing for trial and those reports will be provided to the opposing parties. But the applicant's access to the Court should not be conditional upon his undertaking preparation at this level in order to seek WorkCover's acknowledgement of compliance with the Notice provisions.

[21] However the applicant appears to have made inconsistent statements about the onset of pain in his right arm. If the timing of injury and its relationship to the work tasks are to be understood, it will be necessary for the applicant to clarify the inconsistencies by detailing, in a further declaration, a history of the symptoms experienced by him in his right arm noting, particularly, the time of the first onset and the time when the symptoms reached a level to be regarded as disabling. Whilst I am satisfied that the applicant has responded to the questions as he understood them to the best of his ability, it is appropriate that any declaration be subject to a condition that he clarifies and makes consistent his complaints about the onset of pain.

1. A declaration pursuant to s 304 WorkCover Queensland Act 1996 that the applicant is taken to have remedied non-compliance with the requirements of s 280 of the Act on the condition that he provide a further declaration identifying the dates or periods during which he first experienced symptoms of injury in his right arm and the dates or periods of time when such symptoms caused the applicant to become disabled.

2. The costs of and incidental to this application will be the applicant's costs in the cause.

[1] Ex "YJM 1" to affidavit of Yvette McLaughlin 14.10.02

[2] Ex "CJP 1" to affidavit of Colin Patmo 7.10.02

[3] Ex "CJP2" to affidavit of Colin Patmo 7.10.02

[4] Ex "CJP4" to affidavit of Colin Patmo 7.10.02

[5] Ex "CJP5" to affidavit of Colin Patmo 7.10.02

[6] The application form was approved on 30 July 2001 pursuant to s 532 of the Act.

[7] Ex "YJM1" to affidavit of Yvette McLaughlin 14.10.02

[8] Ex "CJP1" to affidavit of Colin Patmo 7.10.02

[9] Ex "CJP1" to affidavit of Colin Patmo 7.10.02

[10] (2002) QCA 244 at paras [48] - [52]