Otto v Mackay Sugar Ltd & Anor [2011] QSC 215

[1] Douglas J: The applicant wishes to seek common law damages from the respondent for personal injuries he says he developed at work over a period from September 2003 to 19 October 2009. He will be unable to seek those damages if he has previously lodged an application for compensation for "the injury"; see s 237(1)(d) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Act"). He did lodge an application for compensation which may have been sent by facsimile from his medical practitioner on 25 September 2009 and have been thrown away after its details were entered on WorkCover Queensland's computer system. The question is what is "the injury" referred to in that application. In my view it is the same injury as that for which he claims common law damages.

[2] There is a document disclosed by WorkCover to the applicant which is, on its face, an unsigned application for compensation in the applicant's name dated 1 October 2009 for injury to the lower back, "Trauma to muscles/tendon not classified". He does not recall filling out any paperwork for WorkCover and said he was educated to Grade 10 at school and relied on his employer to fill out the forms and the paperwork they needed.

[3] The form is inaccurate and inconsistent in a number of respects but seems likely to have originated in information supplied either by the applicant through his doctor's surgery or through his employer. One inaccuracy is the date shown for the commencement of his employment with the respondent, 10 June 2008, when it should have been on or about 6 September 2003. The inconsistencies appear from the answers to a number of questions on the form.

[4] Question 17 was: "When did the injury happen? If your injury happened over time, please go to question 18."

[5] The answer given was "13 February 2009, 12:00 am".

[6] Question 18 read: "Did your injury happen over a period of time?" and the answer given is "No" but, in answer to question 20: "How did the injury happen? Please explain what you were doing at the time of your injury and how your injury happened. (e.g. lifting steel rods from the floor to a bench)" the words "No specific injury time or date" appear, while the answer to question 24: "Have you previously suffered any similar injuries or conditions?" is "No".

[7] The employer's report of the incident also nominated 13 February 2009 at 12:00 am as the injury date and time and described the injury in similar terms to the application for compensation. In answer to question 16: "How did the injury happen? ..." it said "No specific injury time or date".

[8] The injury for which the applicant wishes to claim common law damages is described as back pain which he associated with work washing down cooling towers in early 2009. He said the pain improved during the slack period after the washing down work ceased in about February 2009. From about June, however, he began to experience more "niggling" pain in his back during the "crushing period", but was able to keep working until about 25 September 2009 when he woke with excruciating pain in his back and could not put his shoes on. He rang his employer's office and believes its safety representative came to his house and took him to see the doctor where he was given a medical certificate to the effect that he would require treatment from 25 September 2009 to 1 October 2009 which also said, however, that he was fit for suitable duties. Apparently, he performed such light duties until 19 October 2009 when he was told that his workers' compensation application had been rejected and that, because he was unable to be cleared medically to return to work, his employment was to be terminated immediately.

[9] The WorkCover officer who handled the workers' compensation claim made by the applicant swore an affidavit that was not challenged. He remembered the claim because of its unusual feature that the doctor, Dr Perumal, to whom it was referred formed the opinion that the claimed injury was not work related. The doctor's view was that the applicant's symptoms were due to the natural progression of an underlying condition.[1]

[10] Apart from the WorkCover officer's evidence about how claims were handled by WorkCover he also established that he made contemporaneous file notes of conversations he had with the applicant and a Mr Erwin from the employer company. He could not recall the conversations specifically but they record statements to him by the applicant that he had not indicated any particular event but that lots of things he did could have caused the injury. That was consistent with what the WorkCover officer had been told by Mr Erwin, that he could not pinpoint what had happened, or even an injury.

[11] It led the WorkCover officer to state in a letter of 19 October 2009 he wrote to the applicant rejecting his claim for workers' compensation that:[2]

"Contact was then made with yourself and you indicated that there was not a significant history of back issues but that you did have a back injury some 16 years ago whilst employed as a Sandblaster. You also confirmed that you could not attribute your injury to any specific event but that said, any number of activities you perform in your duties could have caused the injury.

Following this conversation it was determined that due to the non-specific nature of the cause of injury, and more so as a result of the report from Dr Perumal that your claim could not be accepted."

[12] An application for review of that decision was made on 16 September 2010 at least partly on the basis that the applicant's injuries occurred over a period of time so that any failure to identify a specific event was not relevant. That application for review was subsequently withdrawn on the basis that it related to a claim for a specific injury on 13 February 2009 rather than to a claim for an injury sustained over a period of time. That occurred after the applicant's solicitors received a copy, for the first time, of the form described as "application for compensation" which said, as I pointed out earlier, in answer to question 17: "When did the injury happen?", "13 February 2009". It also denied, in answer to question 18 that the injury happened over a period of time.

[13] There is no suggestion on the evidence before me that any particular event caused an injury to the applicant at 12:00 am on 13 February 2009. The suggestion in argument was that the time "12:00 am" may have been an arbitrary selection by a computer program for a field left blank. The reference to 13 February 2009 does not seem to be supported by anything concrete. The employer appears to have been told that the first time the applicant's back "flared up" was in February 2009 but no evidence linked that to a particular event or date.

[14] There is also evidence that Dr Perumal saw the applicant on 21 September 2009 when he complained of previous low back pain and pain in the left hamstring and that his work involved sitting in awkward positions.[3] This was relied on as suggesting that the applicant's complaint had always been one said to have occurred over a period of time.

[15] When one examines the available evidence, it is artificial, to my mind, to treat the workers' compensation application as referring to an event that actually happened on 13 February 2009. This conclusion is more readily available because nobody, including the applicant, has alleged that such an event occurred. The application, in referring to "no specific injury time or date" is itself equivocal and the evidence is that his complaints have consistently referred to a condition developed over time not linked to a particular event. In that context the description of the events leading to his injury in his application for review of the decision rejecting his claim for workers' compensation is only consistent with events that occurred over time.[4]

[16] In those circumstances the conclusion seems inevitable that the lower back injury for which he wanted workers' compensation is the same injury as that for which he now seeks common law damages, namely the back injury arising from his work over the period during 2009 described in his notice of claim for damages.[5]

[17] In other words, to decide that "the injury" referred to in the workers' compensation claim was not the same as the one sought to be litigated in the common law damages claim merely because the application for workers' compensation, which may not have been the applicant's own document, mistakenly nominated a specific date as the date of the injury would lead to an artificial result that ignored the true facts.

[18] The respondent also argued that the applicant should have pursued his statutory remedies instead of seeking the declaratory relief sought by this application. That argument was based on the existence of an internal review system within WorkCover under s 538 of the Act, then an external review to the Authority, Q-Comp, under s 541 and, from there, a further review to an industrial magistrate under s 548(b). I was not directed to any section purporting to limit the right to grant declaratory relief in this Court, although the existence of a statutory alternative remedy is certainly relevant to the issue whether I should exercise my discretion to grant such relief.[6]

[19] The applicant's submission was that there was no decision able to be reviewed pursuant to s 548 of the Act because it was made under ch 5 of the Act rather than chs 3 or 4 (see s 548(b)) and it was not a reviewable decision under s 540 of the Act as Q-Comp had no authority to review a decision that a person was not entitled to seek damages, having previously lodged an application for compensation for the injury.

[20] Q-Comp itself asserted that it had no such jurisdiction.[7] In the circumstances, therefore, if I had been satisfied that the factual basis had been made out, I would have been prepared to make an appropriate declaration.

[21] Because of my view about the nature of the injury complained of by the applicant, however, his application is dismissed.

[1] Ex CK 4 to the affidavit of Mr Kanther filed 28 June 2011.

[2] Ex CK 13 to the affidavit of Mr Kanther filed 28 June 2011.

[3] Ex SEH 11 to the affidavit of Ms Hartney filed by leave on 11 July 2011 at p. 40.

[4] See ex. CK6 to Mr Kanther's affidavit filed 28 June 2011 in section 5 "Details of grievance" and ex. SEH12 to the affidavit of Ms Hartney filed by leave on 11 July 2011 in the answer to question 38.

[5] See ex. CK7 to Mr Kanther's affidavit filed 28 June 2011 in the answer to question 38.

[6] See Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 427, 433-439, 450; Edwards v Santos Ltd [2011] HCA 8 at [36]- [39].

[7] See ex. CK26 to Mr Kanther's affidavit filed 28 June 2011.