Parnell v WorkCover Queensland

[2] For the purpose of this application there are no disputed facts although the respondent disputes the nature of the claim and denies that the applicant has suffered psychiatric injury consequent upon her work-related injury. The applicant was employed as a process worker in a factory in Sherwood. On 29 July 2003 in the course of her employment she tripped over the protruding leg of a whiteboard and fell. She sustained injuries to her right shoulder, left knee and thigh, a laceration to her lip and bruising to the right side of her face. On or about 7 August 2003 the applicant lodged a claim for workers' compensation with the respondent pursuant to the Workcover Queensland Act 1996 in respect of the physical injuries described above.

[3] On 30 May 2004 the respondent issued the applicant with a notice of assessment pursuant to s 185(1) of the WCRA assessing her permanent impairment at zero per cent and her work related impairment as nil. The applicant sought referral to the Medical Assessment Tribunal. After hearings by that Tribunal and the Orthopaedic Assessment Tribunal the respondent issued a further notice of assessment to the applicant on 19 August 2004 assessing her right shoulder impairment at two per cent, her left knee at zero per cent, scarring to her lip at one per cent and a work-related impairment of 2.1 per cent.

[4] Pursuant to s 187 of the WCRA the respondent made a lump sum offer of $3,388.15 to the applicant which she elected to accept on 27 August 2004. The applicant alleged that she accepted the advice of a workplace health management consultant engaged by her employer to advise and assist its workers in their claims. Although not relevant to the construction of the WCRA with which this application is concerned, for completeness, it may be noted that the applicant has sued that person and the employer for damages for negligent advice and/or pursuant to the Fair Trading Act 1989 in this court.

[5] On 26 April 2006 the applicant lodged a notice of claim for damages pursuant to s 275 of the WCRA in respect of a psychiatric injury said to have arisen as a consequence of the physical injuries sustained on 29 July 2003. The injury was described in her application in the following way:

"Injury to right shoulder resulting in a psychiatric injury namely depression"

"The injury claimed is an unassessed injury. The claimant has not previously lodged any claim for compensation for psychiatric injury."

Under the heading "Nature of Injury" appeared "Depression Chronic Pain Syndrome".

The applicant attached medical reports from a number of medical practitioners relating to the alleged psychiatric/psychological injury. The applicant claimed that she was, as a consequence of her psychiatric/psychological injury, totally incapacitated for work. A report from Dr JC Tuffley, orthopaedic surgeon, to the respondent dated 23 January 2004 makes reference to "abnormal illness behaviour", "poor pain management capacity" and "from a psychological point of view [the applicant] was demonstrating an incapacity for normal employment".

[6] By letter dated 15 May 2006 the respondent acknowledged that the notice of claim was compliant. The writer noted that the applicant had not received a notice of assessment from the respondent and was therefore not entitled, pursuant to s 258(1)(b), to seek damages until she received a notice of assessment. The respondent briefed the matter to outside solicitors who wrote on 5 June 2006 that the applicant had no entitlement to seek damages for psychiatric/psychological injury because she failed to satisfy the requirements of s 237 of the WCRA. Hence this application.

[7] The applicant claims to be a person entitled to seek damages for her psychiatric/psychological injury pursuant to s 237(1)(d) because her alleged injury is an injury distinct from her physical injury and she has not lodged an application for compensation in respect of it. The respondent contends that since the applicant has elected to accept the lump sum compensation offer in respect of her physical injuries arising out of the same event she is precluded on a proper reading of s 237 from seeking damages for her alleged psychiatric/psychological injury.

[8] Section 237 appears in Chapter 5 Access to Damages, Part 2 Entitlement Conditions. All the provisions in Chapter 5 are provisions of substantive law. Section 237 provides:

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

(a) the worker, if the 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 WRI of 20% or more or, under section 239, the worker has elected to seek damages; or

(b) the worker, if the worker's application for compensation was allowed and the injury has not been assessed for permanent impairment; or

(c) the worker, if-

(i) the worker has lodged an application, for compensation for the injury, that is or has been the

subject of a review or appeal under chapter 13; and

(ii) the application has not been decided in or following the review or appeal; or

(d) the worker, if the worker has not lodged an application for compensation for the injury; or

(e) a dependant of the deceased worker, if the injury results in the worker's death.

(2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.

(3) If a worker-

(a) is required under section 239 to make an election to seek damages for an injury; and

(b) has accepted an offer of payment of lump sum compensation

under chapter 3, part 10, division 3 for the injury;

the worker is not entitled under subsection (1)(a)(ii) to seek damages.

(4) However, subsection (3) does not prevent a worker from seeking damages under section 266.

(5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker."

[9] An analogous provision was first introduced to workers' compensation legislation in the Workers' Compensation Queensland Act 1996 by the Workers' Compensation Queensland Amendment Bill (2001) as s 253(1). That amending Act introduced many substantial changes to the original Act. Prior thereto there had been no provision enabling a worker to seek damages for multiple injuries arising out of the one event when not all had been assessed. The Explanatory Notes to the Amendment Bill relevantly state that:

"The Bill replaces s 253(1)(a) with a new provision stating that a worker will be entitled to seek damages if the worker:

• has received a notice of assessment from WorkCover for the injury; or

• has not received a notice of assessment for the injury but has:

(a) received a notice of assessment for any injury resulting from the same event, and

(b) for the assessed injury, the worker has elected or is taken to have elected to seek damages and, under s 255 of the WorkCover Queensland Act 1996, can not change the election."

It is intended that this amendment allow a worker to be entitled to seek damages where not all of the injuries resulting from an event have been assessed. However it is intended that in order to seek damages the worker must have received a notice of assessment for at least one of the injuries resulting from the same event. But if a worker has received a notice assessment and accepted a lump sum compensation under Chapter 3, part 9, division 3 for an injury, the worker is not entitled under subsection 253(1)(a)(ii) or otherwise to seek damages for any injury resulting from the same event ..."

[10] In the Bill itself, by clause 18, s 253 (2A) was inserted and provided:

"(2A) If a worker has accepted an offer of lump sum compensation under chapter 3, part 9, division 3 for an injury, the worker is not entitled, under subsection (1)(a)(ii) or otherwise, to seek damages for any injury resulting from the same event."

This proposed provision is reflective of the Explanatory Notes to the Bill. However, and without further explanation, s 18 of the WorkCover Queensland Amendment Act 2001 did not include s 253(2A) in amended s 253 (or at all). It was reflected in part in new s 253(3). It does not contain the absolute words of prohibition "or otherwise" and "for any injury resulting from the same event" which were included in the Bill. The amendment as passed reads:

"(3) If a worker -

(a) is required under s 255 to make an election to seek damages for an injury; and

(b) has accepted an offer of payment of lump sum compensation under chapter 3, part 9, division 3 for the injury;

the worker is not entitled under subsection (1)(a)(ii) to seek damages ."

That is the form in which that provision appears in the WCRA in s 237(3). The Explanatory Notes to the Workers' Compensation Queensland Act 1996 and the legislation as passed are not the same. It remains to be seen whether the differences affect the meaning to be given to s 237 on the basis that although different legislation it concerns the same subject matter and is in the same terms.

[11] The starting point in construing s 237 must be to read the section as a whole and in the context of the entirety of the Act, Attorney-General v Prince Augustus of Hanover [1957] AC 436 at 461 and 467. The applicant is entitled to seek damages for her alleged psychiatric/psychological injury if she can bring herself within the criteria set out in any one of the subparagraphs of s 237(1). That that is so is plain from s 237(1) itself and emphasized in s 237(5) (to remove any doubt "subsection (1) abolishes any entitlement of the person not mentioned in the subsection to seek damages for any injury sustained by a worker").

"(1) An event is anything that results in injury, including a latent onset injury, to a worker.

(2) ...

(3) A worker may sustain 1 or multiple injuries as a result of an event whether the injury happens or injuries happen immediately or over a period.

(4) If multiple injuries result from an event, they are taken to have happened in 1 event."

"(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

..."

[14] Various provisions in the WCRA differentiate between psychiatric/psychological injury arising from an event and other physical injury. A number of single judge decisions recognize that there must be an assessment by the respondent of a psychiatric/psychological injury before it may be joined with other injury in an action for common law damages resulting from an event, Anagnostou v Woolworths Ltd [2000] QSC 160; [2001] 2 Qd R 1 and the decisions referred to by Williams J (as his Honour then was) at 5.

[15] Mr McMeekin SC for the respondent submits that the applicant has an exaggerated response to her pain and there is no clear medical evidence that her symptoms constitute a discrete psychiatric injury. For the purpose of this application that matter cannot be tested. He submits that WCRA does not intend that psychiatric/psychological symptoms consequent upon a physical injury should be treated as a separate injury and finds support for that conclusion in ss 245(3) and 258(1). Those provisions provide that a claimant may seek damages for the injury only if the insurer decides that the claimant was a worker when the injury was sustained and has sustained an injury. I am not satisfied that those provisions assist the argument. The Act does distinguish between the two kinds of injury, see, for example, ss 32(5), 188(1), 189(1) and 192(3) and the definition of "injury" does not support the respondent's submission.

[16] The applicant maintains that "the injury" is her alleged psychiatric/psychological injury and with that in mind the question is, does she come within any of the criteria in s 237?

•

Section 237(1)(a): the applicant has not received a notice of assessment from the respondent for the injury and does not come within s 237(1)(a)(i). While she has not received a notice of assessment for the injury she has received a notice of assessment for "any" injury, that is, her physical injury resulting from the same event, but has neither a WRI of 20 per cent or more or elected to seek damages. Accordingly she does not come within s 237(1)(a)(ii); reference is made to s 237(3) which confirms that where a worker is required to make an election to seek damages and has accepted an offer of payment of lump sum compensation she is not entitled under subsection (1)(a)(ii) to seek damages.

•

Section 237(1)(b),(c) and (e) are not applicable.

•

Section 237(1)(d) is said by the applicant to entitle her to seek damages. She maintains that she has not lodged an application for compensation for her psychiatric/psychological injury and therefore fulfils the criterion in that provision.

[17] Mr McMeekin submits that s 237(1)(d) cannot be read in isolation and must be read together with s 237(1)(a)(ii) and (3). He contends that if the applicant is correct, then s 237(1)(a)(ii) has no purpose because it would not matter if a worker had elected to seek damages or not if there were multiple injuries arising from one event. That will only be the case if, for the assessed injury, the worker has a WRI of less than 20 per cent. Mr McMeekin contends that the applicant's approach to s 237(1)(d) ignores subsection (3). He directs attention to the requirement in s 237(3) that the worker who is required to make an election to seek damages does so for "an injury" and accepts a lump sum compensation offer for "the injury" (emphasis added). He contends that if the applicant were right about s 237(1)(d), s 237(3) would read "the injury" rather than "an injury" and the concluding words should have the addition of "for the injury in respect of which the worker has accepted the lump sum". I am not persuaded by this argument.

[18] Any harshness resulting from an acceptance of compensation when other symptoms emerge is ameliorated by s 266 which is expressly mentioned in s 237(4). But counsel agree that that provision would not avail the applicant because she has a WRI of less than 20 per cent. In short, Mr McMeekin submits that when read in context, s 237(1)(d) is intended to cover the case of a worker who has been injured in an event and has not lodged an application for compensation for any injury arising out of that event. The difficulty with that construction is that I am not persuaded that it is what s 237(1)(d) actually says.

[19] Mr McMeekin's further submissions refer to the objects of the WCRA. He submits that the advantage of the lump sum offer/election provisions are undermined if an applicant in the position of this applicant is able to accept a lump sum and then seek damages in respect of another injury arising out of the same event. If a worker has a WRI of 20 per cent or more then the worker is entitled both to a lump sum and damages, ss 188 and 239. One can discern a policy that where a worker's injuries are relatively minor, having accepted the lump sum, the worker is precluded from seeking further damages in respect of that injury or other injuries arising out of the one event. It is, of course, appropriate and convenient that all injuries should be dealt with at the one time, Conway v WorkCover Queensland [2000] QSC 406 at paras 18 and 19_._ But that overall policy cannot be used to depart from the plain meaning of the words. If construed literally s 237(1)(d) entitles the applicant to seek damages for her alleged psychiatric/psychological injury. The prohibition in s 237(3) is directed to s 237(1)(a)(ii) and relates to the injury for which an offer of compensation had been made and accepted.

[20] If the legislature had intended s 237(1)(d) to have the meaning contended for by the respondent it could have introduced the words which were included in clause 18 of s 253(1)(a) of the WorkCover Queensland Amendment Bill 2001. It did not do so and the provision contains no words of limitation. The sentiments expressed recently in the Court of Appeal in Kriz v King [2006] QCA 351 (15 September 2006) that common law rights ought not be read down unless expressed legislatively by clear words are applicable here. The applicant will be precluded from pursuing common law damages for this alleged psychiatric/psychological injury on the construction contended for by the respondent. The opposite construction does not lead to an absurd result. Other provisions are not rendered meaningless. The legislature could have expressed the intention the respondent contends for without difficulty. Accordingly the applicant is entitled to seek damages for her alleged psychiatric/psychological injury.