Re Robinson [1999] QSC 11 (29 January 1999)

2. That failure to give the requisitions within thirty (30) days pursuant to s.282(2) of the WorkCover Queensland Act 1996 renders the Notice of Claim delivered to WorkCover Queensland on 04-11-98 compliant for the purposes of fulfilling the requirements under s.303 of the WorkCover Queensland Act 1996;

3. In the alternative, an Order and/or declaration under ss.304 or 305 of the WorkCover Queensland Act 1996 that the conditions required under s.303(a)(i) or (ii) of the WorkCover Queensland Act 1996 have been met.

2 There is no dispute as to the relevant background facts which can be stated as follows. Following the injury the applicant lodged an application for Workers' Compensation on 12 January 1998. On that application form he indicted that he had sustained an injury to his lower and middle back. The actual nature of the injury was left blank on the form. Subsequently medical certificates were lodged on the applicant's behalf stating that he was suffering from "lumbar strain". One certificate dated 28 May 1998 referred to "lumbar strain and painful feet", but the claim for compensation with respect to feet was rejected by the respondent. It is not entirely clear over what period Workers' Compensation was paid, but it would appear to have been paid at least up until May 1998. On 6 July 1998 the respondent forwarded to the applicant a Notice of Assessment of Permanent Impairment from Injury, as provided for by s.197 of the Act. That Notice informed the applicant that as a result of recent medical assessment it had been "determined you have not sustained permanent impairment from your injury. The degree of permanent impairment attributable to the injury ... is: 0%." The injury referred to in that notice was described as follows: "Musculo-Skeletal System Lumbosacral Spine". The applicant disagreed with that assessment of permanent impairment and invoked s.204 of the Act; thus the question of assessment of permanent impairment was referred to a Medical Assessment Tribunal. The applicant appeared before an Orthopaedic Assessment Tribunal on 1 September 1998; he was then represented by counsel and solicitor. That Tribunal determined that the applicant had not sustained any degree of permanent impairment and on 16 September 1998 a Notice of Assessment by the Medical Assessment Tribunal was issued to that effect. The injury thereon was described as "Lumbar Strain". That Notice also said: "This is a non-certificate injury". A "non-certificate injury" is defined in s.43 of the Act as including any injury that results in a work related impairment of a worker of less than 20%.

3 Section 253 of the Act places limitations on persons who are entitled to seek damages from the court; a Damages Certificate must be obtained. Two Damages Certificates were issued by the respondent, one dated 29 September 1998 and the other 16 October 1998. It is not clear why the two certificates in identical terms were issued. Those Certificates describe the injury as "Lumbar Strain", and stated that the degree of permanent impairment attributable to the injury was 0%. The Certificate also stated that it allowed "proceedings for damages for an injury to be commenced".

4 As this was a "non-certificate injury" s.259 of the Act applied; the applicant could "seek damages for the injury only after" receiving a notice of assessment.

5 As noted above the applicant then gave Notice of Claim for Damages in the prescribed form to the respondent pursuant to s.280 of the Act. In s.4 he gave particulars of "the injury" as follows:

6 Then in answer to the question what symptoms does the worker have as a result of the

7 Then in answer to the question as to how he was affected by the injury he gave the following particulars:

Can't play sports- fishing, motor sports, go-cart etc.

All aspects of life affected mentally and physically."

8 It will be immediately obvious that the injury and consequences therein particularised go well beyond an injury described as "lumbar strain" - a physical injury.

9 At this point it is important to note that the Act distinguishes between a "psychiatric or psychological injury" and "another injury". That is made clear by ss. 42 and 43 of the Act. It is significant that the Act provides that a psychiatric injury and another injury cannot be combined for purposes of assessing work related impairment.

10 Further, when one has regard to ss. 203, 204, 206, 207, 253 and 259 the inference is irresistible that the proceedings for damages can only be commenced in relation to an injury for which an assessment and certificate has issued.

11 It was immediately obvious to the respondent that, at least insofar as the Notice of claim for Damages referred to an arm injury and depression/anxiety, it was seriously defective because there had been no certificate granted relating thereto. In consequence on 9 November 1998 the respondent wrote to the solicitors for the applicant a letter stating so far as is material:

"I note that your Client has not made any claim for statutory benefits payments in respect to an arm injury, nor for depression/anxiety. Therefore before your Client can proceed with the claim for these injuries, it is necessary that he obtain a Damages Certificate from WorkCover. To this end I enclose a copy of an Application for Damages which should be completed and then sent to the Claims Officer at ..."

That letter appears to have crossed with one from the applicant's solicitors dated 6 November 1998 enclosing an "Application for Damages Certificate in respect of our client's psychological injuries". That Application gave details of the injury as follows: "Depression, anxiety, chronic pain syndrome" and stated that the injury was "psychological".

12 It should be noted that there was no mention therein of an arm injury.

13 To date no Damages Certificate has issued with respect to any psychiatric or psychological injury sustained by the applicant. The respondent must have an assessment made by a Medical Tribunal before issuing any such certificate (s.265(3)(c) and s.197(2)(b)).

14 On 7 December 1998 the applicant's solicitors wrote asserting that there had been no response to the Notice of Claim for Damages as required by the Act. The letter went on: "Accordingly, we note that our client's Notice is deemed to have complied with the Act". That was clearly a reference to s.282(2) of the Act which is in these terms:

"(2) WorkCover must, within 30 days after receiving the notice, give the claimant written notice -

(a) stating whether WorkCover is satisfied that the Notice of Claim complies with s.280 (a "complying notice of claim"); and

(b) if WorkCover is not to satisfied - identifying the non compliance and stating whether WorkCover waives compliance with the requirements; and

(c) if WorkCover does not waive compliance with the requirements - allowing the claimant a reasonable period of at least 30 days either to satisfy WorkCover that the claimant has complied with the requirements or take reasonable action to remedy the non compliance."

Then by letter dated 8 December 1998 the respondent identified a number of specific respects in which it said there had been non compliance by the applicant with s.280 of the Act. It is not necessary to set out that detail here. The applicant's solicitor replied by letter of 9 December 1998 asserting that it was too late on 8 December 1998 for the respondent to give such requisitions. The letter went on:

"In the circumstances, your requisition are out of time and you are not entitled to deliver same. Accordingly, as previously advised, we contend that our client's notice has complied with the Act or alternatively, that you have waived compliance by failing to deliver requisitions within time."

15 The respondent disputes those assertions made by the applicant, and in particular contends that its letter of 9 November 1998 (admittedly within the 30 day period) constituted a notice pursuant to s.282(2)(b) identifying non compliance with a critical provision. The applicant disputes that the letter of 9 November can be so regarded.

16 The submission by counsel for the applicant was that the letter from the respondent of 9 November 1998 "cannot possibly be a notice pursuant to s.282". That submission was based on the contention that the letter did not have "the requisite elements to satisfy the section". In the course of argument counsel particularised four ways in which he said that letter did not meet the requirements of s.282(2):

"(i) It doesn't state whether WorkCover is satisfied that the notice of claim complies with s.280 of the Act (as required by s.282(2)(a);

(ii) It doesn't identify any area of non-compliance nor state whether WorkCover waives compliance with the requirements (as required by s.282(2)(b);

(iii) It doesn't specify any period of time within which the claimant has to satisfy WorkCover that he has remedied the alleged non-compliance (as required by s.282(2)(c);

(iv) It doesn't refer in any way to ss. 280 or 282 of the Act."

17 Section 282 does not prescribe any particular form for the response from the respondent. In my view it is sufficient if it draws attention of the applicant to an area of non-compliance in the Notice served under s.280 and requires that defect to be remedied. Here, in my view, there was a serious fundamental flaw in the applicant's Notice. Because it sought to combine a physical injury to the lumbar area with respect to which a Damages Certificate had issued with a psychological injury with respect to which no Damages Certificate had issued (leaving aside any question of a claim with respect to an arm injury) the Notice was fatally flawed. It was not for the respondent to distill from the contents of the Notice what could proceed as a proper claim for common law damages. The letter drew attention to the non-compliance, a matter which by then had occurred to the applicant's solicitors. Unless and until a Damages Certificate has issued with respect to the psychological injury there is no basis for a claim such as that purportedly made by the Notice of 4 November. The letter clearly requires the defect to be remedied and gave some assistance to the applicant in that regard. The absence of a stated specified time within which the defect was to be remedied does not in the circumstances deprive the letter of the character of a response pursuant to s.282(2). The non-compliance is so serious that in essence the Notice is a nullity and the applicant must start over again. The applicant must either issue a further Notice under s.280 relying only on a lumbar spine injury or must await the receipt of a Damages Certificate with respect to psychological injury before issuing a further Notice pursuant to s.280.

18 It is clear in my view that the applicant is caught by s.253(1)(c) of the Act; he is a worker who has not lodged an application for compensation for psychological injury. He may seek damages, but only if he is provided with a certificate under s.265 of the Act with respect to psychological injury.

19 Counsel for the applicant submitted that the respondent's contention that the letter of 9 November 1998 was a notice given pursuant to s.282(2) was "a blatant attempt to thwart the stated intention of the legislature". I cannot see that. If anything I would be inclined to the view that the application was a blatant attempt by the applicant to secure some unmeritorious advantage.

20 Because of my conclusion that the letter of 9 November 1998 constituted a response within s.282(2) it is not necessary for me to consider whether or not a failure by WorkCover to respond within the 30 day period has the consequence that the s. 280 Notice is deemed to be a complying notice. I would prefer to leave that question to be decided until facts are properly established calling for a determination of that issue.

21 The letter of 8 December 1998 draws attention to specific areas of non-compliance. It may be regarded as supplementary to the notice of fundamental non-compliance given on 9 November. If, as I consider, the Notice of 4 November is ineffectual until remedied no problem is created by the respondent drawing attention in the later letter to those other matters. They undoubtedly will be addressed when a complying notice is delivered.

22 Both parties agreed that notwithstanding s.325 of the Act the successful party should obtain an order for costs.

23 In the circumstances the application should be dismissed with costs.