PB v WorkCover Queensland Pty Ltd - [2018] QCAT 138

CITATION:	PB v WorkCover Queensland Pty Ltd [2018] QCAT 138
PARTIES:	PB (Applicant)
v
Workcover Queensland Pty Ltd (Respondent)
APPLICATION NUMBER:	OCL045-17
MATTER TYPE:	Other civil dispute matters
HEARING DATE:	30 April 2018 to 1 May 2018
HEARD AT:	Brisbane
DECISION OF:	Member Cranwell
DELIVERED ON:	4 May 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The complaint that WorkCover Queensland Pty Ltd breached information privacy principles 1, 2, 3, 4 and 11 is substantiated. 2. The complaint that WorkCover Queensland Pty Ltd breached information privacy principles 7, 8, 9 and 10 is not substantiated and is dismissed. 3. In the event WorkCover Queensland Pty Ltd has any of the original medical records obtained from the Mackay GP Superclinic and Fenner Family Medicine in its possession, it must return them to the respective practices. 4. WorkCover Queensland Pty Ltd must pay PB compensation in the amount of $5,000 within 28 days of the date of this order. 5. There is no order as to costs. 6. The Tribunal prohibits the publication of any information that may enable PB to be identified.
CATCHWORDS:	HUMAN RIGHTS – PRIVACY LEGISLATION – where incorrect letter used to obtain medical records – whether payment of compensation should be ordered Information Privacy Act 2009 (Qld), s 176, s 178, Schedule 3 Public Records Act 2002 (Qld), s 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 275, s 279, s 381, s 532C, s 544, s 545, s 586 JL v Queensland Police Service [2014] QCAT 623 JM v Queensland Police Service [2017] QCAT 71
APPEARANCES:
APPLICANT:	CB
RESPONDENT:	D van Brunschot of DWF (Australia)

REASONS FOR DECISION

On 23 June 2017, a privacy complaint made by PB was referred to the Tribunal under s 176 of the Information Privacy Act 2009 (Qld) (the IPA). The complaint was made against WorkCover Queensland Pty Ltd (WorkCover).
The statements made in the preceding paragraph, as obvious and straightforward as they are, serve to limit the scope of the proceedings in two important respects:
(a)The respondent in the proceeding is WorkCover, a body corporate established under s 381 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the WCRA). In particular, the Regulator (formerly known as Q-Comp) and PB’s employer are not named as respondents.
(b)The proceeding before the Tribunal is a referral under the IPA. It is not an appeal of the rejection of PB’s workers’ compensation claim, noting that PB had a right of appeal to the Queensland Industrial Relations Commission. The Commission refused an application by PB to extend time on 2 September 2015. The proceeding is also not an application for unfair dismissal, nor is it a referral to the Tribunal under the Anti-Discrimination Act 1991 (Qld).
In the referral lodged with the Tribunal, PB has sought the maximum compensation payable for a breach of privacy along with his costs.
Factual background
It is apparent from the relevant factual background to PB’s privacy complaint…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCAT 138
Decision Date: 4 May 2018

CaseChat Overview and Summary

PB brought a claim against WorkCover Queensland Pty Ltd in the Queensland Civil and Administrative Tribunal, seeking compensation and costs for a breach of privacy. The claim arose from WorkCover’s handling of PB’s workers’ compensation application, during which they made several errors in recording PB’s personal and medical information. The errors included misidentifying PB’s occupation, recording the incorrect date of injury, and inaccurately describing his medical condition. WorkCover also failed to properly handle PB’s medical records obtained from his GP practices. The Tribunal was required to determine whether WorkCover had breached the privacy principles outlined in the Information Privacy Act 2009 (Qld) and, if so, what compensation should be awarded.

The Tribunal found that WorkCover had indeed breached several privacy principles, including principles 1, 2, 3, 4 and 11. These breaches related to the collection, use, storage, and disclosure of PB’s personal information. However, the Tribunal did not find that WorkCover had breached principles 7, 8, 9 and 10. The Tribunal ordered WorkCover to return any original medical records to the relevant GP practices, to pay PB compensation of $5,000 within 28 days, and prohibited the publication of any information that could identify PB. The Tribunal did not make an order as to costs.

The Tribunal's decision highlights the importance of accurate record-keeping and proper handling of personal information in workers' compensation claims. WorkCover's errors not only caused distress to PB but also led to a breach of privacy legislation. The compensation awarded reflects the seriousness of the breaches and the need for greater care in handling sensitive information.

Orders

Orders of the court

1. The complaint that WorkCover Queensland Pty Ltd breached information privacy principles 1, 2, 3, 4 and 11 is substantiated.

2. The complaint that WorkCover Queensland Pty Ltd breached information privacy principles 7, 8, 9 and 10 is not substantiated and is dismissed.

3. In the event WorkCover Queensland Pty Ltd has any of the original medical records obtained from the Mackay GP Superclinic and Fenner Family Medicine in its possession, it must return them to the respective practices.

4. WorkCover Queensland Pty Ltd must pay PB compensation in the amount of $5,000 within 28 days of the date of this order.

5. There is no order as to costs.

6. The Tribunal prohibits the publication of any information that may enable PB to be identified.

Background

Background to the litigation

In the referral lodged with the Tribunal, PB has sought the maximum compensation payable for a breach of privacy along with his costs. Factual background It is apparent from the relevant factual background to PB’s privacy complaint that WorkCover made a litany of errors in the course of processing his claim. Many of these errors were trivial, although some had more serious consequences. On 22 July 2013, PB made a workers’ compensation claim. The claim was made over the telephone, a procedure authorised under s 586 of the WCRA. The information recorded by WorkCover contains a number of errors, including:(a)In answer to question 11, PB’s occupation is recorded as “Engine or Boiler Operator”. PB is in fact a boiler maker.(b)In answer to question 17, the date of injury is listed at 22 July 2012. This is the date of the application. PB’s injury occurred over a period of time. Question 18, which relates to injuries which have happened over a period of time, is unanswered.(c)PB’s injury was recorded in questions 19 and 20 as being “Hand, Other and unspecified dermatitis” arising “from irritant/allergy from substances exposed to at work”. PB’s medical condition was bilateral contact dermatitis, and at the time he was unsure of the cause. In the course of completing his telephone claim, PB was played the following recording:In order to process your claim WorkCover Queensland is required to advise you of some important information pertaining to your application. Please listen to the following statement.By lodging your claim you acknowledge it is an offence against the Workers’ Compensation and Rehabilitation Act 2003 to make a statement that is false or misleading. The information you have provided is true and not misleading.You will advise WorkCover if your circumstances change or if you become aware of any matter that would make the information provided false or misleading. In particular, you will advise WorkCover if your employment status changes, whether by working for someone else or yourself and whether paid or unpaid during the course of the claim.WorkCover undertakes all reasonable measures to protect your privacy by collecting, using, storing and disclosing the personal information we hold about you in accordance with the Queensland Government privacy requirements. However, WorkCover may be required or authorised by law to release or obtain information or documents to other parties e.g. doctors, health authorities, allied health providers, rehabilitation providers or other insurers.If your doctor has certified you unfit for work, you are required to provide a completed Tax File Declaration Form to WorkCover Queensland so that we can reimburse you for any loss of wages.This form is available on our website, and can be submitted online or faxed. WorkCover recommends that you submit this form as soon as possible to assist with timely payment to you if your claim is accepted. If a completed Tax File Declaration is not supplied within 7 days of your claim being accepted, you may be taxed at a higher rate.[emphasis added]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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