Poyner v Queensland Rail
[2006] QSC 237
•18 July 2006
SUPREME COURT OF QUEENSLAND
CITATION:
Poyner v Queensland Rail [2006] QSC 237
PARTIES:
GALE POYNER
(Applicant)
AND
QUEENSLAND RAIL
(Respondent)
FILE NO/S:
S259 of 2006
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Townsville
DELIVERED ON:
18 July 2006
DELIVERED AT:
Townsville
HEARING DATE:
10 July 2006
JUDGE:
Cullinane J
ORDER:
THAT THE RESPONDENT FORTHWITH GIVE THE APPLICANT A NOTICE OF ASSESSMENT PURSUANT TO SECTION 203 OF THE WORKCOVER QUEENSLAND ACT 1996 AS AMENDED FOR INJURIES TO HER RIGHT WRIST AND ANKLE IN THE COURSE OF HER EMPLOYMENT WITH THE RESPONDENT AND TAKE THE STEPS REQUIRED OF IT BY THE ACT UPON RECEIPT OF AN ASSESSMENT OF SUCH INJURIES.
THAT THE RESPONDENT PAY THE APPLICANT’S COSTS OF AND INCIDENTAL TO THE APPLICATION TO BE TAXED.
CATCHWORDS:
STATUTORY COMPENSATION – where the Applicant had sustained injuries in the course of employment - where the Applicant received workers’ compensation – Whether assessment by medical practitioner must comply in all respects with Regulations before Respondent obliged to give notice of assessment.
Judicial Review Act1991
WorkCover Queensland Act1996
WorkCover Queensland Regulations 1977
Berowra Holdings Pty Ltd v Gordon (2006) HCA 32 cited
Project Blue Sky Inc v Broadcasting Authority 194 CLR 355 consideredCOUNSEL:
Mr A.J. Moon for the Applicant
Mr K.F. Holyoak for the Respondent
SOLICITORS:
Connolly Suthers for the Applicant
Boulton Cleary and Kern town agents for Phillips Fox for the Respondent
The Applicant and the Respondent have characterised these proceedings somewhat differently. The Applicant says that it is an application pursuant to s 20 of the Judicial Review Act whilst the Respondent in its outline described the proceedings as an application for final mandatory injunctive relief in aid of a statutory right without pleadings.
It was however common ground ultimately that however the proceedings be regarded, the issues and the applicable principles were the same. The Respondent was content that the matter be treated as a proceeding under the Judicial Review Act.
The Applicant sustained an injury to her lower right arm and to her ankle in the course of her employment with the Respondent on 2 June 1999. She sustained a fracture of the right wrist and some swelling and bruising of the right ankle.
She saw Dr Mansfield an orthopaedic surgeon of Cairns who operated on her on two occasions. She also saw an anaesthetist for what she describes as nerve blocks to her right wrist. She had applied for workers’ compensation and received it. Her treatment was paid for by the Respondent.
She returned to work on restricted duties and wore a splint on her right hand. She had been diagnosed as suffering from reflex sympathetic dystrophy of the right lower arm. The injury to the ankle resolved itself and left the Applicant with no ongoing disability.
The Respondent made arrangements for her to attend medical examinations in Brisbane by an orthopaedic surgeon and an anaesthetist.
However on 24th September 2000 she sustained a further injury to her right wrist in an accident at home. She slipped and fell backwards and put her hands down to break her fall. She sustained fractures to both her left and right wrists.
The fractures healed within a short time but the consequence was that she developed a reflex sympathetic dystrophy in the left wrist in addition to the condition in the right wrist. She again saw Dr Mansfield in relation to these.
After contacting the Respondent about this development her workers’ compensation was immediately terminated and the appointments were cancelled.
Although she had been lead to believe that the appointments with the doctors would be rescheduled this did not occur. Her employment was terminated in March 2002.
She had engaged solicitors in Cairns to act on her behalf in relation to a possible damages claim but says that they did not take any action and she has instituted proceedings against them.
She consulted her present solicitors in March 2005.
The solicitor acting on her behalf contacted the Respondent by letter of 28th April 2005. Amongst other things he asked whether any assessment had been made of the Applicant’s injuries for the purposes of the WorkCover legislation. He also asked whether any request by the Applicant’s previous solicitors to have the injuries assessed had been made.
The Respondent wrote to the Applicant’s solicitor informing them that no request for an assessment had been made and that an appointment had been made for an assessment with an orthopaedic surgeon in Cairns. This appears to have been based upon a mistaken belief that a request had been made by her new solicitors for such an assessment. Ultimately an appointment was made with Dr Mansfield as a result of the suggestion by her solicitor who made it clear that the Applicant had not herself made a request for an assessment.
Dr Mansfield by a report of the 25th October 2005 expressed the view that the Applicant “remains totally disabled as a result of the RSD which she suffers in her right lower arm.”
He said a little later:
“The degree of permanent partial disability in this case is hard to fit into either the AMA or the WorkCover guidelines, but it is best described under item 1126, loss of the arm or hand below the level of the elbow, as this is basically what has happened here. She doesn’t have any useful function in the hand, and in fact, it is probably a worse situation for her than having lost it completely and not having the severe pain that she has.” Therefore, I think her situation best equates to 1126, with a PI of 90% and a WRI of 72%.”
Subsequently Dr Mansfield was asked by the Respondent to make an assessment of the ankle and said that there was no permanent disability as a result of this.
He was later asked to turn his mind to the question of the contribution to her current right arm disability of the accident at home on 24th September 2000. He adjusted his earlier opinion by ascribing some 7.5% of the disability he had expressed in relation to the right arm to the non work related incident.
This application largely turns upon the report of Dr Mansfield dated 25th October 2005 and in particular whether it is an assessment which gives rise to an obligation on the part of the Respondent pursuant to the legislation to give a notice of assessment and to take certain other steps.
When the Applicant had been referred to Dr Mansfield for the purposes of the assessment the Respondent forwarded to Dr Mansfield a letter setting out what it sought from him. This appears in a letter of the 7th June 2005 which is an exhibit to an Affidavit of the solicitor for the Respondent.
The Respondent, being clearly unhappy with the report of Dr Mansfield made arrangements for the Applicant to see a hand surgeon. The Applicant has refused to attend this appointment maintaining through her solicitor that the Respondent has obtained a report containing an assessment of the Applicant’s injury and disability and is obliged to issue a notice of assessment in accordance with Dr Mansfield’s report.
The Respondent has since notified the Applicant that it proposes to refer the matter to the Medical Assessment Tribunal pursuant to s437(e) of the WorkCover Queensland Act, something which the Applicant says the Respondent is not entitled to do.
There is material before me filed on behalf of the Respondent in which issue was taken on a number of grounds with the approach of Dr Mansfield by an orthopaedic surgeon, Dr Coleman, who expresses the view that it is possible to assess reflex sympathetic dystrophy by reference to the current AMA guide. He also questioned whether the diagnosis of reflex sympathetic dystrophy has been correctly made. The claims manger for the Respondent, one William Joseph Brown, has filed an Affidavit setting out in paragraph 14 thereof reasons why he says that the Respondent does not accept that the report of Dr Mansfield satisfies the requirements of the WorkCover legislation.
Part 9 of the WorkCover Queensland Act deals with entitlement to compensation for permanent impairment.
Section 196 provides as follows:
“196.(1) Under this part, WorkCover or a worker is entitled to ask for an assessment to decide if a worker has sustained a degree of permanent impairment from injury.
(2) If the worker is assessed under this part as having sustained a degree of permanent impairment, the worker is entitled to a payment, or an offer of payment, of lump sum compensation for the permanent impairment.
(3) In particular circumstances, the worker may be entitled to a payment of additional lump sum compensation.”
Section 197 provides for what is to be done to have an injury assessed. It imposes some obligations upon both the Respondent (a self-insurer) and the specialist or medical practitioner or body making the assessment:
(1) WorkCover may decide, or a worker may ask WorkCover, to have the worker’s injury assessed to decide if the worker’s injury has resulted in a degree of permanent impairment.
(2) WorkCover must have the degree of permanent impairment assessed—
(a) industrial deafness – by an audiologist; or
(b) for a psychiatric or psychological injury – by a medical assessment tribunal; or
(c) for another injury – by a doctor.
(3) The degree of permanent impairment must be assessed in the way prescribed under a regulation and a report must be given to WorkCover stating –
(a) the matters taken into account, and the weight given to the matters, in deciding the degree of permanent impairment; and
(b) any other information.”
I will come to the regulations shortly.
Section 201 requires the Respondent in a case of this kind to assess the Applicant’s work related injury.
Section 203 provides as follows:
“203.(1) WorkCover must, within 28 days after receiving the assessment of the worker’s permanent impairment, give the worker a notice of assessment in the approved form.
(2) However, if a worker sustains multiple injuries in an event, WorkCover must give the notice only after the worker’s degree of permanent impairment from all the injuries has been assessed.
(3) The notice must state –
(a) whether the worker has sustained permanent impairment from the injury; and
(b) if the worker has sustained permanent impairment –
(i) the degree of permanent impairment attributable to the injury; and
(ii) the WRI calculated for the injury resulting in either –
(A) a certificate injury; or
(B) a non-certificate injury; and
(iii) the amount of lump sum compensation under section 198 to which the worker is entitled for the injury; and
(c) if the worker has a WRI of 50% or more – the worker’s entitlement to –
(i) additional lump sum compensation under section 210;89 and
(ii) additional lump sum (if any) for gratuitous care under section 211.
(4) If the notice states the worker has not sustained a degree of permanent impairment, WorkCover must also give the worker a copy of sections 11, 259, 260 and 325.”
It is the failure by the Respondent to issue an assessment pursuant to s.203 that is the subject of this application. Once such an assessment is made there is an entitlement to compensation pursuant to various other provisions of the legislation.
Section 55 of the WorkCover Queensland Regulations 1977 provides so far as is relevant as follows:
“55.(1) The table of injuries is set out in schedule 2.
(2) The table of injuries, parts 1, 2 4 and 6 must be read in conjunction with the relevant provisions of the AMA guide.
(3) The methods that must be used in assessing the degree of permanent impairment resulting from an injury mentioned in part 1, 2, 4 or 6 are the methods stated in the AMA guide.
(4) However, not every injury a worker may sustain is mentioned in the table of injuries and, if a worker sustains permanent impairment from an injury that is not mentioned in the table of injuries (other that in part 3 or 5), the AMA guide must be used for assessing the degree of permanent impairment resulting from the injury.
---
(7) If there is an inconsistency between the table of injuries and the AMA guide --- the table of injuries prevails to the extent of the inconsistency.
(8) For subsection (2), a provision of the AMA guide is a relevant provision of the guide for a part of the table of injuries if it is mentioned in the part as a relevant provision for the part.”
Schedule 2 to the regulations is the table of injuries and part 1 of schedule 2 deals with upper extremity injuries. Clause 3 of this schedule provides as follows:
“3.(1) The degree of permanent impairment resulting from an injury to an upper extremity is expressed in division 2 as a degree of permanent impairment of the upper extremity.
(2) Even though an injury is not precisely described under division 2, a similar injury often will be.
(3) If the injury is more severe than a particular similar injury, but less severe than another similar injury, the degree of permanent impairment must always be more than the less severe injury, but not as much as the more severe injury.
(4) If an injury to an upper extremity results in permanent impairment and the injury is not mentioned in division 2, the degree of permanent impairment must be assessed under the AMA guide.
(5) However, the processes that may be used under the AMA guide cannot result in an injury giving rise to a greater degree of permanent impairment from the injury than that specified under division 2.
(6) The degree of permanent impairment resulting from the injury assessed under the AMA guide must be expressed as a degree of permanent impairment of the upper extremity.
(7) The degree of permanent impairment so expressed is taken to be the degree of permanent impairment of the upper extremity for this party.
(8) For section 55 of the regulation, the relevant provision of the AMA guide is chapter 3.”
The effect of s 55 of the regulations is that the table of injuries prevails to the extent of any inconsistency between that and the AMA guide.
There appears to me to be some tension between clause 3 of schedule 2 and s.55 of the regulations. Section 55(4) would seem to require the use of the AMA guide if the injury is not mentioned in the table of injuries. On the other hand, whilst clause 3(4) of schedule 2 would seem to be consistent with this the effect of clause 3(2) and (3) seem to be at odds with this. They seem to permit an assessment by way of comparison with or approximation to an injury specified in the table of injuries.
It is also difficult to see how subclauses (4) and (5) can be reconciled. Perhaps the answer is to be found in the processes provided for in the AMA guide which was not placed before me at least in its entirety.
Neither s 55 nor clause 3 gives any guidance as to what an examiner is to do if he or she considers a matter is not covered by the AMA guide and is not in the table of injuries. It would be an odd result if he or she were compelled to make an assessment in terms of criteria when his or her professional opinion is that such criteria are inapplicable.
The only issue which is relevant on this application in my view is whether the Respondent has received an assessment that the Applicant has had a permanent impairment and thus has come under the obligations which the Act provides in that event, in particular the obligation under s 203(1) to give a notice of assessment.
The Respondent contended that on a proper construction of the provisions of the Act relating to compensation strict conformity to the requirement of s197(3) and the regulations is necessary and any failure to comply has the result that there has been no assessment for the purposes of part 9.
Non compliance in three respects was identified. It was said that reflex sympathetic dystrophy is not an injury mentioned in division 2 and therefore the degree of permanent injury must be assessed under the AMA guide and expressed as a degree of permanent impairment of the upper extremity. According to the Respondent Dr Mansfield failed to do both of these things.
The other complaint is that Dr Mansfield has failed to state the matters taken into account and the weight given to such matters in deciding the degree of permanent impairment assessed.
The WorkCover legislation establishes a process for the making of claims for compensation, their assessment and the payment or rejection of such claim as a consequence of the assessment.
I do not think it is consistent with modern authority to regard any non compliance with the conditions which the Act requires to be satisfied in the course of identifying what if any compensation is payable as necessarily invalidating subsequent steps in the process. This is so even though the language used is mandatory.
In Project Blue Sky Inc v Broadcasting Authority 194 CLR 355 McHugh, Gummo, Kirby and Hayne JJ said at pages 388-389:
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects the contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.”
Later at pages 390-391 they said:
“A better test for determining the issue of validity is to ask whether it was the purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of Courts in this country in recent years, particularly in New South Wales. In determining the question of purpose regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.’”
I take these principles to be applicable in a case of this kind.
The High Court has recently adopted a similar approach in relation to conditions to be satisfied prior to the institution of proceedings which involves somewhat different considerations. See Berowra Holdings Pty Ltd v Gordon (2006) HCA 32.
Here in my view the conclusion should be drawn that non compliance with the regulations in the respects alleged does not have the result that there has been no assessment for the purposes of s197(3) with the result that the Respondent is not obliged to issue a notice of assessment and take the other steps which the Act requires to be taken when such an assessment is obtained.
I have already referred to some of the difficulties in construing the regulation and schedule and to the flexibility which would seem to be permitted in assessing the disability by reference to similar injuries. Moreover to accept the approach of the Applicant where the regulation and schedule may not, in some cases be able to be applied – as Dr Mansfield though was the case here – would make this process of assessing claims unworkable in such cases. Both the nature of what is involved in such an assessment and the terms in which the Regulations are expressed militate against the notion of the strict compliance claimed. Considerable inconvenience will arise if a claimant becomes caught up in disputes between WorkCover or a self insurer on the one hand and an examiner on the other. The delays which would necessarily be involved will tend to frustrate the obvious intent of the Act.
There would appear to be endless possibilities for disputing the diagnosis and assessment of such a person and the methodology used as will be apparent from some of the issues which have been raised here.
In my judgment even if the non compliance alleged be accepted this does not prevent the assessment of Dr Mansfield being an assessment for the purposes of the Act and giving rise to the obligations which sections 198, 201, 203 and other provisions provide for. That is the Applicant’s right to receive a notice of assessment under section 263 and the payment of compensation does not depend upon strict compliance with the Regulation as claimed.
In view of this finding it is unnecessary to consider the question whether the non compliances as alleged are made out. I have considerable reservations as to whether they have been. It is true that the injury does not appear under division 2 but Dr Mansfield did not suggest that it did. It is also true that he did not assess the disability under the AMA guide but did not do so because he had formed the opinion that the peculiar disability which the Applicant suffered from could not appropriately be assessed under the guide. There is evidence before the court that another orthopaedic surgeon holds a different view.
Dr Mansfield assessed the injury by analogy with an item in division 2. Clause 3 seems to countenance such an approach. In his report he sets out how he viewed the factors which had lead him to conclude that the Applicant had the disability he assessed. He later adjusted this assessment to take into account the role in her disability played by the fall at home.
I order that the Respondent forthwith give the Applicant a Notice of Assessment pursuant to section 203 of the WorkCover Queensland Act 1996 as amended for injuries to her right wrist and ankle in the course of her employment with the Respondent on 2 June 1999 and take the steps required of it by the Act upon receipt of an assessment of such injuries.
I order the Respondent to pay the Applicant’s costs of and incidental to the Application to be taxed.
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