Watters v WorkCover Queensland

[2001] QSC 331

SUPREME COURT OF QUEENSLAND

CITATION:

Watters, Re [2001] QSC 331

PARTIES:

KIM MAREE WATTERS
(applicant)
v
WORKCOVER QUEENSLAND
(respondent)

FILE NO/S:

S 7544 of 2001

DIVISION:

Trial Division

PROCEEDING:

Application for declaration of compliance with s 280 WorkCover Queensland Act 1996

ORIGINATING COURT:

Brisbane

DELIVERED ON:

12 September 2001

DELIVERED AT:

Brisbane

HEARING DATE:

10 September 2001

JUDGE:

Holmes J

ORDER:

The Notice of Claim for Damages dated 2 March 2001 is compliant with s 280 of the WorkCover Queensland Act 1996.

CATCHWORDS:

WORKER’S COMPENSATION - COURSE OF EMPLOYMENT – MEDICAL EXAMINATION-s280 WORKCOVER QUEENSLAND ACT 1996
Application for declaration of compliance with s280 WorkCover Queensland Act – applicant sustained back injury during course of employment – whether injury correctly described as ‘disc prolapse’ on Notice of Claim – whether injury falls within code 4114 WorkCover Queensland Regulation 1997.

Re: Robinson [1999] QSC 11
Lau v WorkCover Queensland [2000] QSC 271
Anagnostou v Woolworths Ltd [2001] 2 Qd R 1

WorkCover Queensland Act 1996
WorkCover Queensland Regulation 1997

COUNSEL:

Mr D. Kelly for the applicant
Mr B. Hoare for the respondent

SOLICITORS:

Shine Roche McGowan on behalf of the applicant
Bradley & Co. on behalf of the respondent

1. The applicant seeks a declaration that a notice of claim for damages given by her to the respondent complies with s 280 of the WorkCover Queensland Act 1996. The respondent argues that the notice is not compliant with the section, because it describes her injury as a disc prolapse, an injury which, it contends, has not been assessed.

History of the claim

1. The applicant claims to have been injured on 10 January 1999, in the course of her employment.  In her application for workers compensation dated 15 November 1999 she identified her injury as “strain to lower back”.

1. It seems that the applicant saw a Dr Eric Guazzo, a neurosurgeon, in respect of her injury.  His earliest reports are not in evidence, but it appears that in March 2000 he referred her for magnetic resonance imaging of the lumbar spine.  The MRI report of 23 March 2000 indicates a “very small left-sided focal herniation into the inferior aspect of the left nerve root foramen” with narrowing of the nerve root foramen, at L5 S1.  Dr Guazzo reported to WorkCover in respect of the applicant on 1 June 2000.  He described her as complaining of lower back pain with referred symptoms to the left leg. The MRI findings of stenosis and disc prolapse at L5 S1 “were consistent as the cause of the referred pain into her leg.”  Work was a significant contributing factor to her leg and back pain.

1. Dr Guazzo gave a further report of 14 September 2000 to WorkCover. In it he referred to his earlier reports of 1 and 7 June 2000. He described the current report as “supplementary”, compiled after receipt of further information, in the form of the applicant’s advice as to her progress. Her symptoms had remained unchanged.  Dr Guazzo concluded the report in the following terms:

“It is my assessment that she has a permanent partial impairment of 7.5 percent of whole person, of which 5 percent of the 7.5 percent is due to the aggravation of a work injury and that the remaining 2.5 percent due to a pre-existing back complaint.

Her symptoms are best described by PI code 4114”.

1. “PI code 4114” refers to a code number within Division 2 of Part 4 of Schedule 2 of the WorkCover Queensland Regulation 1997. The injury signified by the number 4114 is as follows:

“Moderate to severe aggravation or acceleration of pre-existing disease in lumbo-sacral spine with subjective symptoms, but no significant clinical findings other than degenerative changes on
x-ray”.

1. On 19 October 2000 the respondent issued a notice of assessment describing the injury as “strain lower back”.  It seems that, having received that notice of assessment, the applicant’s solicitors raised the injury description with the respondent. They were advised by a telephone call from one of the respondent’s officers that the notice of assessment would be amended to “back injury”, so that the issue of whether there was a disc prolapse or merely a strain could be resolved at trial.  An amended notice of assessment was forwarded, describing the injury as “lower back”. It was changed once more, to include provision for the applicant to indicate her agreement (or otherwise) with the degree of permanent impairment assessed.  The amended notice of assessment continued, however, to identify the relevant PI code as 4114.

1. On about 8 March 2001, the applicant provided her notice of claim for damages to WorkCover. In it, she gave particulars of her injury as “disc prolapse” to the lower back. The respondent advised by letter from its solicitors of 23 March 2001 that it was not satisfied that the notice of claim was compliant with s 280, because it particularised injury as disc prolapse, when the assessed injury was “lower back ache under injury code 4114”. After being advised of the agreed change of description to “lower back”, the solicitors for the respondent replied noting that Dr Guazzo had assessed injury under code 4114, and that was the code which continued to apply on the notice of assessment.

The statutory regime

1. Section 196(1) of the WorkCover Queensland Act 1996 entitles WorkCover or a worker to seek an assessment of permanent impairment. By s 197(2), WorkCover is required to have the degree of permanent impairment assessed, in the case of an injury like the applicant’s, by a doctor. Subsection (3) provides for the degree of permanent impairment to be “assessed in the way prescribed under a regulation”. A report must then 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 prescribed under a regulation.”

1. Regulation 55 of the WorkCover Queensland Regulation 1997 provides that the table of injuries is set out in Schedule 2 to the Regulation, and that it is to be “read in conjunction with the relevant provisions of the AMA Guide”. Part 4 of Schedule 2 is entitled “Other Injuries” and deals, inter alia, with injuries to the musculo-skeletal system. The table provided sets out for a given injury its code, the maximum degree of permanent impairment resulting from it, the maximum lump sum compensation, and the maximum work related impairment in respect of it.

1. Section 3 of Part 4 provides as follows:

“3.(1) The degree of permanent impairment resulting from a system injury is expressed in division 2 as a degree of permanent impairment of the whole person.

(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 a system injury 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.”

1. Where an assessment has been made, WorkCover is, by virtue of s 203(1) of the WorkCover Queensland Act 1996, required to provide a notice of assessment. The receipt of a notice of assessment is one of the criteria entitling a worker to seek damages under s 253(1) of the Act. However, before starting a proceeding a claimant must give notice under s 280, including the particulars prescribed under a regulation.

1. Regulation 74(1)(c) requires that those particulars include:

“(c)       full particulars of the nature and extent of –

(i)         all injuries alleged to have been sustained by the claimant because of the event; and

(ii)       the degree of permanent impairment that the claimant alleges has resulted from the injuries; and

(iii)      The amount of damages sought under each head of damage claimed by the claimant and the method of calculating each amount; and

(iv)       how the claimant is presently affected by the injuries”.

1. There is a good deal of authority to the effect that the injuries which may be the subject of the notice of claim are limited to those which have been assessed.[1]  The question is whether in this case the injury, being a disc prolapse, was assessed.

   [1]Re Robinson [1999] QSC 11; Lau v WorkCover Queensland [2000] QSC 271; Anagnostou v Woolworths Ltd [2001] 2 Qd R 1.

The assessment of the applicant’s injury

1. Section 3 of Part 4 to Schedule 2 of the WorkCover Queensland Regulation 1997 makes it clear that not every injury is described in the schedule and (by subsections (2) and (3)) that where similar injuries can be found, the degree of permanent impairment should be assessed as falling between a less severe similar injury and a more severe similar injury. Where the injury is not mentioned at all the degree of permanent impairment is to be assessed under the AMA Guide. It would seem to follow therefore, that reference to the code for an injury is not crucial in a notice of assessment, since there will be some injuries which do not fall within any particular code, although they may be assimilated to other, coded, injuries.

1. An examination of the coded items for lumbo-sacral spine injuries shows that this is in fact such a case.  There is provision for prolapsed intravertebral disc “not operated with resolution of referred pain and back pain” (item 4118) and for “prolapsed intravertebral disc … with referred pain, treated surgically … with resolution of referred pain but persisting low back pain” (4119) and a similar item, (4120) for “prolapsed intravertebral disc … with referred pain, treated surgically … but with persisting referred pain and low back pain”.  The applicant had not yet undergone surgery, but her symptoms had not subsided. There is no item in respect of a prolapsed disc with referred pain which has not been operated upon, but in respect of which there has been no resolution of pain.  It is readily understandable therefore, why Dr Guazzo chose a more general item, 4114, as approximating the level of impairment which he found.

1. What s197 requires, in the case of an injury such as this, is a doctor’s assessment of, and report on, the permanent impairment occasioned by the injury, It is clear from Dr Guazzo’s report of 14 September 2000 that he set out to assess the applicant’s permanent impairment in respect of her low back pain and left leg pain which, as is apparent from his earlier report of June 2000, he accepted as consistent with the disc prolapse being the cause.  It does not accord with the reality of those reports to conclude that he was dealing with anything other than the applicant’s back condition as, probably, brought about by that prolapse.  That was the condition assessed, and reported upon by him.  

1. The mere fact that Dr Guazzo could not find a directly apposite code number in the schedule does not alter the nature of the injury which he assessed.  The respondent appears to have adopted as conclusive the code number to which he alluded as best describing the symptoms (rather than their cause).  I do not think this is warranted by an examination of the options open on the schedule or the language used by Dr Guazzo.  Nor is it to the point that the notice of assessment then referred to that item number. As Mr Hoare pointed out during argument, it is the medical practitioner’s assessment which is relevant under s197, not the view of a WorkCover officer who formally gives the result of an assessment.

1. It follows that I consider that the applicant’s injury for which she was assessed was that of “disc prolapse” in the lower back, and that the notice of claim for damages complies with s 280. The applicant is entitled to a declaration in those terms. Accordingly, I declare that the notice of claim for damages dated 2 March 2001 is compliant with s 280 of the WorkCover Queensland Act 1996.