Written by Peter CarterMarch 31, 2013
During the course of a statutory compensation process for a tennis elbow injury arising in the course of host employment over a period of six months in 2007 at Vinidex on Townsville’s outskirts, WorkCover personnel surmised Lawrence Muckermann to be manifesting a psychiatric condition for which no claim had been lodged.
They referred him to a Medical Assessment Tribunal for a decision on the nature and permanent extent of that impairment without asking for any information about its cause. The tribunal recorded a “major depressive disorder” with 5 % impairment. Subsequently, a notice of assessment issued describing it as a “secondary major depressive disorder”.
In due course, Muckermann filed his Notice of Claim Damages for the epicondylitis and a psychiatric injury “resulting from alleged bullying and harassment” to which he claimed to have been subjected following his return to work on light duties from January to May 2008.
The NOCD, which gave particulars of the offending conduct, was deemed compliant in December 2010 and a compulsory conference based on that notice was subsequently held without resolving the claim. However in their defence to the Statement of Claim based on all NOCD detailed injuries, WorkCover’s solicitors contended the plaintiff had failed to comply with section 295 (a) in that the issued notice of assessment was in respect of a different psychiatric injury, namely one consequential upon or “secondary to” the physical injury, rather than any bullying or harassment.
WCQ in its capacity as damages insurer, contended that the MAT “must have” been acting on the premise that the injury it was assessing was one arising out of or “secondary to” the pain and suffering associated with the physical injury.
Noting that the tribunal has no role to make “findings upon events as opposed to “injury”, his honour found the argument to be too much of a stretch.
Traversing the WCRA consequences of these concepts, he noted: “While for both compensation claims and damages claims issues concerning both injury and event may have to be considered in general terms, injury is a focus of a compensation claim and event has much greater significance in the damages claim” because that is what a claimant is required to establish under section 31 and elaborate upon in the NOCD.
Noting also that the notice of assessment has a “gateway” function beyond that of determining compensation, namely for “the regulation of access to damages”, in this case, the injury – from whatever “event” – had been duly assessed and was properly the subject of the damages proceedings. WCQ had no power to qualify the injury assessed by the MAT by referencing it to an event as it had purported to do by use of the “secondary” description.
The court emphasised that the facts of the case were unusual in that WorkCover had accepted the psych injury without any application from the plaintiff and without asking for information as to its cause. In such circumstances, WCQ’s conduct was even less commendable: That one of many objects of the WCRA is “ensuring that workers are treated fairly by insurers should not be forgotten. …To set up as a defence…. that a notice of assessment ambiguously suggests another cause [for the assessed injury] finds no support in the WCRA.
To do so in the circumstances applying here offends against the objects of the act. WorkCover and the plaintiff may have been at cross purposes about the plaintiff’s attribution of the cause for his ‘psyche’ injury but that was, on the view I take, of WorkCover’s making”.
The relief ordered was a declaration that the psychiatric injury claimed for, was indeed the one that had been assessed.