Written by Peter CarterNovember 27, 2014
Council worker Osman Bakhit was moving temporary-fencing base slabs at Ascot’s Bartleys Hill Reservoir when he ruptured a disc in his back in 2011.
According to his compensation application lodged in December that year for “a work induced aggravation of a pre-existing condition”, the injury happened on “aprox 1 September.” The workers compensation insurer for Brisbane City Council assessed his “prolapsed intervertebral disc in the lumbar spine” at 25% WPI. Bakhit accepted the resulting offer of $72k in June 2013.
When it came time to lodge a Notice of Claim for Damages to pursue his lawsuit claim for his employer’s negligence, the accident date was said to be 13 July.
That was enough for the council’s insurer to assert the NOCD was non-compliant because any July injury had not yet been assessed. It required a new assessment under WCRA s 258. It also attempted to retract the earlier 25% assessment by reason of “purported confusion over dates of the event and uncertainty about the time of the occurrence of the injury”.
The claimant appealed that ruling to the Workers’ Compensation Regulator which was resolved in the BCC’s favour.
Without waiting for the regulator to decide, Bakhit also sought a declaration from the court that he was entitled to pursue a common-law claim for the NOCD date injury without further assessment. There was, after all, no question that the disc injury had been sustained at around that time and the WPI assessment was for the prolapse, not for aggravation.
Not as simple as that, rebuffed the council.
It claimed his medicals suggested the injury most likely occurred much later than July. Relying on the phoned in opinion of orthopaedist Peter Boys that resuming work in such a state – as he had done – from July to September was “impossible”, the council’s case was that the entire injury most likely occurred in September when the the disc prolapse was first discovered.
Bakhit – a Sudanese immigrant who needed an interpreter for most things – said he had no real understanding of the contents of the first application or what accident date had been stated in it. He argued the specific injury date was immaterial because, whatever the date, the actual injury had been fully assessed. Whether or not an injury on the date alleged was medically unlikely was a matter for an eventual trial.
Judge Stuart Durward agreed: “There was one injury suffered by the applicant. Any debate about the date of the relevant event and about causation is a matter for trial”. He also criticised it for the scant basis on which the BCC premised its non-compliant ruling.
“That the council relies substantially upon the telephone conversation with Dr Boys on such an important matter seems to me to be totally inadequate.”
“Dr Boys was placed in an unenviable position in being asked to comment on documentary material without having seen the claimant, taken a history and assessed his condition in a comprehensive way”.
Notwithstanding confirmation by the Regulator of the insurer’s decision, the court ruled that the injury assessed was the same referred to in the NOCD (regardless of its precise date) and the insurer must remove all obstacles to having the worker’s claim determined by a court.
Mr Bakhit’s case will proceed to trial in mid-2015 when the injury date issue will likely loom large once again.