Written by Peter CarterSeptember 20, 2011
The crushing this month of a Mackay sugar mill worker’s common law damages claim for an over-period-of-time back injury illustrates well the potentially fatal consequences of how statutory compensation applications are completed & lodged and highlights the importance of deciding whether they should be lodged at all.
Gary Otto was injured in the course of washing down cooling towers for Mackay Sugar Ltd from February 2009 until 25 September 2009 when he “woke up in excruciating pain and was not able to put his shoes on”. He phoned his employer who sent a safety officer to the worker’s home. The safety rep took Otto to the company doctor who issued a medical certificate restricting him to only “suitable duties” until 1 October.
His statutory workers’ compensation claim was rejected “due to the non-specific nature of the cause of the injury”. His lawyer’s sought to then lodge a NOCD for what they said was a different injury to that to which the statutory claim related.
Otto’s evidence was that he had never signed any workers compensation application and it appears that the person who lodged it on his behalf – whether the doctor during the consultation or the employer – could not be ascertained. The application form was answered “No” to whether the injury happened over a period of time, but to the question “How did the injury happen”, the answer was “no specific injury time or date”.
Inconsistently to all of this, the application also answered “13 February 2009” in respect of a question about when the injury occurred. A Q-comp review was commenced but withdrawn when the claimant’s lawyers were provided a copy of a version of the application from WorkCover’s computer system which referred to the injury occurring on 13 February 2009.
Instead of a review, the claimant now sought a declaration from the Supreme Court that he was entitled to pursue a common law claim because the “injury” referred to in the statutory claim – it referred to an injury on a specific date – was different to the over-period-of-time injury for which damages were claimed in the NOCD. His Honour did not agree and dismissed the application saying that the injuries were the same and that the entry of a specific date in the application appears to have been a mistake.
To allow the damages claim to proceed because the claimant “mistakenly nominated a specific date as the date of injury would lead to an artificial result that ignored the true facts”.
Although the claimant was in this instance trying to gain leverage from an (obvious) mis-answer in the compensation application, the case illustrates that meritorious damages claims might also be thwarted by errors of a different nature contained in applications that worker allows others to complete on their behalf.
This worker may have had a better outcome had a NOCD been lodged at the outset rather than any workers’ compensation application at all.