Australia Meat Holdings P/L v Q-Comp & The Workers Compensation Regulatory Authority [2004] QSC 408

SUPREME COURT OF QUEENSLAND CITATION: Australia Meat Holdings P/L v Q-Comp and its Successor The Workers Compensation Regulatory Authority & Anor [2004] QSC 408 PARTIES: AUSTRALIA MEAT HOLDINGS PTY LTD ACN 011 062 338 (applicant) v Q-COMP and its Successor THE WORKERS COMPENSATION REGULATORY AUTHORITY (first respondent) JASON JOHN STOTT (second respondent) FILE NO/S: SC No 7456 of 2004 DIVISION: Trial PROCEEDING: Application for Review ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 19 November 2004 DELIVERED AT: Brisbane HEARING DATE: 30 September 2004 JUDGE: Holmes J ORDER: Application for Review dismissed CATCHWORDS: ADMINISTRATIVE LAW – APPEALS FROM ADMINISTRATIVE AUTHORITIES – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO THE COURTS – APPEALS FROM PARTICULAR AUTHORITIES – WORKERS’ COMPENSATION TRIBUNALS – where the second respondent applied for, and received, compensation from the applicant, a self-insurer under the WorkCover Queensland Act 1996, for a fractured elbow – where the applicant subsequently discontinued the compensation payments – where the applicant refused a further claim by the second respondent for compensation for chronic pain on the ground that it concerned the same injury as the previous claim – where the first respondent, a statutory review body, set aside the applicant’s decision – where the applicant seeks an order for statutory review of the first respondent’s decision – whether the respondent acted beyond its jurisdiction in dealing with the second application for review – whether the application for compensation was -- 1 of 8 -- 2 bought out of time WorkCover Queensland Act 1996, s 158, s 168, s 603, s 493, s 494 COUNSEL: Mr Cross for the applicant Mr Hinson SC with Mr McLeod for the first respondent SOLICITORS: Abbott Tout Lawyers for the applicant C W Lohe, Crown Solicitor of the first respondent The application [1] In 2001, the second respondent, Mr Stott, sustained a fractured elbow in the employ of the applicant, Australia Meat Holdings Pty Ltd (“AMH”). AMH was a self- insurer under Part 5 of Chapter 2 of the WorkCover Queensland Act 19961 . An initial application for compensation for that injury, made in 2003, was allowed, but payments were subsequently discontinued. AMH declined a further application by Mr Stott, for compensation for chronic pain, essentially on the ground that it concerned the same injury as the previously granted claim. Mr Stott sought review of that response. Q-Comp, the first respondent, was, under the statutory regime as it stood at the relevant time, the review unit with responsibility for reviewing such decisions2 . It purported to set aside AMH’s decision on the basis that Mr Stott had succeeded in demonstrating a psychological injury, as opposed to the physical injury for which he had earlier been compensated. AMH seeks an order for statutory review of Q-Comp’s decision, on the grounds that prescribed procedures were not followed in making it, and it was not authorised by the enactment; that it was an improper exercise of power; and that it involved an error of law or was otherwise contrary to law. The original claim for compensation – fractured elbow [2] On 1 September 2003, Mr Stott applied for compensation in respect of an injury described as “fracture - left radial head elbow”. The claim was accepted, but on 23 April 2004, after obtaining further medical reports, AMH decided to terminate compensation payments. Reasons for the decision were provided; they referred to reports from Dr David Gilpin and Dr Phillip Duke, both orthopaedic surgeons, and a report from Dr Leigh Atkinson, a neurosurgeon. Dr Gilpin in his first report, given in September 2003, noted that Mr Stott had a healed non-compound fracture of the left radial head, but continued to complain of problems with sensations of locking and swelling in the elbow. Somewhat cryptically, Dr Gilpin described the plaintiff’s continuing symptoms as “a post-traumatic residual”. At some stage, Mr Stott asked Dr Gilpin to clarify what that meant; he responded, in September 2004, as follows: “The post-traumatic residual written on the certificates relates to every aspect of the residual following injury. This includes functional loss that you note as well as the chronic pain syndrome.” 1 Mr Stott’s injury was sustained prior to the commencement of the Workers’ Compensation and Rehabilitation Act 2003. By virtue of s 603 of that Act, the WorkCover Queensland Act continues to apply to the procedures concerned in this application. 2 Sections 403A and 403B of the WorkCover Queensland Act provided for the setting-up and function of review units. -- 2 of 8 -- 3 [3] Dr Gilpin performed surgery on the elbow to establish whether there were any loose bodies around the radial head which might contribute to the locking of the elbow; he found none, nor any other significant abnormality. He referred Mr Stott to Dr Atkinson, who suggested admission to a chronic pain management program, a suggestion with which Dr Gilpin concurred. Dr Duke, who had also examined and reported on Mr Stott in late 2003, was asked in April 2004 to provide a further assessment of his condition, because Dr Gilpin had declined to give any new report. Dr Duke’s view, having re-examined the elbow and seen the results of Dr Gilpin’s surgery, was that the movement of the elbow joint was restricted by pain, not any deformity. He found no significant pathology in the elbow and “no evidence of a chronic pain syndrome around the elbow”. Dr Duke supported the recommendation for referral to a pain management clinic; although he expressed doubt as to whether it would have any real bearing on the outcome. In any event, he reported, Mr Stott was fully capable of returning to work. In light of that material, AMH concluded that Mr Stott had no continuing incapacity with respect to the left elbow injury, and was no longer totally incapacitated for work. Compensation payments were, accordingly, discontinued. The first review application [4] Mr Stott applied to Q-Comp for a review of that decision. In his application for review, he said, among other things, “I am still in quit [sic] a lot of pain and AMH have not obtained a report from Dr Gilpin in regard to my situation ... I am also being treated at the Wesley Auchenflower Pain Clinic ...”. Mr Stott furnished some further medical reports: one from the pain management program he had undertaken at the Wesley Hospital, another from his treating general practitioner Dr Sue Yuen, dated 1 June 2004, and a third from Dr Gilpin, dated 3 June 2004. Only the report of Dr Yuen is in evidence. She described Mr Stott as suffering from anxiety and depression “directly related to his chronic pain syndrome of the left elbow.” An excerpt from Dr Gilpin’s report, contained in Q- Comp’s reasons, sets out his opinion that Mr Stott had developed pain syndrome as a result of his elbow injury. [5] It appears that Q-Comp then asked Dr Gilpin for a further opinion as to whether Mr Stott could return to work. In his report, dated 24 June 2004, Dr Gilpin said that there was no physical reason that Mr Stott could not work, but in light of the pain syndrome, his capacity ought be assessed by a psychiatrist or psychologist. Q- Comp at that point decided there was insufficient evidence of incapacity due to the work injury to warrant continuation of compensation, so that AMH’s decision should be upheld. The review officer in her reasons for decision alluded to the chronic pain syndrome aspect: “It seems at this point in time liability for this injury has not been established. Accordingly, as this component of the injury is not part and parcel of this review I cannot address this.” That decision was dated 1 July 2004. -- 3 of 8 -- 4 The second compensation claim - depression [6] In the meantime, however, Mr Stott had made two further applications for compensation. The first of them, made on 7 May 2004, was in relation to depression, which, he said, was the result of abuse and slander by employees of AMH, lack of rehabilitation and the “dissappointment [sic] of my arm not getting better”. The injury was said to have occurred between March and May 2004. AMH had three months in which to determine the claim; it remained unresolved at the time the Q-Comp decision under review here was made. The third claim for compensation - chronic pain [7] On 24 June 2004, Mr Stott made another claim for compensation, describing the injury on the application form as “chronic pain”. As to how the injury happened, he said, “chronic pain in left elbow as a result of initial brake [sic] which happened at AMH Dinmore.” He named the doctors consulted as Dr Yuen and Dr Atkinson at the Wesley Pain Management Clinic. When asked on the application form to set out “day, date and time of injury” he answered, “surgery on 16-12-03 elbow has slowly got worse”. The application was accompanied by a hand-written document in which Mr Stott pointed out that his chronic pain was “totaly seperate and in no way related to original injury [it] is a new problem that in its own right is a event or condition that is a very serious condition that with miss management from AMH can deteriorate very quickly as pointed out in doctors reports.” [sic] [8] This claim was rejected on 1 July 2004. AMH advised Mr Stott that the fractured left elbow injury and its subsequent effects were already the subject of an accepted application. The effects of surgery were a consequence of the original injury, and had already been taken into account when the decision was made to terminate compensation on the earlier claim. Only one claim for injury, it was asserted, could be made in respect of any one event. In any case, compensation was payable only in respect of an injury; and pain was merely a symptom, not an injury in its own right. The second application for review [9] The applicant lodged an application for review of this decision, at some point furnishing a medical certificate from a psychiatrist, Dr Patrick Wong, which certified that he was suffering from “Chronic Adjustment Disorder with Anxious and Depressed Mood; Panic Disorder; Chronic Pain Disorder”. Q-Comp directed AMH to obtain a report from Dr Wong. It duly did so; Dr Wong advised that he had seen Mr Stott once, in July 2004. He confirmed diagnoses of chronic adjustment disorder with anxious and depressed mood and chronic pain disorder, adding that in the past six months Mr Stott had also developed major depression, panic disorder and agoraphobia. Mr Stott was, Dr Wong said, totally incapacitated. [10] Q-Comp decided in Mr Stott’s favour. In her reasons, the review officer pointed out that s 31 of the WorkCover Queensland Act allowed for the sustaining of more than one injury as a result of an event. AMH had failed to consider chronic pain as a psychological injury. On the strength of the reports of Dr Wong and Dr Yuen, the review officer concluded that Mr Stott had suffered a psychological injury for which he was entitled to compensation. -- 4 of 8 -- 5 [11] On 23 July 2004, Dr Jennifer Gunn, a psychiatrist, examined Mr Stott at the behest of AMH. Mr Stott gave her an account of his unsatisfactory dealings with the Workers Compensation Department of AMH. Dr Gunn did not think Mr Stott had any present psychiatric injury, although he might have suffered an adjustment disorder with depressed and anxious mood. In her view, any symptoms related to AMH’s handling of Mr Stott’s claim, although a proposal for civil action against AMH by a number of former workers might also be playing a part. Mr Stott was able to work in any position “which was appropriate regarding his left arm”. AMH received that report from Dr Gunn on 27 August 2004, after the making of Q- Comp’s decision. AMH’s contentions [12] AMH argued that it had already made a decision, in April 2004, terminating compensation for Mr Stott’s injury and associated chronic pain; its response to his further claim for chronic pain on 24 June 2004 was merely a reiteration of that earlier decision; and Q-Comp in purporting to review that response was reviewing the same decision for a second time. Q-Comp had already had the issue of chronic pain to consider in the application for review of the first decision. It could then have sought further evidence or referred the matter back to AMH to obtain further evidence. The effect of Q-Comp’s first review decision was that chronic pain syndrome had not been established. [13] Mr Stott’s further claim for “chronic pain” did not amount, AMH contended, to a claim for a psychological injury. “Chronic pain” or “chronic pain syndrome” was not, in any event, a recognised psychiatric or psychological condition. For this proposition, AMH relied on a report obtained from Dr Gunn in September 2004 in which she had observed that “Chronic Pain Disorder is no longer a recognised term as per DSM IV” 3 . A decision on Mr Stott’s application of 7 May 2004, for compensation for depression, was still pending at the time Q-Comp decided the chronic pain claim. The result was that AMH had been deprived of the opportunity to address Mr Stott’s only real claim for psychological injury. [14] And even if chronic pain were a distinct psychological injury, AMH said, Mr Stott could apply for compensation for it only if he did so within 6 months after the entitlement to compensation had arisen. Dr Gilpin’s first reference in September 2003 to “post-traumatic residual” was relied on as fixing a time at which any entitlement was in existence. Section 158(1) of the WorkCover Queensland Act permitted waiver of that time constraint only in certain circumstances, which had not been shown to exist. [15] Finally, it was submitted, Q-Comp’s decision of 12 August 2004 had asserted that AMH had “made no decision” in regard to the claim for chronic pain. If that were so, Mr Stott should have been seeking a review of AMH’s failure to make a decision, rather than a decision. Q-Comp’s contentions [16] Counsel for Q-Comp seemed, at first, to be submitting that even if the application for compensation as made to AMH did not relate to a psychological injury, Q-Comp 3 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. -- 5 of 8 -- 6 was nonetheless entitled on review to make a decision on such an injury. However, in the course of argument, that position was resiled from; emphasis was instead placed on the need to avoid too fine a reading of the application for compensation. The decision under review was to be regarded as a rejection of a claim for psychological injury, in the form of chronic pain syndrome. Although there was a reference in Q-Comp’s reasons for decision to AMH’s having “made no decision”, it would not do to read such reasons too closely. AMH had had the opportunity to investigate Mr Stott’s claim and had chosen not to do so. Mr Stott’s remaining, unresolved compensation application for depression had no bearing on his application for review, because it was not in fact connected with the chronic pain claim. Finally, Q-Comp rejected the proposition that it had made any determination on a claim for chronic pain in its first review decision. Q-Comp’s powers and obligations on review [17] Section 494 of the WorkCover Queensland Act sets out the review unit’s powers and obligations relevant for these purposes: “(1) The review unit must, within 35 days after receiving the application, review the decision and decide (the “review decision”) to – (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute another decision. (2) If an application is about the failure to make a decision, the review unit may – (a) make the decision (also a “review decision”) after considering the information before it; or (b) return the matter to the decision-maker with the directions the review unit considers appropriate. (3) The decision-maker to whom the directions are given must comply with the directions.” In addition, s 493(1) empowers the review unit to require the self-insurer to provide further information. [18] Clearly, it would not be within the scope of the review unit’s powers under s 494 to consider whether compensation should be granted for a condition which had not been the subject of any decision or failure to make a decision. Nor, on the other hand, does the Act give any power to the review unit to perform its review function twice in respect of the same decision. [19] Notwithstanding the number of grounds set out in AMH’s application for an order of statutory review, AMH’s primary argument – that the claim for chronic pain was not for any psychological injury but for the symptoms of a physical injury which had already been dealt with – essentially entails a contention that Q-Comp acted beyond its jurisdiction in dealing with the second application for review. The Act -- 6 of 8 -- 7 does not stipulate facts which must be found before the review unit can act, but the situation is not dissimilar to one requiring a finding of jurisdictional fact. The question here is whether a pre-condition for jurisdiction existed: that is, whether Q- Comp had before it an application for review in respect of a claim for injury, not previously dealt with by it, which was the subject of a decision, or a failure to make a decision, by AMH. To determine that question, it seems inevitable that I reach a view on what Q-Comp dealt with on the first review, and what AMH was dealing with on the application for compensation for chronic pain. Was there already a review decision on chronic pain syndrome? [20] It is quite clear that in its decision of 1 July 2004, relating to the cessation of compensation for the fractured elbow, Q-Comp specifically desisted from considering any question of a psychological or psychiatric injury. Section 493(1) empowered it to require further information of the self-insurer, should it notice any lack in the material, but it did not oblige it to do so. In any event, in my opinion, Q- Comp was right not to take up Dr Gilpin’s suggestion of a psychiatric or psychological assessment, given that the decision under review was limited to consideration of the left elbow injury, and pain only as it constituted a symptom of that injury. It was certainly not the case that Q-Comp in its reasons on that occasion purported to make any decision about chronic pain syndrome as a psychological injury. Was the second review decision in respect of a psychological injury? [21] The focus then must shift to whether the claim of 24 June 2004 for “chronic pain”, considered and rejected by AMH, was merely a further claim in respect of the physical injury. There is no doubt that in the claim form Mr Stott distinguished between the original elbow injury and the chronic pain as distinct injuries. He described the latter as having occurred while he was on WorkCover and having had no witness, as opposed to the elbow break which he characterised as an earlier injury sustained at the AMH stockyards, to which there were witnesses. Significantly, in the list of doctors whom he had consulted for the injury he made no reference to the orthopaedic specialist, Dr Gilpin, but instead gave the details of Dr Yuen and Dr Atkinson from the Wesley Pain Management Clinic, who, he said, had treated him for “left elbow chronic pain”. The identification of the chronic pain as a specific and distinct injury was reinforced by the accompanying note, in which he spelt out that this was a condition entirely separate from the physical injury. It should have been clear to AMH that there was more being complained of than merely a symptom of the elbow fracture; that there was a chronic pain condition being treated as an injury in its own right. [22] AMH’s reliance on Dr Gunn’s assertion that the term “Chronic Pain Disorder” was no longer recognised in the DSM-IV seems to me more a matter of semantics than substance. As is clear from Dr Gunn’s report, the term has merely been replaced by a marginally different one, “Pain Disorder”; or for the purposes of this case, “Pain Disorder associated with Psychological Factors”. It does not seem to me that the accuracy of Mr Stott’s terminology can determine whether his claim was in truth for a psychological injury, as opposed to the physical injury to his elbow; and in any case it was within the province of the review unit to decide whether as a matter of fact the condition complained of was a psychological injury. -- 7 of 8 -- 8 The claim for compensation for depression [23] That Mr Stott had another claim for psychological injury seems to me beside the point. It was not before Q-Comp, and could not affect the issue it had to consider: whether the chronic pain claim had properly been dealt with. But in any event, that claim dealt with a different set of causes and effects: it was for depression arising out of alleged mistreatment of Mr Stott and mismanagement of his claim, an entirely distinct proposition from the claim for chronic pain, arising from the physical injury and subsequent surgery. The s 158 time limit [24] As to the contention that the application for compensation was brought out of time, more than six months after Dr Gilpin in September 2003 referred to “post-traumatic residual”, I note that s 168(1) of the WorkCover Queensland Act provides that entitlement to compensation for an injury arises on the day the worker is assessed by a doctor. Without wishing to define the extent of s 168, I express these reservations: I doubt that the reference to assessment is meant to embrace an assessment which does not actually cover the injury in question, and I do not think that an obscure reference by a doctor, whose specialty does not include the condition complained of, is a sufficient basis for concluding that there was an assessment. More importantly, the question of whether the time limit set by s 158 had been exceeded was not raised as an issue before the review unit, and can hardly be one here. Decision or failure to make a decision [25] AMH made errors in asserting that only one application could ever be made in respect of a single event and in dismissing the pain complained of by Mr Stott as a symptom, not an injury. Mr Stott was entitled to review of that response. The suggestion that Q-Comp in its reasons referred to a failure to make a decision misquotes those reasons: in fact, the review officer said that at the time of making its decision, “it was considered by [AMH] that they had made no decision.” That, quite clearly, is a reference to AMH’s approach, not the review officer’s. It seems to me, in fact, that AMH’s response might have been characterised as a failure to make a decision, giving Q-Comp the option under s 494(2)(b) of the WorkCover Queensland Act of returning the matter to AMH with directions to undertake a proper consideration of the application on psychiatric evidence; but it was open to Q-Comp instead to regard the decision as a rejection of the claim, and it clearly did so. Even if AMH’s response were a failure to make a decision, the review unit was equally entitled, under s 494(2)(a), to make the decision for itself, and that is what it has done. It has not acted outside its powers under the Act. Order [26] The application for review is dismissed. Subject to any compelling submission to the contrary, the first respondent should have its costs of the application. -- 8 of 8 --