Anagnostou v Woolworths Ltd & Anor [2000] QSC 160 [2001] 2 Qd R 1

SUPREME COURT OF QUEENSLAND CITATION: Anagnostou v Woolworths Ltd & Anor [2000] QSC 160 PARTIES: STELIOS ANAGNOSTOU (applicant) v WOOLWORTHS LTD (first respondent) WORKCOVER QUEENSLAND (second respondent) FILE NO/S: No 4024 of 2000 DIVISION: Trial Division PROCEEDING: Application that the respondents attend a conference pursuant to s 293 of the WorkCover Queensland Act 1996 ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 7 June 2000 DELIVERED AT: Brisbane HEARING DATE: 24 May 2000 JUDGE: Williams J ORDER: Application dismissed. Each party to bear its own costs relating thereto. CATCHWORDS: WORKERS’ COMPENSATION - ALTERNATIVE RIGHTS AGAINST EMPLOYER & THIRD PARTIES - ALTERNATIVE RIGHTS AGAINST EMPLOYER FOR DAMAGES AT COMMON LAW OR BY STATUTE - RIGHT TO PROCEED FOR DAMAGES - where applicant lodged a notice of claim for common law damages pursuant to s 280 for physical injuries sustained in a fall - where applicant subsequently lodged an application for a damages certificate pursuant to s 265 with respect to psychological injury arising out of the same incident - whether WorkCover compelled to attend a s 293 conference in respect of both injuries where WorkCover had not yet made an assessment of applicant’s psychological injury - s 293 considered - consequence of applicant seeking the further certificate is that the earlier notice is no longer s 280 compliant and proceedings consequent upon that notice are stayed until WorkCover has made an assessment of the psychological injury claimed - in circumstances, inappropriate to hold s 293 conference until all of the injuries are the subject of a s 280 notice and there has been a s 285 response by WorkCover. -- 1 of 8 -- 2 WorkCover Queensland Act 1996, s 33, s 42, s 43, s 253 (1)(a)(ii), s 265, s 280, s 282, s 285, s 293 WorkCover Queensland Regulation 1997, r 74(1) Re: B F Robinson, unreported, OS 11614 of 1998, judgment 29 January 1999 Re: J H Lankheet, unreported, OS 1959, judgment 19 March 1999 Steley v Harbrew Pty Ltd & WorkCover Queensland, unreported, Mackay 150 of 1999, judgment 22 December 1999 COUNSEL: D C Rangiah for the applicant BLP Hoare for the respondents SOLICITORS: Maurice Blackburn Cashman for the applicant Bradley & Co for the respondents [1] The applicant, Stelios Anagnostou, suffered some injuries consequent upon a fall in the course of his employment with the first respondent, Woolworths Ltd (“Woolworths”), on 30 October 1997. A claim for workers’ compensation was lodged and accepted by the second respondent, WorkCover Queensland (“WorkCover”). In the incident the applicant slipped and fell on his buttocks primarily sustaining a musculo-ligamentous disc injury to his lumbar spine. It would appear that workers’ compensation was paid from 6 November 1997 to 6 November 1998. [2] On 4 November 1998 WorkCover issued a Notice of Assessment that the applicant had sustained a non-certificate injury pursuant to s 253(1)(a)(ii) of the WorkCover Queensland Act 1996 (“the Act”); Reprint No 2 of that Act appears to be the applicable statute. That assessment was obviously based upon the decision of the Orthopaedic Assessment Tribunal of 30 October 1998. That Tribunal determined that “there does not exist in the worker an incapacity for work resulting from the injury of 30 October 1997 for which the application for compensation was made”. After referring to the applicant’s complaints and the results of the medical examination conducted by the Tribunal, its determination went on: “The Tribunal considers he has suffered from aggravation of pre- existing degenerative changes with temporary aggravation by the incident described. His ongoing symptoms are attributable to pre- existing changes. The Tribunal finds no permanent impairment resulting from the injury of 30 October 1998. (sic)” -- 2 of 8 -- 3 [3] After receiving the assessment pursuant to s 253(1)(a)(ii) of the Act the applicant decided to proceed with a claim for common law damages with respect to the injuries sustained in the fall which occurred on 30 October 1997. The next step taken by the applicant was the giving of a notice to WorkCover pursuant to s 280 of the Act; the notice in question was dated 2 August 1999. In that notice the applicant stated that he “was pulling a loaded pallet jack and slipped on a piece of meat/animal fat/tissue on the floor and fell backwards on to my buttocks”. Therein he described the “nature of all injuries” as “musculo ligamentous/disc injury” and identified the part of his body injured as his “lumbar spine”. He did refer in that notice to the fact that he had a “degenerative condition” namely “disc degeneration”. In answer to a question asking what symptoms he had as a result of the injury, he stated: “I suffer from constant pain in my lower back and have pain radiating down my legs. Any activity aggravates my symptoms. Sometimes my legs feel numb.” He then described in answer to Q66 how the injury affected him; that included the following statements which are relevant for present purposes: “I suffer from constant pain in my lower back and as a result I have not been able to successfully return to work in any capacity. I lack range of movement in my spine and lower limbs as a result of the injury ... ... This has also affected my life at home. I am constantly worried about supporting my family because I have no income. My symptoms also keep me awake at night and I suffer from lack of sleep which makes me feel tired and irritable and I take it out on others which has affected my relationships with them. As a result of my inability to work, chronic pain and lack of income and I sometimes feel depressed.” [4] The final point to note from that notice is that it included a claim for medication (Orudis and Deptran) for the rest of the applicant’s life. [5] By letter dated 13 September 1999 WorkCover complied with s 282 of the Act by stating that it was satisfied that the applicant’s notice of claim complied with s 280. The letter acknowledged that WorkCover’s further response pursuant to s 285 was due in February 2000. There was subsequent correspondence between the solicitors for the applicant and WorkCover in which WorkCover sought an extension of time for its s 285 response because it was awaiting a report from Dr Tuffley. WorkCover invited the applicant’s solicitors to nominate a convenient time for a compulsory conference so as to avoid delay occasioned by the late s 285 response. Then by letter dated 29 February 2000 the solicitors for WorkCover forwarded to the applicant’s solicitors a copy of Dr Tuffley’s report dated 28 January 2000. [6] In his report Dr Tuffley listed a medical report from Dr P McCombe of 6 June 1998 and recorded: “Currently, he is sleeping well with the assistance of a tricyclic anti- depressant drug, Doxepin 50 mgs, two at night. He is taking Clinoril 200 mgs daily.” Relevantly for present purposes the doctor made the following observations under the heading “opinion”: -- 3 of 8 -- 4 “Aggravation of pre-existing degenerative lumbar spondylosis. His current presentation is not consistent with the above diagnosis. There are many inappropriate signs exhibited in response to various components of the examination. ... It is consistent that the episode of the 30th October 1997 aggravated some pre-existing degenerative disease in his lumbar spine, and that a mild level of low back pain may cause him discomfort when he attempts to undertake heavy physical activity. ... He has now recovered from the episode of the 30th October 1997, and with the passage of further time, there will be no change in the state of the tissues injured. This man does have MRI proven degenerative disc disease at L4/5 and L5/S1. ... This man’s claimed level of disability is far in excess of his level of impairment. Whereas impairment is an objective assessment, disability relies on many subjective factors, including attitudes and beliefs, expectations, previous abilities, patient interpretation of the meaning of pain as it relates to tissue damage, the patient’s subjective complaints, psychological distress, illness behaviour, the potential for secondary gain (both psychological and material), premorbid personability, and the perception of fault. Almost all of this man’s disability relates to one or more of these subjective factors. ... I consider Mr Anagnostou would be capable of light to medium employment. ... Additionally, he has become depressed and has developed abnormal illness behaviour following the episode of the 30th October 1997 and taking all of these factors into consideration, it is unlikely that he will ever return to gainful employment. The prognosis for the state of his lumbar spine is quite reasonable. ... I do not consider that this man would be suitable for any form of orthopaedic surgery to his lumbar spine. ... I consider that this man does need psychological or psychiatric assistance if he is to have any chance of returning to gainful employment.” [7] As WorkCover had not delivered its s 285 response by 13 March the applicant’s solicitors threatened WorkCover with an application if it was not promptly received. That brought an immediate response from WorkCover dated 13 March 2000, in the following terms: -- 4 of 8 -- 5 “In accordance with Section 285 of the WorkCover Queensland Act we advise: - (1) Liability is denied; (2) WorkCover rejects the Claimant’s net settlement offer of $320,951.42; (3) WorkCover makes no counter offer of settlement because liability is denied. As suggested in your letter of 29 February we are seeking instructions on a time and day for conference in the first two weeks of May.” [8] On receiving the report from Dr Tuffley the applicant’s then solicitor “thought it prudent to have the Applicant assessed by a psychologist to ascertain whether he was suffering from a recognisable psychological condition rather than simply the type of depression consequent upon his back injury which is described in answer 66 of the Notice of Claim for Damages.” [9] In that regard it should be recorded that on the hearing of this application the applicant’s legal representatives conceded that prior to the delivery of the Notice of Claim for Damages of 2 August 1999 the solicitors had in their possession the report from Dr McCombe of 6 June 1998 which referred to the applicant being prescribed “tricyclic anti-depressants”. [10] The applicant’s solicitors received a report from P J Stoker, a clinical psychologist, dated 27 March 2000. He noted that at interview on 16 March 2000 the applicant presented with “agitated and angry affect”. He then was in “depressed mood”. Other relevant observations in that report include: “As a result of the index accident, he developed low frustration tolerance, exhibiting anger and agitation towards his wife, son and mother. ... He takes Deptran (an anti-depressant), Clinoril (an anti- inflammatory) and Panamax for pain relief. ... He suffers low frustration tolerance and is more angry and irritable. ... He is more depressed due to pain, loss of work with commensurate eroded esteem. ... He has suicidal ideation and sometimes feels like driving into the Brisbane river. ... He suffers insomnia. ... ... Mood Testing on the Beck Depression Inventory indicated that Stelios Anagnostou was suffering severe to extremely severe depression with a score of 32 with some suicidal ideation. ... -- 5 of 8 -- 6 As a result of the accident, he now suffers low frustration tolerance, is more angry and irritable, is more depressed, is worried regarding his future physical health, is angry with his former employer, has suicidal ideation, suffers insomnia, has lower libido, has poorer self esteem, is more suspicious/distrustful, has become more introverted, and is experiencing financial difficulties. His behaviour after the accident, his psychological history and testing is consistent with the psychological diagnosis of major depressive disorder of moderate to severe symptomatology... . It is also my opinion that he has a chronic pain disorder due to psychological and physical factors. ... ... At present, Stelios Anagnostou’s prognosis is guarded. With therapy and medication I would expect his psychological health to improve. However, unless this man is able to return to work, he will always have a high level of residual psychological disability. If therapy is successful, he will have a permanent partial psychological disability in the order of 15-17%. Otherwise he will have a 22-24% permanent partial psychological disability.” [11] In a letter of 31 March 2000 to WorkCover’s solicitors, the applicant’s solicitors forwarded a copy of Stoker’s report and stated that they were currently having the applicant complete “an Application for Damages Certificate in relation to his psychological injury.” The letter made it clear that they intended including psychological injury in the claim for damages. [12] Subsequently the applicant completed an Application for Damages Certificate bearing date 8 April 2000; that notice was given pursuant to s 265 of the Act on the ground that the applicant had not previously lodged an application for compensation based on a psychological or psychiatric injury. [13] The application of 8 April referred to the fall on 30 October 1997 and gave as details of the relevant injury: “psychological injury”. It referred to the earlier claim for compensation with respect to the injury to the lumbar spine. [14] The solicitors for the applicant, asserting that the conference pursuant to s 293 had to be held within 3 months after WorkCover gave its notice under s 285, purported by letter dated 29 March 2000 to fix 10 a.m. on Wednesday, 3 May 2000, as the time for the holding of the conference. In a letter dated 6 April 2000 solicitors for WorkCover replied that in their view such a conference could not be held with respect to the injuries specified in the Notice of Claim for Damages dated 2 August 1999 alone. It was their view that the Act required “all injuries the subject of the claim” to be assessed and a Notice of Claim for Damages to be lodged with respect to all injuries before such a conference could be held. In a letter of 17 April 2000 the applicant’s solicitors maintained that the conference had to be held on 3 May. [15] The applicant’s solicitors endeavoured to overcome the contention of WorkCover by asserting in a letter of 20 April 2000 that the original “Notice of Claim for -- 6 of 8 -- 7 Damage was compliant as at 9 August 1999” and that their client “only became aware that he was suffering from a related psychological injury after that date”. [16] The position adopted by WorkCover was that the applicant should either proceed to have his alleged psychological injury assessed and then lodge a fresh Notice of Claim for Damages referring to both the back injury and the psychological injury or abandon the claim for psychological injury and proceed with a claim limited to the injuries stated in the Notice of Claim for Damages of 2 August 1999. [17] No representatives of WorkCover attended the conference organised by the applicant’s legal representatives on 3 May 2000, though the applicant and appropriate representatives from his side were present. [18] The Act differentiates between physical injury and psychological injury arising from an “event” as defined in s 33; sections 42 and 43 are clearly premised on such a distinction. There are now a number of single judge decisions which recognise that there must be an assessment by WorkCover of the psychological injury before that can be joined in an action for common law damages with physical injuries resulting from the “event”. It is sufficient to refer to Re B F Robinson, unreported, OS 11614 of 1998, judgment 29 January 1999, Re J H Lankheet, unreported, OS 1959 of 1999, judgment 19 March 1999 and Steley v Harbrew Pty Ltd and WorkCover Queensland, unreported, Mackay 150 of 1999, judgment 22 December 1999. [19] Section 280(3) requires the Notice of Claim for Damages to include the particulars prescribed under a regulation. Regulation 74(1) of the WorkCover Queensland Regulation 1997 stipulates that the Notice must include full particulars of all injuries alleged to have been sustained by the claimant because of the event. The applicant and his legal advisers must be held to have known as at 2 August 1999 that the applicant was suffering from depression. They were then admittedly in possession of the report from Dr McCombe of 6 June 1998 which referred to the applicant taking “tricyclic anti-depressants”. Further in that Notice a claim was made for future out of pocket expenses on the basis that the applicant would require one packet of Deptran per month for the rest of his life. The report of Stoker indicates that Deptran is an anti-depressant. In other words, the Notice included a claim for anti-depressants for the rest of the applicant’s life. [20] In those circumstances neither the applicant nor his legal advisers can say that the first awareness of a possible psychological condition came from the report of Dr Tuffley. Rather the applicant’s legal advisers became aware of the omission from the Notice of 2 August 1999 of the applicant’s psychological condition when they received Dr Tuffley’s report. On becoming aware that the Notice of 2 August 1999 was deficient they took the appropriate step of applying for a certificate with respect to psychological injury. [21] But the consequence of that, in my view, is that any proceedings consequent upon the earlier Notice were stayed until WorkCover had made an assessment of the claim for psychological injury pursuant to the Act. The request for the further certificate was tantamount to an admission that the Notice of 2 August 1999 was not a complying Notice for purposes of the Act. It is not a matter of WorkCover changing its mind on the question whether or not that Notice was compliant; the -- 7 of 8 -- 8 applicant by his conduct in seeking a further certificate concedes that the earlier Notice is no longer compliant. [22] In the circumstances it would be entirely inappropriate to hold a s 293 conference prior to the claim for psychological injury being assessed. The applicant relies on the fact that s 293(1) says the conference “must” be held within 3 months of WorkCover's s 285 response but, in my view, that is dependent upon there being no change in the basis of the claim. There could be no final resolution at a conference held in those circumstances because only the physical injury could be meaningfully addressed. [23] The Act provides for a number of technical steps to be taken before an injured worker can commence and prosecute a claim for common law damages. Most of those steps have to be taken by the injured worker, but WorkCover also has statutory obligations to meet in relation thereto. There must be co-operation from both sides and it would be improper for WorkCover to exploit technicalities rather than co-operate to ensure that a just claim is adjudicated on by the courts. It is unusual for a potential defendant to have the power to determine whether or not it may be sued, but that is in practical terms the consequence of this legislation. [24] By the Notice of 2 August 1999 WorkCover was informed that the applicant was taking anti-depressants regularly and the answer to Q66 clearly indicated that there were some psychological consequences associated with the physical injury. That means that WorkCover was not taken by surprise by the receipt of the further request pursuant to s 265. It should have been able to formulate its response promptly, but as yet its decision has not been communicated to the applicant. [25] The actual application before the court is for an order that Woolworths and WorkCover attend a conference pursuant to s 293 of the Act to be organised and held on or before 14 June 2000. Given what has been said previously it will be obvious that in my view it would be entirely inappropriate to make such an order. No meaningful conference can be held until all of the injuries are the subject of a Notice pursuant to s 280 and there has been a response by WorkCover thereto pursuant to s 285. [26] If all parties had directed attention to processing the additional claim it may well be that a conference could have been held by about 14 June 2000, but that is now unlikely because efforts have been directed to the application to the court now under consideration. [27] The problems arose partly because the applicant did not include particulars of all injuries in the Notice of 2 August 1999, but they have been compounded, in my view, by delays on the part of WorkCover in responding pursuant to s 285 to the original Notice and in not speedily processing the subsequent application pursuant to s 265. [28] In all the circumstances the appropriate order is that the application be dismissed but that each party bear its own costs relating thereto. -- 8 of 8 --