Dallabona v WorkCover Queensland [2000] QSC 127

scoo/1-;;_7 SUPREME COURT OF QUEENSLAND REGISTRY: ROCKHAMPTON NUMBER: S155 OF 2000 Plaintiff: ANN ELIZABETH DALLABONA and Defendant: WORKCOVER QUEENSLAND JUDGMENT - DEMACK J DELIVERED the 28th day of April 2000 CATCHWORDS: WorkCover - Injuries to both wrists - Notices of Assessments issued - Claim for depression rejected as not being an "injury" - Appeal process not concluded - Claim for depression cannot be included in notice of claim. Reat v. The University of Queensland [2000] QSC 035 followed. COUNSEL: GCrow A Mellick SOLICITORS: VAJ Byrne & Co. O' Maras HEARING DATE/S: 17th day of April, 2000. Plaintiff Defendant Plaintiff Defendant -- 1 of 5 -- SUPREME COURT OF QUEENSLAND REGISTRY: ROCKHAMPTON NUMBER: S155 OF 2000 Plaintiff: ANN ELIZABETH DALLABONA and Defendant: WORKCOVER QUEENSLAND JUDGMENT - DEMACK J DELIVERED the 28th day of April 2000 1. On 10th July 1997, Ms Dallabona suffered an injury to her right hand, wrist and forearm in the course of her employment with Boyne Smelters Limited. The injury was of a crushing type. She was treated at work and at the Gladstone Hospital. Her right arm was put in a sling. Despite discomfort, she returned to work. She performed light duties for an extensive period. In due course she experienced symptoms in her left wrist. Later still she suffered depression. 2. A notice of assessment in respect of the right wrist was issued by Work Cover on 20 May 1999. The degree of permanent disability was assessed at 0% and lump sum compensation of $0 was offered. A notice of assessment in respect of the left wrist was issued by WorkCover on 14 December 1999. The degree of permanent disability was assessed at 0% and lump sum compensation of $0 was offered. -- 2 of 5 -- 3. On 2 February 1999 a claim for workers' compensation was made in respect of the depression. This was rejected on 8 April 1999, on the basis that the "depressive disorder does not relate to your employment where your employment was the major .significant factor causing the injury". A review of this was rejected. An application for a hearing by an Industrial Magistrates was lodged in July 1999. It has not yet occurred. Bearing in mind that the plaintiff's claim is that her depression is a consequence of a physical injury sustained on 10 July, 1997, it is outrageous that this application before the Industrial Magistrate has been delayed so long, apparently at the instigation of WorkCover. It seems to be necessary to refer to s. 5(4 )(b) of the WorkCover Queensland Act 1996 ("the Act") on a regular basis to remind WorkCover of its obligation to treat injured workers fairly. 4. On 14 January 2000, Ms Dallabona served a notice of claim for damages in respect of the right wrist, the left wrist and the depression. In spite of its obligations under s. 282, WorkCover made no response to this notice of claim until its solicitors wrote on 14 April 2000 in response to an application filed on 24 March 2000 for orders under ss 304 and 305 of the Act. The application was returnable on 17 April 2000, so the letter of 14 April 2000 could not be described as timely, either in response to the notice of claim or to the application. The letter indicated that as WorkCover Queensland determined that, in respect of the depression, Ms Dallabone had not suffered an "injury" as defined in the Act, the notice of 2 -- 3 of 5 -- claim was defective to that extent. If that part of the claim were withdrawn Workcover will confirm that the notice of claim is a complying notice of claim. 5. At the time Mr Crow, who appeared for the applicant, prepared his written submissions, he had not received the respondent's letter of 14 April 2000, He was able to rely at that time on my decision in Callaghan v. WorkCover (unreported 31 March 2000) where I hold that as WorkCover had not responded to a notice of claim there was non compliance with s.280, and so the jurisdiction given by s.305 was enlivened. The letter of 11 April 2000 removed that argument. In my opinion, the judgment of Shepherdson J in Reat v. The University of Queensland [2000] QSC 035 is correct. That was a case where a claim for acute anxiety and depression was rejected by WorkCover and an appeal to the Industrial Magistrate had not been determined. His Honour held that the applicant in that case was not a person who could seek damages under s. 253 of the Act. 6. That means that the claim for depression cannot be pursued at this point. It also means that the application must be dismissed. 7. It follows from WorkCover's ruling that the claim in respect of depression is not an "injury" as defined in s. 34(1) of the Act, and consequently the 3 -- 4 of 5 -- provisions of the Act do not apply. It may be necessary for Ms Dallabona to sue her employer at common law in respect of this matter. 8. The application is dismissed. There will be no order for costs because of the outrageously late response by WorkCover to the notice of claim. 4 -- 5 of 5 --