Compensation for Injured Worker: Jockey Successful in Claim 9 Years post-injury

The case of Simon Blackwood (Workers’ Compensation Regulator) v Ian Andrew Toward looks at an injured worker and old injuries.

Facts 

Mr Toward was a jockey who was injured on 21 August 2004. On that date, the horse he was riding flipped over the barrier prior to the start of a race. Mr Toward was pinned and subsequently injured.

Mr Toward was described by the Court to have a quality that was “completely admirable – stoicism in the face of pain”.

Notwithstanding the injury, Mr Toward rode in other races that day, and continued to ride in the week after.

However, Mr Toward’s pain continued, and on 1 February 2005, Mr Toward was examined by a general practitioner (Mr Simonds), who referred Mr Toward to an orthopaedic surgeon (Mr Pozzi).

However, no application for compensation was commenced until July 2013, when Mr Toward again consulted Mr Simonds and Mr Pozzi. In this regard:

1. 1. A Workers’ Compensation Medical Certificate was issued by Dr Simonds on 16 July 2013 with the diagnosis of severe arthritis in the left hip. The date of injury was noted as 21 August 2004, and the cause of injury as “Horse bucking and falling within a stall pinning Ian under. Numerous other injuries as jockey.”
   2. On 17 July 2013 Mr Toward commenced an application for compensation with WorkCover Queensland, with the injury claimed as osteoarthritis of the left hip.

At first instance, that application was rejected on the basis that there was insufficient medical evidence to support the claim. On review the decision was upheld.

Subsequently the matter was appealed to the Queensland Industrial Relations Commission, where the Worker’s Compensation Regulator (for the first time) raised the issue of whether the application had been made within the relevant time limit of 6 months under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”).

The Commission found that the application had been made in the time prescribed.

The matter was subsequently heard before the Industrial Court of Queensland.

Issues in Dispute

There were two main issues considered by the Court, which were:

1. 1. For the purposes of the Act’s time limit, how should the expression ‘assessed by a doctor’ be interpreted?
   2. Whether Mr Toward was assessed as having an injury? And if so, when?

‘Injury Assessed by a doctor’

Relevant to Mr Toward’s circumstances is section 131 of the Act, which states that:

“An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises”.

An entitlement to compensation is defined in section 141 of the Act, which states that:

“(1) The entitlement to compensation for an injury arises on the day the worker is assessed by—

(a) a doctor; or

(b) if the injury is a minor injury—a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or

(c) if the injury is an oral injury and the worker attends a dentist—the dentist.

(2) However, any entitlement to weekly payment of compensation starts on—

(a) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury—the day after the worker stops work because of the injury; or

(b) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury— the day the doctor, nurse practitioner or dentist assesses the injury.”

In considering whether Mr Toward’s application was made within the relevant time limit, the Court considered the previous decision of WorkCover Queensland v Downey (decided in the Queensland Industrial Relations Commission), Hall P said (of the predecessor of section 141 of the Act) that:

“…it seems to me that the expression ‘assessed by a doctor’… must be taken to mean ‘assessed by a doctor as resulting in total or partial incapacity for work’.”

The Court took the view that Hall P erred in his interpretation of the expression ‘assessed by a doctor’ of section 141(1) of the Act, as Hall P’s interpretation would exclude other types of compensable injury (for example, death).

The Court held that ‘assessed by a doctor’ pursuant to section 141(1) of the Act should be interpreted as “assessed by a doctor as suffering a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to [an injury that may be compensated under the Act]”.

Was Mr Toward assessed as an injured worker? And if so, when?

Fortunately for Mr Toward, the evidence presented showed that there was no specific connection made by the medical practitioners between the “horse flipping over and the condition of Mr Toward at the time he was first seen” in 2005.

In this regard, the Court held that there must be some evaluation, conclusion or expression of opinion that “the injury arose out of the employment.”

The Court took the view that Mr Toward’s doctors only directed themselves to whether the injury arose out of the employment in 2013.

The evidence revealed that prior to 2013, each of the doctors were concerned with the treatment of Mr Toward, but had not directed their minds to the question of which physical injury arose out of employment.

Therefore, the Court held that Mr Toward’s claim was made within the relevant time limit under the Act.

Comments 

In our view, this decision is significant, as it provide new guidance on the definition of ‘assessed by a doctor’.

This decision may potentially give employees an opportunity to commence a claim pursuant to the Act in relation to an old injury, if no medical advice has previously been provided which considered whether the old injury arose out of employment.

This decision may “extend the time” for an employee’s statutory benefits claim.

For more information 

For an injured worker, read about our Brisbane Personal Injury Lawyers, our No Win No Fee PI services, our free initial PI consult or ask a personal injury question directly through our blog.

When Parties Don’t Agree: Injury & Medico-legal Examinations

Case Note: Slaughter v Harvey [2021] QDC 156

Facts

Dr John Slaughter was a treating psychiatrist for several years. The defendant, Mr Dean Harvey, who is the plaintiff in the substantive application, attended upon Dr Slaughter between 1984 and 2018 for psychiatric advice and treatment.

Harvey alleges that Dr Slaughter advised him that he was a sufferer of a depression and it would require lifelong treatment with a significant amount of prescription drugs. In or about 2016, Harvey stopped taking his prescription medication however, he continued to see Dr Slaughter for appointments until 2018.

Harvey alleges that since ceasing his medication he has recovered his “exuberant enjoyment of life” and attended upon other psychiatrists for a second opinion whereby he was diagnosed as, suffering no psychiatric illness. Further he was diagnosed as to likely never having suffered such an illness. It is alleged that Harvey, subject to the prescribed medication, experienced numerous serious side effects which caused him loss and personal injury.

In 2019, Harvey sought leave of the Court to commence his claim in the District Court against Dr Slaughter for damages of personal injury caused by his alleged battery, negligence, misleading and deceptive conduct as well as breach of contract over his treatment period.

Leave was granted and proceedings commenced in the District Court however, they were stayed pending completion of the pre-Court processes required under Chapter 2, Part 1 of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’). At the time of judgement, those processes were still on foot.

In this proceeding, which was commenced by an originating application, Dr Slaughter sought:-

1. 1. The PIPA claim be permanently stayed unless Harvey underwent an independent medico-legal examination by Dr John Chalk;
   2. In alternative, the PIPA claim be permanently stayed unless on or before 31 August 2021 Harvey underwent a medico-legal examination by a psychiatrist, to be selected by Dr Slaughter from Dr Jill Reddan, Dr Jon Steinberg or Dr John Chalk;
   3. The medico-legal exam was to occur on such terms as the psychiatrist directed; and
   4. Copy of the report from that examination be provided to Dr Slaughter’s legal representatives.

Essentially, this application was made under section 35 of PIPA whereby a party’s failure to comply with a duty imposed under section 25 of PIPA, the court may make an order that the parties must take specific action to remedy this failure, and the Court may make ancillary or consequential orders.

Dr Slaughter contended that, in accordance with section 25 of PIPA, he had requested Harvey undergo a medical examination by a doctor, selected by Harvey, from a panel he provided. Harvey had refused to do so and sought the imposition of conditions on the examination which were not acceptable to any member of the panel provided by Dr Slaughter.

The law

Section 25 (under Division 2) deals with the “examination of claimants by medical experts in absence of agreement between parties”. It states:-

(1) This section applies if a respondent wants to obtain an expert report about all or any of the following, but fails to obtain the claimant’s agreement—

(a) the cause or probable cause of the incident alleged to have given rise to the personal injury to which the claim relates and whether, in the expert’s opinion, 1 or more persons (who may be named), are responsible for, or contributed to, the incident;

(b) the cause or probable cause of the personal injury to which the claim relates and whether, in the expert’s opinion, 1 or more persons (who may be named) are responsible for, or contributed to, the injury;

(c) the claimant’s medical condition or prospects of rehabilitation;

(d) the claimant’s cognitive, functional or vocational capacity.

(2) The claimant must comply with a request by the respondent to undergo, at the respondent’s expense either or both of the following—

(a) a medical examination by a doctor to be selected by the claimant from a panel of at least 3 doctors with appropriate qualifications and experience in the relevant field nominated by the respondent in the request;

(b) an assessment of cognitive, functional or vocational capacity by an expert to be selected by the claimant from a panel of at least 3 experts with appropriate qualifications and experience in the relevant field nominated by the respondent in the request.

(c) However, a claimant is not obliged to undergo an examination or assessment under this section if it is unreasonable or unnecessarily repetitious.

(d) If 3 doctors or experts with appropriate qualifications and experience in the relevant field are not available for inclusion on a panel under subsection (2), the number on the panel may be reduced to 2.

Section 35 provides the Court with the power to enforce parties to comply with section 25. It states:-

(1) If a party fails to comply with a duty imposed under division 1 or 2, the court may, on the application of another party to whom the duty is owed, order the first party to take specified action to remedy the default within a time specified by the court.

(2) The court may make consequential or ancillary orders, including orders as to costs.

Issues before the Court

Harvey opposed Dr Slaughter’s application on, effectively, three grounds.

1. 1. Dr Slaughter’s lawyers had not clearly stated which issues the examination and report would be addressing;
   2. Dr Slaughter had not demonstrated that the doctors he had chosen to form the panel had the appropriate qualifications and experience in all the fields that were nominated by him in his request;
   3. The examination that Dr Slaughter was unreasonable because the suggested doctors would not comply with the conditions Harvey had insisted on for the examination.

Authorities relied on

Dr Slaughter relied on the Court of Appeal’s decision in Day v Woolworths Group Ltd to support the position that a claimant cannot seek to impose conditions on attending a medication examination, nor refuse to attend, if the way it will proceed is objectively reasonable.[1]

Harvey relied on the reasons of his Honour Justice Burns in Bona v Jeffries as to the proposition that a defendant, and his insurer, must satisfy the Court that the examination sought is not unreasonable. A claimant is not considered to have “defaulted” under section 25 of PIPA (for the purpose of section 35 PIPA) where a claimant has refused a request to be examined that is unreasonable.[2]

Harvey further submitted that to determine whether the examination sought is reasonable, the Court (and the parties) must consider the claimant’s personal circumstances. In this case, the Court held that having consideration to Harvey’s personal circumstances and the reasoning of his claim in the matter, it would be unreasonable to require him to attend upon a psychiatrist for the purpose of examination without special procedures in place, which he requested.

Issue 1: the issues were not clearly stated

It was argued, by Harvey, that the legal representatives of Dr Slaughter had not provided consistent correspondence to set out the issues for which the examination was required.

The Court held that the correspondence may have had difference in expression in how the list of issues were states however, he did not form the view that those difference rendered the correspondence as having failed to comply with section 25(1) PIPA.

Issue 2: the appropriateness of the proposed doctors

The Court held that each of the proposed psychiatrists had the relevant and appropriate experience to conduct the examination sought noting that the report would be provided from the view of a psychiatrist as opposed to a pharmacologist or neurologist.

Issue 3: Whether the examination sought was unreasonable

Harvey sought to impose seven conditions on the examination:-

1. 1. A support person be permitted to attend and be present with him throughout the examination;
   2. He be permitted to voice record the examination;
   3. Prohibit his photograph being taken;
   4. The examination go for no longer than 1 ½ hours;
   5. No invasive tests to be conducted;
   6. Dr Slaughter not provide a copy to his insurer any medical information provided to the examining practitioner nor the report however, a representative of the insurer may attend Dr Slaughter’s solicitors’ office to view a hardcopy of this material;
   7. If an “unrecognised condition” is discovered during the examination, the examining doctor is to inform Harvey directly of the condition, the diagnostic tools and criteria used to diagnose together with the clinical data and evidence relied on to diagnose the condition.

At the time of this proceeding, Harvey only sought to impose conditions 1-5.

Having considered each of the conditions,[3] the Court held that it was unreasonable for an examining doctor to require Harvey’s photograph be taken and to insist that the examination take place for more than two hours in a single session. It would be reasonable to allow a break of at least 30 minutes, or longer if Harvey required it. That may mean that several sessions are required over a number of days which Harvey would be obligated to attend under section 25 PIPA.

Further, the Court held that it would not be unreasonable for the examining doctor to prohibit Harvey from voice-recording the examination sessions and/or having a support person present.

Outcome

The Court held that the appropriate course in the circumstances was to adjourn this application to allow Dr Slaughter to ascertain whether the psychiatrist whom Harvey selected from his panel, or the remaining doctors on the panel would be willing to conduct the examination with the reasonable conditions imposed.

If the chosen doctor, or the remaining panel doctors, agree to the conditions, Harvey will be obligated to comply with Dr Slaughter’s request for examination. Should only two of the doctors agree then pursuant to section 25(4), the panel may be reduced to those two doctors and Harvey would need to select one of them as the examining doctor however, should none of them agree then he would not be obligated to attend an examination by any of them.

The application was adjourned and costs were reserved.

This article was written by Ashleigh Fanning

Footnotes

[1] [2018] QCA 105, [25]-[28].

[2] [2021] QSC 84, [24]-[25], [30].

[3] Slaughter v Harvey [2021] QDC 156, [22]-[43].

What happens if I intentionally injure someone in order to protect myself and/or my family?

Background 

On the 14th of September 2009, in the case of Corowa v Winner & Anor [2019] QDC 135, 

Winner assaulted Isaiah Corowa in order to protect his fiancée and grandmother from being physically and verbally abused. Winner deliberately drove his vehicle at Isaiah Corowa and consequently drove over Corowa’s right foot, which lead to hospitalization and Corowa suffering four separate injuries to his foot, listed as follows:  

• • A severe crush injury to the right foot resulting in an extensive soft tissue degloving injury requiring extensive plastic surgery and skin grafts. 
  • A fractured dislocation right mid-foot region was treated surgically with multiple joint arthrodesis or fusion.  
  • An avulsion fracture of the medium aspect of the right navicular and  
  • A fracture of the base of the right fifth metatarsal bone 

The plaintiff sought compensation from the insurer for the injuries he suffered. The case was taken to court ten years after the incident and unfortunately, Winner had deceased before the hearing.  

Differing witness accounts 

During the court hearing, six people, including Corowa, gave their recollections of the events from the 14th of September 2009. This was almost ten years before the court hearing proceeded in 2019. As Winner had deceased, his statement from 2009 was used as his recollection. Among these seven accounts, there were several discrepancies and contradicting recollections put forward. Ultimately, the judge decided not to accept the recollection of events put forward by Corowa or his two friends who were with him on the 14th. 

Several factors led to this decision, including that: 

• • Corowa’s statement in 2009 and his statement in court had substantial differences and numerous contradictions. 
  • Corowa had a significant history of drug use. 
  • Corowa had a prior criminal history involving numerous convictions for dishonesty and violence.  

Recollections given by Winner’s fiancée (Erin) and grandmother (Joy) were accepted as the most accurate recall of events and many of the decisions made were based on their statements as evidence.  

While these statements also had some differences, Erin and Joy no longer had an interest in protecting Winner (as he was now deceased) and any differences in the recollections could be linked with the trauma of that day and the substantial lapse of time after the incident occurred. 

Furthermore, Erin and Joy’s statements were also consistent with the neighbour who was accepted as an independent witness and viewed as giving honest and reliable evidence. 

So, what happened on the 14th of September 2009? 

The version of events accepted are summarized as: 

• • On the 14th of September 2009, Winner reversed out of his driveway as Corowa and two of his friends walked down from a nearby house.  
  • Winner either almost hit them by accident or came near enough that they felt he was close to hitting them.  
  • This provoked Corowa and his friends, causing them to abruptly hit the car and abuse Winner, who in turn abused them back.  

These events would later lead to the final act of conflict between Corowa and Winner which led to Corowa’s foot injury. 

• • Later that day, Winner encountered the three men again while driving past some shops. The three men threw an object (likely to be a bottle) at the car and damaged Winner’s vehicle.  
  • The men later returned to Winner’s home. 
  • At that stage, Joy was putting the bins out on the footpath with the assistance of Erin.  
  • She noticed the men arriving from the back of the house with two pulled palings from the fence to be used as weapons. 
  • Corowa was in possession of a replica pistol which he used to advance on Joy and hit the window of the car she had managed to get inside.  
  • Winner approached the three in his car which caused Lama and Scott to retreat from the attack, however, Corowa did not.  
  • At this point, both Erin and Joy were still in danger from Corowa.  

Winner was aware that Corowa had a weapon (although he thought it was an axe) and acted to defend his fiancée and his grandmother from the attack by driving his car at Corowa and consequently running over his foot. 

Were Winner’s actions justified? 

When Winner drove his vehicle at Corowa, this was recognized as assault. The question is whether that assault by Winner was justified, which would determine the outcome of the court hearing. 

For Winner’s action to be justified, it must be viewed as a reasonable action that he carried out to protect himself, his fiancée or his grandmother from the attack. 

It was found that while Winner was in control of a significant weapon, a motor vehicle, and his actions were likely to cause harm, he was confronting three armed men and it could not be expected for him to leave nor was it practical for him to exit the car and try and fight these men by himself. 

Decision 

The Judge found that Winner’s actions were reasonably necessary to protect his fiancée and his grandmother and accordingly, the defence of self-defence had been established. 

Corowa’s claim was dismissed and he was ordered to pay the insurance company’s costs.  

If you have any questions regarding personal liability or compensation where there may be self-defence of contributory negligence, please contact our office to speak with a litigation lawyer today. Call us on (07) 3252 0011 and speak with one of our client engagement team today.