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SAME INJURY, DIFFERENT DESCRIPTIONS

25 March 2013

 

Ley v Woolworths Limited [2013] QSC 59

Background
The Claimant was a butcher.  He was required to carry boxes of meat weighing up to approximately 25kgs at or above shoulder height and to lift the boxes in cramped conditions. On 4 January 2011 the Claimant felt pins and needles down his left arm and into his left hand while carrying out his duties. The Claimant attempted to work for a few more weeks but was unable to return to work from 1 February 2011. The Claimant lodged a Notice of Claim for Damages for a cervical spine injury occurring over the period December 2008 to February 2011.

Woolworths had issued a Notice of Assessment of 0% permanent impairment for "exacerbation of pre-existing degeneration of cervical spine". The Notice of Assessment specified a date of injury of 4 January 2011. This date of injury was selected based on what the Claimant had written in his original application for compensation in the statutory claim and also on the findings of Woolworths' medical expert.

Woolworths contended that the Claimant should withdraw his Notice of Claim for Damages on the basis that the injury specified in the Notice of Assessment (occurring on a specific date) did not correlate with the injury as claimed (occurring over a period of time).

The Claimant sought a declaration that he was entitled to seek damages pursuant to section 237(1)(a)(i) of the Workers' Compensation and Rehabilitation Act 2003 (WCRA) for the neck injury as specified in the Notice of Claim for Damages.

Decision
Justice North of the Supreme Court in Townsville found that the injury referred to in the Application for Compensation should be regarded as the same injury that was listed in the Notice of Claim for Damages. The Notice of Assessment issued by Woolworths was therefore a valid assessment with respect to the neck injury claimed in the Notice of Claim for Damages.

The opinion of Woolworths' medical expert that the injury did not occur over a period of time was a matter of medical opinion but was not a conclusion on the meaning of the term "injury" which was a mixed question of law and fact.

The nature, extent and cause of the neck injury and the appropriate amount of damages were matters to be explored under the pre-court and conference procedures in chapter 5 of the WCRA, and, if necessary, at a trial. Justice North made it clear that his findings in the present Application did not predetermine these issues.

Comment
This decision confirms a line of reasoning in previous court decisions that a Notice of Assessment is issued for an "injury" rather than an "event". The Claimant's entitlement to seek damages for an injury will not be affected in most circumstances where there is variation in the description of the injury between the statutory claim and the Notice of Claim for Damages.

A defendant may still defend the claim on the basis that the injury did not occur over a period of time or that any injury that occurred over a period of time was not caused by the employer's negligence.

 

For more information contact:

Daniel Sullivan | Associate
Mullins Lawyers
t +61 7 3224 0358
f +61 7 3224 0333
dsullivan@mullinslaw.com.au

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