In the recent decision of Otto v Mackay Sugar Limited and Anor [2011] QSC 215 the Plaintiff allegedly sustained personal injuries over a period of time from September 2003 to 19 October 2009 during the course of his employment with Mackay Sugar Limited (the Defendant).  The Plaintiff alleged that he had sustained a lumbar spine injury as a result of duties associated with washing down cooling towers in early 2009. 

The Plaintiff alleged that his pain improved during the ‘slack period’ after the washing down work ceased in February 2009 but then from June 2009 he began to experience increasing back pain during the ‘crushing period’ but was able to continue working until 25 September 2009 when he awoke with back pain to the extent that he could not attend the workplace.  The Plaintiff’s evidence was that he then attended upon a general practitioner who certified him as fit for suitable duties until 19 October 2009 when he was told that his Workers’ Compensation Application had been rejected.  The Plaintiff alleges that because he was unable to be medically certified as fit to return to work his employment was terminated.

As a result of discussions between the Plaintiff and WorkCover’s Statutory Claims Officer the Plaintiff’s Application for Compensation was rejected on the basis that the Plaintiff could not attribute his injury to any specific event but rather ‘any number of activities’ he performed in his duties.  WorkCover’s rejection of the Application for Compensation also relied upon evidence from Dr Perumal who was of the view the Plaintiff’s symptoms were due to natural progression of an underlying condition and not any specific event.

When the Plaintiff completed his Application for Compensation the date of the injury was said to have been 13 February 2009, ‘12:00am’ were inserted and ‘no specific injury time or date’ appeared in the Application for Compensation.  The Court noted that the Plaintiff lodged an Application for Review with Q-Comp on 16 September 2010 partly on the basis that the Plaintiff’s injuries occurred over a period of time so that any failure to identify a specific event was not relevant.  The Application for Review was subsequently withdrawn on the basis that it related to a claim for a specific injury on 13 February 2009 rather than to a claim for an injury sustained over a period of time.

The Court held that there was no evidence that any particular event caused an injury to the Plaintiff on 13 February 2009 and the Court concluded that it was artificial to treat the Application for Compensation as referring to an event that actually happened on 13 February 2009 because not even the Plaintiff could recall an event occurring on that date.  Accordingly the Court was satisfied that the true cause of action was said to be an over a period of time claim.

The Defendant contended that the Plaintiff was statute barred from seeking common law damages and ought to have pursued other declaratory relief by seeking a review of WorkCover’s decision, than a review to Q-Comp and potentially to an Industrial Magistrate, however, the Court held that there was no particular provision within the Workers Compensation & Rehabilitation Act 2003 that precluded an application directly to the Supreme Court.  His Honour concluded:

Because of my view about the nature of the injury complained of by the applicant, however, his application is dismissed.[1]

This decision is available from Queensland Courts here.