Ley v Woolworths Limited [2013] QSC 59

In an Application before North J in the Supreme Court in Townsville, the worker sought a declaration that he was entitled to seek damages pursuant to s237(1)(a)(i) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Act) for a neck injury as set out in his Notice of Claim for Damages dated 12 December 2012.

The worker worked as a butcher at Woolworth’s store in Ayr from December 2008. He says on 4 January 2011, he was carrying out normal duties slicing meat using the steak knife in his right hand and holding the meat in his left when at about 7:30am he began to feel pins and needles down his left arm and into his left hand. At the end of his shift he attended a general practitioner. He then worked on 5 and 6 January 2011 and then went on holidays. The pins and needles persisted while he was on holidays but he does not recall suffering any pain. He returned to work on 31 January 2011 performing his usual duties. On that shift, in addition to the pins and needles, he began to experience pain in the back of his neck which extended down his left arm and behind the left shoulder blade, with swelling in those areas. He worked the following day on 1 February 2011 but finished his shift at 11:00am due to severe pain and he could feel a knot in his left shoulder.

In an affidavit, the worker stated he believed performing his employment duties over a period of time from the commencement of his employment on 17 December 2008 resulted in the onset and progression of a cervical spine condition. In addition to meat slicing, his duties included manoeuvring boxes of meat weighing up to 25 kg often at or above shoulder height and in cramped and cool conditions in a cold room.

In a statement, the worker stated his work hours were Monday 5:00am to 3:00pm, Tuesday 6:00am to 11:00am, Wednesday and Thursday and Friday 6:00am to 3:00pm. He would take one hour for lunch and one 20 minute break in the morning and two 10 minute breaks in the morning and afternoon.

On 16 February 2011, the worker signed an Application for Compensation. In response to the question, ‘What is the nature of your injury?’, the answer is recorded as ‘strain of cervical spine’. In response to the question, ‘What part of your body is injured?’. the answer recorded is ‘neck, left shoulder, arm, hand’. In response to the question, ‘When did your injury occur?’, the answer recorded is ‘Tuesday, approx 7:30 am 4/1/11’. In response to when the injury happened, there is a cross in the box, ‘during the course of your ordinary work hours’. The worker left the box which had words beside it, ‘over a period of time’ uncrossed. In response to the question, ‘if over a period of time when did you first notice symptoms?’ the answer recorded is ‘n/a’.

On 12 December 2011, the worker was examined by Dr Richard Gibberd, Orthopaedic Surgeon, for the purposes for an assessment of permanent impairment under the Act. When addressing ‘work related aspects’, Dr Gibberd said –

‘Mechanism of injury was very minor. He noted that the gradual onset of pins and needles in above and stopping fashion on 2 January 2011 while slicing meat. He said that nothing out of the ordinary occurred while he was doing this. Imaging confirms degeneration.

It would be my opinion that the act of slicing meat would not have caused any significant forces or pathology in the cervical spine.

Imaging confirms the degeneration and it would be my opinion he suffered a mild exacerbation of his pre-existing asymptomatic constitutional degenerative cervical condition. It is also my opinion this exacerbation has ceased.

Mr Ley gave me a history of repetitive lifting of cartons weighing up to 20kgs to 25kgs in awkward places in a cold room – it would be my opinion this has not had any significant contribution to the development of his constitutional degenerative cervical condition.’

On 16 December 2012, Woolworths issued a Notice of Assessment with a degree of permanent impairment of 0% and the injury was described as – ‘exacerbation of pre-existing degeneration of cervical spine’ and the date of injury was recorded as 4 January 2001.

On 12 December 2011, the worker’s solicitors served on Woolworths a Notice of Claim for Damages on an urgent basis. The circumstances of urgency were that by 12 December 2011, limitation issues might arise under the Limitations of Actions Act 1974 (Qld), if his injury was work related on the basis he commenced work on 12 December 2008.

Woolworths responded to the Notice of Claim agreeing there was an urgent need to start proceedings. In addressing entitlement and an unassessed injury, Woolworths stated the claimed injury was not one the worker had previously lodged an Application for Compensation for, that is, for an injury sustained over a period of time from 17 December 2008 to 2 February 2011. It was stated the nature of the allegations in the Notice of Claim were substantially different from an injury occurring on 4 January 2011 and therefore the alleged injury in the Notice of Claim would be treated differently for procedural purposes. Woolworths stated the worker’s entitlement to seek damages would arise only if it was decided the worker was a ‘worker’ when the injury was sustained and he had sustained an ‘injury’ and Woolworths gave him a Notice of Assessment for the injury.

The worker’s lawyers responded to the letter disagreeing that the over a period of time injury was unassessed and asserted the worker had received a Notice of Assessment in relation to the injury, dated 16 December 2011. In accordance with prior case law, it was asserted the worker had entitlement to seek common law damages. Therefore, the only decision Woolworths was required to make was with respect to the worker’s unassessed psychological injury only and not also the back condition.

North J referred to evidence that in March and April 2011 Woolworths had received expert orthopedic opinion that the worker’s continued symptoms were not attributable solely to the injury of 4 January 2011 when the worker was slicing meat but might be attributable to a degenerative cervical spine disease. He stated it was plain that before Woolworths issued the Notice of Assessment on 16 December 2011 it was understood that the worker’s contention was that his injury was attributable to occurrences happening before 4 January 2011, as per the Notice of Claim for Damages.

North J highlighted that prior case law established that the concept of ‘event’ was not part of the consideration of an assessment of an injury or impairment at the statutory level but was important in the context of a worker seeking common law damages in relation to the consideration of matters such as breach and causation of loss and damage.

North J stated the injury referred to in the Application for Compensation should be regarded as the same injury that is the subject of the Notice of Claim for Damages. He stated the worker’s neck injury had been assessed and therefore made the declaration sought.