Barraclough v WorkCover Queensland  QDC 321
In Barraclough v WorkCover Queensland1 the worker made an application before the District Court at Mackay seeking a declaration that her Notice of Claim for Damages served pursuant to section 275 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) complied as well as a declaration that the worker was 'entitled' to pursue a claim at damages at common law with respect to injuries described as 'burns to the left hand and right hand, soft tissue injuries, complex regional pain syndrome – reflex sympathetic dystrophy of the right upper limb.
The application proceeded before His Honour Judge Durward.
The insurer issued a Notice of Assessment with respect to the worker's injuries that was confined to 'bilateral burns to the hands'.
The worker contended that she was entitled to pursue a claim for damages with respect to all of those injuries that arose from the event that was the subject of the worker's claim and was not to be restricted by a 'paperless administrative system' that recorded only certain injuries.2
The real issue was whether or not the worker's contention that she had suffered reflex sympathetic dystrophy (or the symptomatology described in that way) was a 'separate' injury for the purpose of the Act that had not been 'assessed' by the insurer and therefore the worker was not 'entitled' to pursue a claim with respect to that injury.
The worker contended that the reflex sympathetic dystrophy was a 'secondary consequence' or the 'sequelae' of the injuries that had been identified in the Notice of Assessment.
The insurer contended that the reflex sympathetic injury was not the same injury as the burns to the hands but a separate condition and was unaccepted by the insurer and 'causally independent' of the injuries that had been assessed for the purposes of the Act.
The Court undertook a detailed analysis of the decisions that have historically dealt with these issues.3
The Court considered that the insurer had applied a 'narrow and literal construction of the injuries as alleged by the worker'. The Court also acknowledged that there was some 'uncertainty' in relation to the symptoms and diagnosis of the reflex sympathetic dystrophy.
The Court was satisfied the reflex sympathetic dystrophy was not a condition that amounted to a 'separate injury' or, expressed in another way, a 'different and unassessed injury'.4
The Court was satisfied that on the medical evidence the reflex sympathetic dystrophy was casually connected to the injuries that had been assessed. The Court found that for want of a better description 'it was a condition that was a secondary consequence of ice of Assessment.'5 The court found that the overhelming thrust of the medical evidence' was supportive of a casual connection between reflex sympathetic dystrophy and the burns to the hands rather than there being two separate injuries.6
The Court found:
The case authorities also support the applicant's contention. The early descriptions focused on the observable and physical characteristics of the original injury. That is perfectly understandable. Serious injuries do not tend to resolve quickly and in many cases there is a progressive development of associated symptoms. Hence, with the passage of time, the physiological changes and the altered physical use of an injured or compromised limb, will present symptoms that generate a modified description that reflects the later symptom.
It is that progression of symptomatology that I consider has occurred here. It is an injury that has manifested itself in a progressive and developmental way and in a continuum. There is no indicia of one or more separate injuries. The case authority support my view of the circumstances of this case.7
Ultimately, the Court observed that it was potentially the insurers 'paperless administrative system' and the way in which data is captured by this system that potentially 'fuelled' the dispute that required the Court's determination.
Whilst acknowledging that there might be some administrative and economic advantages in the way in which injuries are recorded and the significance that is attached to them, the Court encouraged insurers to take into account a 'more expansive or conciliatory construction' of evidence in support of other injuries when it was appropriate to do so.
A copy of the Judgment can be found here.