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All known injuries need to be the subject of assessment

Costello v Queensland Rail [2014] QSC 83

McMeekin J

16 May 2014

This case provides an analysis of the rights of an individual to damages separate and distinct from their rights under the Workers' Compensation and Rehabilitation Act 2003.

Background

The worker (the applicant) suffered serious injuries after a knife attack by a co-worker. As a result of the attack, the applicant alleged physical injuries and psychiatric injuries. Queensland Rail (the employer) accepted that the applicant was entitled to receive workers' compensation.

At the end of the statutory claim, two Notices of Assessment were issued. One Notice of Assessment was in relation to physical injuries. The other was in relation to psychiatric injuries. The applicant accepted lump sum offers from the employer for both the physical and psychiatric injuries.

The applicant is now contemplating seeking damages; however the employer argues that the applicant accepted lump sum amounts of compensation which preclude him from exercising his common law rights.

Liability

The applicant contended that the Notice of Assessment issued for the psychiatric injuries was invalid because it only invited the Medical Assessment Tribunal to undertake an assessment of a post-traumatic stress disorder; however a doctor had offered an additional diagnosis of a major depressive disorder as well as a post-traumatic stress disorder.

The applicant also contended that the Notice of Assessment issued for the physical injuries was invalid because all of the injuries that the applicant had suffered as a result of the event had not been assessed.

There were two issues:

  1. whether a Notice of Assessment of Work Related Impairment (WRI) for psychiatric injury is required to include all known psychiatric conditions arising from the event; and
  2. whether acceptance of an offer of a lump sum of compensation for permanent impairment made contrary to the requirements of the Act was binding upon the Applicant.

Judgement

Ultimately the judge ruled that the Notice of Assessment issued in relation to the psychiatric injuries was invalid. The Court was of the view that all known injuries need to be the subject of assessment for the purposes of the Act.

In this case, it was not sufficient for the Tribunal to have acknowledged the diagnosis of another condition. It was necessary for the insurer to have specifically referred all conditions for the purpose of assessment under the Act. Not to have done so rendered the Notice of Assessment invalid.

However the Court declared that that Notice of Assessment issued for the physical injuries was valid. The Court was of the view that the Applicant had review and appeal options in relation to that Notice of Assessment and those options were not exercised.

The Court ordered the parties to engage with each other with a view to developing appropriate Orders for the Court to consider.

It will be necessary for Queensland Rail to arrange a further 'assessment' of the applicant's psychiatric injuries (referral to the Tribunal) and to issue a Notice of Assessment in relation to the psychiatric injuries.