Case Background: Head Injury, PTSD and Schizophrenia Claim

On 19 January 2018, the appellant was involved in a workplace incident, sustaining a head injury. Thereafter, the appellant applied for, and began receiving, workers’ compensation benefits. The appellant was later diagnosed with a work-related Post-Traumatic Stress Disorder (‘PTSD’), with WorkCover Queensland (‘WorkCover’), the statutory workers’ compensation insurer, accepting the appellant’s “secondary psych claim”.

Subsequently, the appellant was diagnosed with schizophrenia. It was said that this condition was not work-related and was not included on any work capacity certificates. WorkCover Queensland (‘WorkCover’), the statutory workers’ compensation insurer, did not at any time accept the appellant’s schizophrenia condition as a work-related ‘injury’ within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (‘the Act’).

The appellant’s psychiatric/psychological injury was assessed by the Medical Assessment Tribunal (MAT), which concluded that schizophrenia was not related to the workplace incident. Based on this, WorkCover issued a Notice of Assessment, specifying PTSD as the relevant injury.

The appellant then elected to pursue damages, giving a Notice of Claim for Damages to WorkCover. Therein, the appellant identified his alleged injuries of the mind to be PTSD, depression, and anxiety. He indicated that he had received a Notice of Assessment in respect of each of the injuries for which he was claiming.

During the pre-court proceedings, the appellant underwent further psychiatric assessment, with conflicting opinions received in respect of whether the onset of his schizophrenia was causally related to the subject workplace incident. The appellant did not amend his Notice of Claim for Damages to add schizophrenia as a work-related injury.

The appellant commenced proceedings in October 2020. A report was then obtained from Professor McFarlane, who opined that the appellant’s PTSD was a significant contributing factor to the development of schizophrenia, with the two conditions being “inextricably intertwined”.

The appellant amended his Statement of claim to include the schizophrenia as an accident-related injury. In its Defence, the respondent pleaded that the appellant was precluded from pursuing damages referable to the schizophrenia, as WorkCover had not decided that it was an ‘injury’ within the meaning of the Act, nor did it issue a Notice of Assessment in respect of that condition.

The appellant brought an application to strike out the relevant sections of the Defence.

Decision at First Instance

The primary judge found that whilst WorkCover had accepted the appellant’s “secondary psych claim”, this phrase could not properly be construed as extending to a psychological condition which had not been identified as being work-related at the time of acceptance. As a matter of fact, the primary judge concluded that the schizophrenia had not been subject of an assessment by the MAT for the purposes of s 237(1)(a)(i) of the Act. Further, the primary judge did not accept the appellant’s submission that s 179(4) of the Act operated so as to treat multiple psychological or psychiatric injuries as a single injury.

The primary judge therefore concluded that the appellant was not entitled to pursue damages referrable to the schizophrenia.

Position of Appellant

The appellant submitted that the Notice of Assessment for his PTSD included an assessment of his schizophrenia, or otherwise entitled him to pursue damages for that condition, thereby submitting that the primary judge erred in her interpretation of s 179 of the Act. In support, the appellant relied on the wording of s 179 of the Act, highlighting its singular phrasing for psychiatric/psychological injuries compared to the plural used for physical injuries.

The appellant further submitted that WorkCover ought not be permitted to limit his right to claim for damages by issuing a Notice of Assessment which only described a diagnosis of PTSD, and that it is ultimately a matter for a trial judge to determine the nature, extent, and cause of any injury.

In the alternative, the appellant submitted that the schizophrenia was a “secondary injury” to either his head injury or PTSD, and in reliance on Barraclough, argued that he therefore did not require a separate notice of assessment.

Decision

Crowley J, with Bond JA and Boddice JA concurring, found that s 32 of the Act lacked the textual indication that the phrase “a psychiatric or psychological disorder” should be given the limited scope that the appellant had submitted it should, being that this phrase referred to a single injury to the mind. In any event, his Honour opined that there was insufficient evidence to support the premise that the appellant’s PTSD and schizophrenia were “one and the same”.

His Honour further rejected the appellant’s argument in respect of s 179 of the Act, opining that this argument was unsupported by a reading of the full text of the provision, nor reading it within its context within the Act. His Honour referred to Costello in support of the conclusion that s 179 of the Act ought not be interpreted in the way that the appellant had contended it should do.

The Court agreed with the primary judge insofar as her being unsatisfied that the evidence supported a conclusion that the appellant’s schizophrenia could be regarded as a secondary consequence of the head injury or PTSD.

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