Major consequences follow court’s rebuff of WCQ’s stroke compensation claim denial

WorkCover is required to accept or reject an application for workers compensation within 20 business days of receiving a worker’s application.

That time constraint has led to a practice of approving some applications while awaiting further information and in the knowledge it can revisit the decision and terminate benefits if it turns out the application was not one for acceptance.

That practice is likely to be turned on its head by a recent Supreme Court decision.

The contest that came before Justice Peter Applegarth concerned an application by Chang Mo Yang who had suffered a stroke at work said to be as a result of workplace stress.

WCQ rejected the application but on review, the Workers Compensation Regulator – who preferred the expert opinion of a doctor who had examined the applicant to that one who had never laid eyes on him – the application was accepted.

WCQ then obtained the opinion of another medical practitioner who stated “I do not think the cerebral haemorrhage is secondary to hypertension caused by work stress”.

That led to a notification two days later by the claims officer that “in light of new medical information the decision has been made to cease your claim”. The new advice was that the stroke had been due to “pre-existing untreated hypertension”.

Chang promptly filed an application under the Judicial Review Act for a review of that decision, contending that WCQ had commissioned the third report to bulldoze the Regulator’s decision.

It could not in those circumstances – he argued – rely on WCRA s 168 which allows WorkCover to “review a person’s entitlement to compensation” if it considers their “entitlement to compensation may have changed.”

The section was not intended – he asserted – to allow the insurer to have a second crack at assembling evidence to defeat the claim ab initio.

WCQ essentially agreed that it had relied on the further report not so much for evidence that his status had changed but to support its view that the initial claim should never have been accepted in the first place.

It justified its position on a broad interpretation of s 168: that it had power to reassess as to whether an applicant ever met the statutory threshold at any time if there has been a “change in circumstances”.

His Honour noted the difficulty with that submission was that s 168 is not pre-conditioned upon a “change in circumstances”.

“Permitting an insurer to change its mind in the light of further information or further reflection” may Justice Applegarth observed, “introduce a lamentable measure of uncertainty and disturb the welfare of injured persons”.

After an intricate examination of the pros and cons of both sides of the argument, he concluded WCQ did not have power under s 168 to revisit earlier decisions on new evidence it receives.

Rather, the occasional acceptance of a claim that subsequently turned out to be one for rejection, “is a price that the legislature seemingly accepts in the interest of the efficient administration of the scheme for the greater good of the overwhelming majority of claimants”.

The respondent’s decision of June 2021 to terminate Chang’s entitlement to workers’ compensation was thus set aside.

Based on this decision, there will be many instances over many years of WCQ having wrongly relied upon s 168 to re-open an accepted claim terminate to workers’ compensation benefits.

The sting in the tail is the court’s clarification that s 168’s purpose is to allow WCQ to terminate benefits if it considers a worker’s entitlement has changed, regardless of whether its view is correct.

So in the case of a worker who has undergone remedial surgery, WCQ does not have to wait months for an assessment of the success or failure of the surgery but rather it can cease benefits immediately based on its expectation of a good result.

Yang v WorkCover Queensland [2021] QSC 274 Applegarth J, 22 October 2021

source https://cartercapner.com.au/blog/courts-rebuff-of-workcovers-2nd-crack-at-stroke-compensation-claim-denial-has-major-consequences/

Aspiring airline pilot seeks $7 mil in damages for child sexual assault

The victim of a sexual assault as a youth by the owner of a suburban theatre in 1985 has sought damages for the resulting psychiatric injury he claimed prevented him becoming an airline pilot and caused his life to “take a completely different turn”.

Then aged 16, Paul Miles – a pseudonym offered by the court – worked as a casual lighting operator at the Kogarah Mecca Cinema owned and operated by Philip Doyle.

Around the time of the August 1985 school holidays Miles – under the influence of alcohol supplied to him by Doyle – accepted an invitation from the cinema owner to stay overnight at his unit where it became clear he was expected to engage in sex acts.

Other than mentioning it to another boy, Miles told no one what had occurred and the incident was never spoken of between the two participants.

He later reported the incidents to police. Doyle was convicted of a series of sexual assaults  and was serving a sentence when the latter’s civil injury compensation claim came before Justice Richard Cavanagh in the NSW Supreme Court in July.

Notwithstanding his denial of liability in Miles’ lawsuit, the court was satisfied Doyle had behaved towards the youth in the way that had been recounted in evidence.

“The plaintiff was given alcohol by the defendant who then took advantage of him in his intoxicated state,” Justice Cavanagh concluded. “Whist he did not physically resist and temporarily froze before protesting, he did not consent to the defendant sexually touching him”.

His Honour then set about a “challenging” assessment of what damages Miles was entitled to be awarded.

“Challenging” because Miles – in his view and contrary to the conclusions of both forensic psychiatrists – had not developed his psychiatric illness until many years after the actual assault all the time keeping the incident hidden from the world around him.

Having completed Year 12 in 1986 in Lismore with good grades, he commenced officer training at Duntroon in Canberra.

He left there though in May 1987 and with him left his hopes of becoming a military pilot and then a highly paid airline pilot 20 or so years later in receipt of a military pension.

In fact he struggled to hold down a job and – although working most of the time – his work was short term, part-time or only for brief periods.

His only commitment to tertiary education was to complete a Bachelor of Media at Southern Cross University in 2009.

Remarkably though, over the 25 years since the assault, Miles occasional visits to doctors left no record of treatment for psychological issues.

All that changed once the Doyle criminal prosecution began in 2012. His engagement in that process brought on depression, anxiety and PTSD for which Miles received a disability support pension.

Justice Cavanagh rejected the opinions of psychiatrists Alex Apler and John Baker that the youth had suffered from a psychological illness since almost immediately after the assaults.

“Neither the contemporaneous records nor the plaintiff’s evidence support the assumptions and conclusions of fact which they have made”.

Rather his symptoms increased or accumulated over time – in His Honour’s view – possibly because for many years he declined treatment and declined antidepressant medication.

He was satisfied that Miles’ incapacity to work from about 2013 – in the absence of evidence from Doyle that it was the result of other factors – was a result of the psychiatric conditions caused by the assault.

He rejected the foregone airline career theory.

“In my view, the plaintiff has not established that the effect of the sexual assaults was that he was unable to stay in the military and become a commercial pilot”.

Justice Cavanagh thus declined Miles’ $7 mil ask. Rather he allowed a past loss of income at the rate of average weekly earnings, namely $1.1k/week for eight years in the sum of $457k.

For the future, he merely allowed a ‘buffer’ of $200k and assessed general damages – on a common law basis as is allowed in NSW for sexual assault – at a further $200k.

Aggravated damages – to account for the long-term burden of shame, embarrassment and indignation over and above the injury itself – were awarded at $35k making up a total damages award of $1.273 million.

Miles v Doyle (No 2) [2021] NSWSC 1312 Cavanagh J, 15 October 2021

source https://cartercapner.com.au/blog/court-awards-1-27-mil-for-aspiring-airline-pilot-child-sexual-assault-at-cinema/

Economic loss claim slaughtered: “capable and intelligent” manager likely only to earn $1.2k/week

A mother with an impressive employment history and a string of occupational qualifications has been ruled by the Supreme Court as likely only to have earned average wages but for the serious injuries she sustained in a motor accident at Mudgeeraba in February 2015.

Kate Sutton had completed year 12 and then worked for Cue Design progressing to store manager after 5 years. She then worked for Jeans West as a manager for three years and then in a car dealership as a finance manager for two years.

Her four year stint in real estate after gaining her real estate licence was paused to raise her two sons born in 2005 and 2010.

The injuries she sustained in the 2015 accident resulted from the impact of a rear end accident that was so heavy, both vehicles were written off.

Allianz – as insurer for at fault driver Lauren Hunter – admitted liability for the accident but disputed the extent of Kate’s damages for the resulting psychological injury when the matter came before Justice Paul Freeburn in September.

Psychiatrists Alfred Chung, Jon Chalk and Trevor Lotz each offered differing opinions. Dr Chalk concluded Kate could return to work for up to 20 hours per week. Dr Lotz – her treating psychiatrist who she saw monthly – considered her “a prisoner in own home” who he believed to be unemployable.

Observing that a treating psychiatrist has a conflict between “saying the right thing for the patient” and giving objective expert evidence, the judge gave greater weight to the views of Dr Chalk whose views were consistent with his own impression of Ms Sutton as “impressive”, “capable and intelligent”.

The court allowed an ISV of 13, yielding general damages of $21k.

Kate’s loss of income case relied on the formulation in a report from forensic accountant Michael Lee which was found to be based on unproved assumptions as to roles she would likely have taken on and the income she would have received, but for the accident.

“Mr Lee has no particular expertise in the labour market or in education, training and expertise for particular positions,” Justice Freeburn ruled. And even if he did, he did not analyse “Ms Suttton’s qualifications, expertise and experience” as against those required for the positions on which he had based his calculations.

With the report unable to be relied on, His Honour was invited to make a “global award”, an approach that he considered inconsistent with the Civil Liability Act s 55 obligation that requires a court to state the assumptions on which an award is based and the methodology used.

“It is doubtful that the court is entitled to adopt a global approach to economic loss,” he observed before embarking on a longhand assessment based on findings that Kate would have returned to work as an employee on a part-time basis earning the average after-tax weekly wage of $1.2k/week.

His Honour rejected the submission she would likely have been recruited as “business development manager” earning a far higher income because the qualifications for such a role – which she did not possess – included a degree in finance or law “with working knowledge of the stock market and takeover regulations”.

Past economic loss of $240/day for 2-3 days/week for 5 years was awarded at $212k.

Future loss of income was assessed at $91k over four years to 2025 by which time she was assumed – according to Dr Chalk’s evidence of likely achieving a “relative recovery” – to be able to resume full-time work. That sum was reduced by 15% for contingencies.

The gratuitous care claim was the next to come under the judge’s scrutiny.

Care was claimed for 442 hours at 17 hrs/week for the first 26 weeks, such information being derived from a “guesstimation” compiled by her husband two years after the accident.

The guesstimation indicated all of the household tasks he performed for the family of four with 25% of the total said to have been performed for the benefit of the plaintiff.

His Honour was not satisfied that such methodology was sufficiently precise. Neither did he consider a claim for 17 hours/week for “watching her medication” to be realistic or claimable as a “service” in the absence of any medical evidence that observation of that nature was required to be performed.

He declined to accept the invitation to adjust the figure claimed downwards, rather ruling that the legislative requirement in CLA s 59 not having been met, no award for gratuitous services – past or future – could be made.

The resulting damages award totalled $314k.

Sutton v Hunter [2021] QSC 249 Freeburn J, 7 October 2021

source https://cartercapner.com.au/blog/economic-loss-claim-slaughtered-capable-and-intelligent-manager-likely-only-to-earn-1-2k-week/