A judgement given by Judge Henry of the Cairns Supreme Court has given justice to an injured worker who would have been deprived of access to justice by the former Newman Government’s unfair workers’ compensation law changes.
The workers’ compensation changes implemented by the Newman Government prevented injured workers’ injured in the period 15 October 2013 to 30 January 2015 from pursuing negligence claims for injuries unless they had an injury assessed at greater than 5% degree of permanent impairment.
Mr Trumino sustained injuries in a slip and fall on frozen water in a freezer storage room at the Coles Supermarket at the Cairns Central Shopping Centre on 12 May 2014. He was employed by Coles as a filler.
As a result of the fall Mr Trumino lodged a workers’ compensation claim which was accepted on 29 May 2014.
He was diagnosed as having suffered an L5/S1 disc prolapse for which he underwent surgery on 14 August 2014. Following his surgery he developed urinary and erectile dysfunction.
He was assessed by a spinal surgeon as having suffered a 16% degree of permanent impairment (‘DPI’) with respect to his lower back injury.
He was assessed by an occupational physician as suffering a 15% DPI for bladder dysfunction and a further 5% DPI for erectile dysfunction. When combined with the lower back injury the total DPI for his physical injuries equated to 35%.
He was also assessed by a psychiatrist as suffering from an adjustment disorder secondary to his back injury in addition to his pre-existing psychiatric and psychological problems.
Mr Trumino was then assessed by the Medical Assessment Tribunal – Psychiatric who diagnosed him as suffering from an adjustment disorder with depressed mood in remission resulting in a 1% DPI.
Following the assessment of his injuries, Mr Trumino was issued with two notices of assessment by Coles, a single notice of assessment in respect of his physical injuries (totalling 35% DPI) and a second notice of assessment for his psychiatric injury (1% DPI).
Given that Mr Trumino’s injury occurred between 15 October 2013 and 30 January 2015 it was subject to the Newman era amendments to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the Act’).
Pursuant to section 237 of the Act Mr Trumino was only entitled to seek (common-law) damages for his injuries if they were assessed at more than 5% DPI, effectively 6% DPI or above with no ability to combine the notices of assessment for the physical and psychiatric injuries respectively to satisfy the 6% DPI threshold.
Mr Trumino argued that he was entitled to pursue a damages claim for both his physical injuries (totalling a combined 35% DPI) and also his psychiatric injuries (1% DPI).
Coles asserted that Mr Trumino was not entitled to pursue damages for his psychiatric injuries given they were assessed at not more than 5% DPI.
Justice Henry, in construing the words of section 237 found that they were ‘…concerned to limit which persons are entitled to seek damages…, not to limit the composition of the future claim.’ He further noted that ‘once past the s 237 threshold, the applicant joins the ranks of the persons s 237 allows to seek damages for injury sustained by a worker. Having allowed him to pass, s 237’s work is done. It does not control the future conduct or limits of the applicant’s claim.’
His honour also considered that section 185 of the Act does not contemplate the giving of more than one notice of assessment, i.e. it does not specify that separate notices should be issued for physical and psychiatric injuries respectively. He also found that irrespective, section 185 had no bearing on the determination of Mr Trumino’s entitlement to seek damages for both his physical and psychiatric injuries pursuant to section 237.
The decision in Trumino v Coles Group Ltd [2017[ QSC 211is a timely reminder that we are still within the (final) realms of the common-law access thresholds imposed by the Newman Government and the associated uncertainty those provisions created.
Author and Personal Injuries Lawyer, Trent Johnson, is a Director of Bennett & Philp Lawyers and a Queensland Law Society Accredited Specialist in Personal Injuries. If you have questions regarding a personal injury claim, please call on e of our experienced personal injury lawyers on +61 7 3001 2999.