Compensation for Injured Worker: Jockey Successful in Claim 9 Years post-injury

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Simon Blackwood (Workers’ Compensation Regulator) v Ian Andrew Toward

A. Facts of the Injury Case

Mr Toward was a jockey who was injured on 21 August 2004. On that date, the horse he was riding flipped over the barrier prior to the start of a race. Mr Toward was pinned and subsequently injured.

Mr Toward was described by the Court to have a quality that was “completely admirable – stoicism in the face of pain”.

Notwithstanding the injury, Mr Toward rode in other races that day, and continued to ride in the week after.

However, Mr Toward’s pain continued, and on 1 February 2005, Mr Toward was examined by a general practitioner (Mr Simonds), who referred Mr Toward to an orthopaedic surgeon (Mr Pozzi).

However, no application for compensation was commenced until July 2013, when Mr Toward again consulted Mr Simonds and Mr Pozzi. In this regard:

  1. A Workers’ Compensation Medical Certificate was issued by Dr Simonds on 16 July 2013 with the diagnosis of severe arthritis in the left hip. The date of injury was noted as 21 August 2004, and the cause of injury as “Horse bucking and falling within a stall pinning Ian under. Numerous other injuries as jockey.”
  2. On 17 July 2013 Mr Toward commenced an application for compensation with WorkCover Queensland, with the injury claimed as osteoarthritis of the left hip.

At first instance, that application was rejected on the basis that there was insufficient medical evidence to support the claim. On review the decision was upheld.

Subsequently the matter was appealed to the Queensland Industrial Relations Commission, where the Worker’s Compensation Regulator (for the first time) raised the issue of whether the application had been made within the relevant time limit of 6 months under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”).

The Commission found that the application had been made in the time prescribed.

The matter was subsequently heard before the Industrial Court of Queensland.

B. Issues in Dispute

There were two main issues considered by the Court, which were:

  1. For the purposes of the Act’s time limit, how should the expression ‘assessed by a doctor’ be interpreted?
  2. Whether Mr Toward was assessed as having an injury? And if so, when?

‘Injury Assessed by a doctor’

Relevant to Mr Toward’s circumstances is section 131 of the Act, which states that:

“An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises”.

An entitlement to compensation is defined in section 141 of the Act, which states that:

“(1) The entitlement to compensation for an injury arises on the day the worker is assessed by—

(a) a doctor; or

(b) if the injury is a minor injury—a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or

(c) if the injury is an oral injury and the worker attends a dentist—the dentist.

(2) However, any entitlement to weekly payment of compensation starts on—

(a) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury—the day after the worker stops work because of the injury; or

(b) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury— the day the doctor, nurse practitioner or dentist assesses the injury.”

In considering whether Mr Toward’s application was made within the relevant time limit, the Court considered the previous decision of WorkCover Queensland v Downey (decided in the Queensland Industrial Relations Commission), Hall P said (of the predecessor of section 141 of the Act) that:

“…it seems to me that the expression ‘assessed by a doctor’… must be taken to mean ‘assessed by a doctor as resulting in total or partial incapacity for work’.”

The Court took the view that Hall P erred in his interpretation of the expression ‘assessed by a doctor’ of section 141(1) of the Act, as Hall P’s interpretation would exclude other types of compensable injury (for example, death).

The Court held that ‘assessed by a doctor’ pursuant to section 141(1) of the Act should be interpreted as assessed by a doctor as suffering a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to [an injury that may be compensated under the Act]”.

Was Mr Toward was assessed as having an injury? And if so, when?

Fortunately for Mr Toward, the evidence presented showed that there was no specific connection made by the medical practitioners between the “horse flipping over and the condition of Mr Toward at the time he was first seen” in 2005.

In this regard, the Court held that there must be some evaluation, conclusion or expression of opinion that “the injury arose out of the employment.”

The Court took the view that Mr Toward’s doctors only directed themselves to whether the injury arose out of the employment in 2013.

The evidence revealed that prior to 2013, each of the doctors were concerned with the treatment of Mr Toward, but had not directed their minds to the question of which physical injury arose out of employment.

Therefore, the Court held that Mr Toward’s claim was made within the relevant time limit under the Act.

C. Our Comments on the Decision

In our view, this decision is significant, as it provide new guidance on the definition of ‘assessed by a doctor’.

This decision may potentially give employees an opportunity to commence a claim pursuant to the Act in relation to an old injury, if no medical advice has previously been provided which considered whether the old injury arose out of employment.

This decision may “extend the time” for an employee’s statutory benefits claim.

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