Supreme Court of Queensland considers schizophrenia and workers' rights under the Workers' Compensation and Rehabilitation Act 2003

In Brief: Supreme Court of Queensland considers if schizophrenia, or chronic aggravation of pre-existing mild schizophrenia is compensable under the Workers' Compensation and Rehabilitation Act 2003 (WCRA) - Apelu v Lusty Tip Trailers Pty Ltd [2023] QSC 262.

Background 

The plaintiff was a boiler maker who worked for the respondent, a trailer manufacturer. On 18 January 2018, the applicant was struck in the head by a lifting lug which allegedly rendered him unconscious. The plaintiff also allegedly suffered a psychiatric condition following this incident. 

The workers' compensation insurer accepted liability for the plaintiff's head injury and a psychiatric condition, specifically post-traumatic stress disorder (PTSD). In Queensland, all psychiatric injuries must be assessed by the Medical Assessment Tribunal (MAT) before a notice of assessment is issued. The worker's compensation insurer referred the plaintiff to the MAT to determine if the plaintiff suffered from an incapacity for work, and a permanent impairment. 

On 11 July 2019, the MAT determined that the plaintiff had suffered PTSD as a result of the work incident. The MAT determined that the plaintiff had an incapacity for work, and that he had suffered a degree of permanent impairment. The MAT also determined, in the course of assessing an incapacity for work and degree of impairment, that the plaintiff's schizophrenia was not work related. 

The MAT's decision is final and can only be challenged by providing new evidence within 12 months, or by lodging an application for judicial review at the worker's cost. 

The plaintiff received two notices of assessment at the conclusion of his statutory claim, one for his head injury, and separate notice for his psychiatric condition, PTSD.

The plaintiff lodged a notice of claim for damages (NOC) with the workers' compensation insurer on 25 September 2019. The plaintiff claimed damages for injuries to his "mind" specifically defined as "PTSD, depression and anxiety", as well as an injury to his head and neck. The claim failed to resolve in the pre-proceedings stage, and the plaintiff commenced litigation. 

In the plaintiff's statement of claim, damages were claimed for a head injury and associated headaches, together with psychiatric conditions pleaded as: 

1. schizophrenia; or 

2. alternatively, a chronic aggravation of pre-existing mild schizophrenia; and 

3. PTSD.

The defendant admitted breach for the head injury, but they denied that the plaintiff had an entitlement to seek damages for schizophrenia, citing the MAT decision that the plaintiff's schizophrenia illness was not work-related. The defendant also pleaded that the plaintiff had not received a notice of assessment for schizophrenia or an aggravation of schizophrenia which therefore precluded his damages claim for this condition.

The medical evidence

The plaintiff was examined by numerous psychiatrists during the management of his statutory claim and common law claim. The two critical psychiatric experts considered by the court were Dr Hugh Daniel and Dr Eric De Leacy. Dr Daniel opined that the plaintiff's schizophrenia was not work related. 

Dr De Leacy opined that there was a temporal link between the plaintiff's head injury and the onset of schizophrenia. In response, Dr Daniel reported that "the concept of a minor head injury causing schizophrenia would be considered amongst mainstream psychiatrists to be doubtful and that generally PTSD would not be regarded as causing schizophrenia".

Importantly, the plaintiff's NOC was not amended to include schizophrenia as a work-related injury. 

After litigation had been commenced, the plaintiff obtained a report from Professor McFarlane. Professor McFarlane opined that there was a causal link between the trauma and the onset of the plaintiff's PTSD, major depressive disorder and schizophrenia. Professor McFarlane suggested that the plaintiff's schizophrenia was a consequence of the plaintiff's PTSD. 

Dr Daniel maintained his opinion that schizophrenia was not work-related in response to Professor McFarlane's opinion. 

The issues in dispute

The plaintiff filed an application with the Supreme Court in Queensland seeking a declaration that:

1. The plaintiff was entitled to pursue damages for schizophrenia;

2. Alternatively the plaintiff was entitled to pursue damages for a "secondary injury" - an aggravation of schizophrenia; and

3. The workers' compensation insurer is required to make a decision whether the schizophrenia condition is an "injury" pursuant to section 32 of the WCRA. 

The plaintiff's argument

The plaintiff argued that:

1. The MAT did not make a decision to reject the plaintiff's schizophrenia as an injury under the WCRA. In addition, the plaintiff argued that the workers' compensation insurer had paid compensation for the schizophrenia condition albeit under the diagnosis of PTSD and "other symptoms", and this constituted their acceptance of the schizophrenia condition as being work-related; 

2. Acceptance of a "psychiatric condition" by a workers' compensation insurer, must be interpreted to apply to all possible psychiatric conditions regardless of the different diagnostic terms that may be used to describe the conditions. In the circumstances, the plaintiff argued that based on the evidence of Dr De Leacy and Professor McFarlane, the plaintiff's schizophrenia was causally connected to the plaintiff's PTSD, therefore, both conditions were accepted; and

3. The notice of assessment issued by the workers' compensation insurer for PTSD should encompass all other conditions casually related to the incident regardless of the singular reference to PTSD. The plaintiff relied upon section 179(4) of the WCRA which states that "the degree of permanent impairment for the psychiatric or psychological injury must be assessed separately to decide the DPI for the injury" to support the argument that a singular reference is compulsory, but not determinative of all the injuries. 

The defendant's case

The defendant argued;

1. The workers' compensation insurer acted benevolently in paying benefits and funding treatment, and their actions did not give rise to an inference that they accepted liability for the schizophrenia condition; 

2. The MAT had differentiated PTSD and the schizophrenia condition. This decision was within their jurisdiction and function as a medical tribunal; and

3. Section 32C of the Acts Interpretations Act 1954 (QLD) (AIA) must be followed, which confirms that in an Act, words in the singular include the plural. Therefore, the term "injury" is used interchangeably for singular and multiple injuries and as the notice of assessment specified that the injury was PTSD, this was the only accepted injury. 

The defendant relied upon the decision of Costello v Queensland Rail [2014] QSC 83, which had already established that psychiatric injuries which vary in diagnosis must be treated as separate injuries - in Costello the relevant conditions were PTSD and major depressive disorder. 

Findings

The court determined that:

1. It could not be reasonably inferred from the payment of statutory benefits that the workers' compensation insurer had accepted that the plaintiff had suffered a work injury that included schizophrenia or non-work related psychosis. Therefore, the workers' compensation insurer did not, by its conduct, accept schizophrenia or its aggravation as an injury under section 32 of the WCRA; 

2. The MAT's function is not to decide between competing opinions, but to provide independent opinions on the medical question referred to it, by applying its own medical experience and expertise. In their decision, the MAT distinguished between PTSD and schizophrenia. They also clearly defined which condition was work-related (PTSD) and not work-related (schizophrenia). For these reasons, the second notice of assessment was confined to the PTSD condition only; and

3. There was no compelling evidence to accept the argument that the plaintiff had sustained schizophrenia as a consequence of his PTSD.

The court found that the plaintiff remained within time to seek a review of the insurer's decision not to accept or reject the schizophrenia condition, therefore the application was dismissed with costs to be resolved by way of mention. 

Despite dismissing the application, the court did not agree with the defendant's argument that a decision determining whether the plaintiff's schizophrenia was accepted or rejected, would be futile given the MAT's decision.  The court determined, that the MAT's decision that the plaintiff's schizophrenia was not work-related was a causal finding in their assessment of the plaintiff's capacity for work, and assessment of impairment. It was not the question it was specifically asked to consider, therefore, its finding on the issue cannot be viewed as a final decision. 

The court considered that to determine with any finality if the plaintiff's schizophrenia was an injury that is compensable under section 32 of the WCRA, a separate referral to the MAT would need to be made, asking them to consider this specific issue. In making this finding, the court considered the scope of section 515 of the WCRA (that their decision is final) to be narrowed by the context of the referral to the MAT under section 500 of the WCRA. 

Implications of the Decision 

The court did not consider the insurer's actions in paying compensation to infer acceptance of a non-work related condition.  Early intervention (either through treatment funding and compensation) in psychiatric injuries is vitally important to recovery and rehabilitation, and it is helpful that the court recognised that an insurer acting benevolently did not translate to open acceptance of work-related and non-work related conditions alike. 

It is also important to identify the basis for a referral to the MAT's, and to determine whether its decisions are consistent with the terms of the referral. Potentially favourable findings by the MAT, could be inconsequential if the context of those findings is not consistent with the issues they were asked to consider. 

Finally, this decision highlights the complex nature of psychiatric conditions both underlying and acute in nature, and the availability of evidence to connect or separate these conditions from work. It remains vitally important to ensure that psychiatric conditions are investigated thoroughly by appropriate experts, and that insurers clearly determine whether a condition is one for acceptance, based on the evidence. 

A copy of the decision can be found here.