Opinion
Timeframe for applying for Workers' Comp: A Change in Interpretation
25th Sep 2015
Section 131 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) in Queensland provides that an application for statutory compensation is valid and enforceable only if the application is lodged by the injured party within six months after the entitlement to compensation arises.
To give s131 of the Act context one must also consider s141(1) of the Act, which provides that the entitlement to compensation for an injury arises on the day the worker is assessed by a doctor (or by a dentist for an oral injury or nurse practitioner for a minor injury).
Until recently, the leading authority dealing with the interpretation of the above sections (in their relevantly indistinguishable form in the now repealed Workers Compensation Act) was the decision of Hall P in WorkCover Qld v Downey [2001] QIC 76. In this case, the Court held that ‘assessed by a doctor’ meant ‘assessed by a doctor as resulting in total or partial incapacity for work’. Thus, the longstanding position up until recently has been that the six month period for an injured party to lodge a statutory claim commences when they undertake an assessment with a doctor or other nominated health professional from which they are deemed to be suffering from a total or partial incapacity for work due to their injury or injuries.
However, in the recent case of Blackwood v Toward [2015] ICQ 008 involving a claim for statutory compensation lodged by a jockey in 2013, shortly following a doctor reaching the conclusion that his ongoing issues associated with an injury from 2004 was caused from his employment, the Court held that the decision of Downey was erroneously determined. The Court concluded that to confine the words assessed by a doctor to an assessment relating only to total or partial incapacity for work as the Court had done in Downey would be to ignore the other possible, compensable sequelae of an injury.
The Court went on to reconsider the terminology ‘assessed by a doctor’ and ultimately concluded that in order for a doctor to ‘assess’ an injury as an ‘injury’ within the meaning of the Act, there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out the employment.
This decision has resulted in a significant alteration to the long held interpretation of s131 and s141 relating to the period within which a statutory WorkCover claim must be lodged in order to be valid.
The change in interpretation will create varying results for injured parties dependent on their individual circumstances surrounding the reporting of their injury to their doctor or other nominated health professional. However, it is hoped that this change in interpretation will lead to more injured parties being able to access the statutory WorkCover scheme, without having to be reliant on WorkCover or the appellant bodies exercising their discretion under s131(4) & (5) to accept such statutory applications outside of the relevant timeframe.
This change in interpretation should not be impacted upon by the recent passing of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015, which in itself represents a fundamental step in the restoration of rights for injured workers in Queensland.
Kaine Shanahan is a Senior Lawyer at Gouldson Legal, a Qld personal injury plaintiff litigation firm. Kaine has practised since 2007 in NSW, London and Qld, predominately in the area of personal injury law.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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