Timeframe for applying for WorkCover Statutory Compensation: A Change in Interpretation

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 section 131 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authority dealing with the interpretation of the above sections (in their relevantly indistinguishable form in the now repealed Workers Compensation Act) was the decision of Hall P in WorkCover Qld v Downey (2001) QIC 76.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 long-standing 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 00 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 constituted by Martin J 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.

If you have been injured in the course of your employment, we would advise that you immediately seek legal advice to determine how this change in interpretation will impact on your individual circumstances.

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