Access to Damages – Application for Compensation out of time & not considered on its merits

A Top Class Turf Pty Ltd v Parfitt [2018] QCA 127

Gotterson, Morrison JJA, Brown J

On 2 June 2017, the District Court made orders granting leave to the respondent to proceed under s 298 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act), notwithstanding non-compliance with s 275 of the Act.  The applicant sought leave to appeal that decision.

The issues to be determined in deciding whether to grant leave were:

  • Whether the application for compensation made to WorkCover Queensland was rejected by WorkCover Queensland, not only on the basis that it was lodged outside of the six month period prescribed by s 131 of the Act, but whether it was also rejected after a consideration of its merits;
  • Whether the case of Jacobs v Woolworths Limited,[1](Jacobs) relied upon by the primary judge, was distinguishable from the present case or alternatively, whether Jacobs was wrongly decided;
  • Whether s 132A of the Act did not apply because the applicant had not received, a notice of assessment from WorkCover Queensland for the injury with the degree of permanent injury (“DPI”) for the assessed injury at more than five per cent prior to the expiration of the limitation period.

Application rejected on its merits?

As to whether the application was rejected on its merits, Brown J stated:

[25] While reference was made to the medical evidence in the reasons outlined in the letter of 16 October 2015, which the applicant submits shows that there was insufficient medical evidence to substantiate a claim that the respondent had suffered an injury as a result of his work or which arose out of his work, I consider the reasons support the respondent’s contention and show that the medical evidence was only looked at in order to determine whether the claim was out of time.

[28] The reasons in the letter of 16 October 2015 do not suggest that WorkCover Queensland was considering anything other than whether the time limit in s 131(1) of the Act had been complied with and whether there was any excuse under s 131(5) for the non-compliance with the time limit. The letter made reference to the fact that the respondent had lodged the claim ten months after he had sought treatment for the injury. It further stated that there was no reasonable cause for the failure to lodge the claim within time, given the fact that the respondent had lodged two previous claims with WorkCover Queensland and was therefore assumed to be aware of his obligations in lodging such a claim.

[29] The lack of reasonable cause was not, in the 16 October 2015 letter, linked to any assessment of the merits of the claim. The reasons for rejecting the application do not demonstrate that WorkCover rejected the application on its merits, as was contended for on behalf of the applicant. As such, I consider that there was no error by the primary judge in his finding that the claim was rejected on the basis that it was outside of the prescribed time limit under the Act.

Did Jacobs apply?

The respondent sought to rely upon Jacobs as authority for the proposition that an application lodged out of time is not an application for compensation for the purposes of the Act.  Finding that there were substantively similar circumstances in the present application to those in Jacobs, stated:

[32] In Jacobs, the applicant had lodged an application for compensation out of time under s 131(1) of the Act. The respondent had rejected the application on the basis it was out of time and would not waive the non-compliance. The applicant sought a declaration that she was entitled to seek damages under s 237 on the basis that she fell within the class of persons to whom s 237(1)(d) applied, namely that she was a “worker [who] has not lodged an application for compensation for the injury”. …

Referring to Jones J in Jacobs, her Honour continued:

[35] … His Honour considered that the preferable construction was that an application under s 237(1)(d) of the Act depended on the validity or efficacy of the application made under s 131 of the Act. That construction best achieved the purpose of s 237 of the Act.[12]

As to whether Jacobs was wrongly decided, Brown J stated:

[37] It was contended on behalf of the applicant that the decision in Jacobs was wrongly decided because the applicant could have relied on s 237(1)(c) of the Act and did not need to ground her entitlement to damages on s 237(1)(d) of the Act. While it appears that the argument raised on behalf of the applicant may well be correct, that was not the issue in dispute in Jacobs which had to be determined by the Court. As such, the contention that the decision as to the meaning of “application” was wrong on that basis, cannot be sustained.

[38] As there was no determination of the application on the basis of its merits by WorkCover Queensland, the cases of Kelly v WorkCover Queensland,[16] and Watkin v GRM International Pty Ltd,[17] relied upon by the applicant, have no application to the present case. In both of those cases, it was accepted that a valid application had been made and that the insurer had made a determination of the application for compensation based on its merits.

[43] I consider that the primary judge did not err in regarding the circumstances of the present case as being substantively similar to those considered in Jacobs. While s 237(1)(d) of the Act had been repealed from the Act considered by the primary judge, the reasoning in Jacobs was still applicable to the interpretation of s 132A of the Act. The wording of s 131 of the Act considered in Jacobs was not materially different from the wording of s 131 of the Act relevant to this application. The reference to an “application under s 132” in s 132A of the Act clearly refers to an application made pursuant to s 132 of the Act which is conditioned on an application for compensation having been made under s 131 of the Act. An “application” under s 132 is one which complies with the requirements under s 131. An application under s 131 is conditioned, inter alia, on the application being lodged within time unless the insurer waives noncompliance pursuant to s 131(5). The removal of s 237(1)(d) of the Act, which was the subject of the Jacobs decision, does not support any legislative intention that the reference to “application under s 132” in s 132A should be construed differently from Jacobs case, given the inter-relationship between it and s 131 and s 132 of the Act. In the absence of compliance with the time limit prescribed by s 131(1) of the Act and any waiver under s 131(5) of the Act, there was no valid and enforceable application for compensation under s 132 and his Honour did not err in finding that no application had been made for the purposes of s 132A(1) of the Act.

Did s 132A of the Act apply?

As to whether s 132A of the Act applied, her Honour found that:

[44] The applicant contends that s 132A does not purport to extend the categories of workers entitled to seek damages pursuant to s 237(1) to include those workers who have had their applications for statutory compensation rejected, whether on the basis of late lodgement or on the merits of the application. Given the reasoning above, I consider this is incorrect, as no application under s 132 has been made. Further, the respondent contends that that s 132A does not provide any entitlement to damages but rather is merely a mechanism whereby a person can apply for an assessment of the injury where they have not made an application for compensation under s 132 of the Act.[22] Thus, construing “application” in s 132A consistently with the decision in Jacobs does not, in the respondent’s submission, extend the categories of workers to which s 237(1) applies. That, in my view, is correct.

Her Honour made clear that s 237(1)(a) of the Act (at the time) required an assessment of more than five percent to access common law damages; but that neither ss 132 or 237(1)(a) of the Act required an assessment prior to making an application for compensation. Lastly, the assessment was not required before the expiration of the limitation period [45] – [47].

In conclusion, her Honour found that there was no error by the primary judge. On the basis that no application for compensation had been made the respondent/worker was not barred from making a claim for common law damages under s 237 of the Act or an application for a notice of assessment as part of the claim for damages.

Her Honour refused the application for leave to appeal, Gotterson and Morrison JJA agreed with the reasons and the order proposed by her Honour.

David Cormack – Brisbane Barrister & Mediator 

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