Haddad v The GEO Group Australia Pty Ltd (NSWCA 2024)

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Key Takeaways

When an injury arises as a result of a disease of gradual process, s15 of the Workers Compensation Act 1987 (1987 Act) sets out how to determine the date of injury that is to be applied to the claim.

In this case, the Court of Appeal clarified that the determination of which limb in s15(1)(a) applies turns on whether or not the worker has an incapacity that has resulted from the injury, and this is a question of fact to be determined by the relevant evidence.

The Court of Appeal determined:

• if there has been a prior incapacity, then the deemed date for any subsequent claim (including weekly benefits, medical expenses or lump sum compensation) will be the date of that first incapacity.
• If there has been no prior incapacity, then the deemed date for any subsequent claim will be the date that claim is made.

Further, it was held that just because a claim for weekly compensation is not made, does not mean that the deemed date of injury might arise later for the purposes of, say, a lump sum claim.

Brief Facts

In January 2017, the worker sought medical treatment from a forensic psychologist, Dr Henderson. Dr Henderson’s brief first medical report dated 20 January 2017 stated that the worker was suffering from a psychological injury related to his employment.

On 19 January 2021, the worker’s solicitor made a claim for weekly payments of compensation and medical expenses from 20 January 2017 onwards. In response, the insurer disputed liability for the injury. In November 2021, the worker withdrew his claim for weekly compensation, which meant that his claim proceeded only on the basis of the claim for medical expenses.

As part of the claim, a determination needed to be made as to the date of injury to be applied. The worker contended that the date of injury should be 19 January 2021 (the date of claim). The Deputy President of the Personal Injury Commission instead determined that the deemed date of the worker’s injury was 20 January 2017, which was the date on which the worker first sought medical treatment from a psychologist in respect of his psychological injury (the date of incapacity).

Having withdrawn his claim for weekly benefits in November 2021, the worker contended that the Deputy President erred in confirming that the deemed date of injury was the earlier date of 20 January 2017 (the date of incapacity) and not 19 January 2021 (the date of claim).

On appeal, the principal issues were:

• whether the operation of the alternative deeming provisions in ss 15(1)(a)(i) and (ii) of the 1987 Act falls to be determined by reference to whether there is evidence that there is incapacity for work and an entitlement to claim compensation based on economic loss (in which case the injury will be deemed to have happened at the time of that incapacity); and
• whether the potential application of s15(1)(a)(i) can be removed by the worker abandoning his claim for weekly payments and pursuing a claim for compensation of a kind which does not depend upon incapacity, as is the case with a claim for medical treatment under s60 of the 1987 Act.

Judgment

Section 15(1) of the 1987 Act states:
 (1) If an injury is a disease which is of such a nature as to be contracted by a gradual process--
  (a) the injury shall, for the purposes of this Act, be deemed to have happened—
  (i) at the time of the worker’s death or incapacity, or
  (ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury.

The worker’s main argument was that because his claim for weekly compensation had been discontinued, he had no relevant “incapacity” within the meaning of s15(1)(a)(i). The deemed date of injury, the worker contended, was therefore the date of his claim for medical expenses (19 January 2021), rather than 20 January 2017, being the date he nominated in his original claim as the date from which he claimed to be entitled to receive weekly compensation payments.

The worker contended that the Deputy President erred in point of law in finding that the date of injury was determined by the date of the worker’s incapacity, in circumstances where the appellant no longer made a claim for weekly compensation and where the worker’s entitlement for payment of medical expenses did not depend upon there being any incapacity.

The Court of Appeal held that the question of whether or not the worker has an incapacity for the purposes of s15(1) is a question of fact to be determined by reference to all the relevant evidence and not how the worker ultimately formulates their claim for compensation.

The Court of Appeal held that merely because the worker’s claim was reformulated to seek a benefit which does not depend upon incapacity, does not mean that the previous evidence indicating that there may have been incapacity can be ignored. In this case, on 20 January 2017, the worker suffered a disease injury that caused both incapacity (in the sense of a reduction in earning capacity giving rise to an entitlement to claim weekly compensation) and also, at the same time, an entitlement to claim medical treatment expenses, that was the deemed date of injury relevant to both claims.

Applying Inghams Enterprises Pty Ltd v Thoroughgood (NSWCA 2014), the Court of Appeal held that the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury to be the time when the worker suffered incapacity.

Accordingly, in this case, that meant that since the worker suffered a disease injury that caused an entitlement to claim weekly compensation on 20 January 2017, that was the deemed date of injury relevant to the claim. That was not altered by the fact that the worker ultimately abandoned the claim for weekly compensation.

It was noted that it is only where there is no incapacity that the deemed date of injury is the date the claim is made. The Court explained that would be so, for instance, where a disease causes a need for treatment without any reduction in earning capacity.

Implications

The deemed date of injury for a disease injury is either the date of incapacity or the date of the claim. Those dates could be some distance apart. Further, the deemed date of injury for disease cases can have an impact on the lump sum compensation payable, given the indexation of lump sum compensation benefits in NSW.

This case confirms that if weekly compensation has already been paid in relation to an injury, the deemed date is the first date of incapacity. This is particularly important in lump sum claims which are made many years after the first date of incapacity.

Therefore, when determining the deemed date of injury for lump sum claims for a disease injury, the first step is to enquire as to whether there is an incapacity flowing from the injury for which the compensation is claimed. If the answer is in the affirmative, then the date of the incapacity is the deemed date of injury.