The Industrial Court of Queensland finds that Workers are not entitled to a "second bite of the cherry".

On 24 November 2016, in Connor v Queensland Rail Ltd[1], President Martin of the Industrial Court of Queensland held that a worker cannot seek damages for injuries rejected as part of the statutory claim for workers compensation.

Section 237 of the Workers Compensation and Rehabilitation Act 2003 (the WCRA) provides:

237 General limitation on persons entitled to seek damages

(1) The following are the only persons entitled to seek damages for an injury sustained by a worker—

(a) the worker, if the worker—

  1. has received a notice of assessment from the insurer for the injury; or
  2. has not received a notice of assessment for the injury, but—

(A) has received a notice of assessment for any injury resulting from the same event (the “assessed injury”);

and

(B) for the assessed injury, the worker has a WRI of 20% or more or, under section 239,109 the worker has elected to seek damages; or

(b) the worker, if the worker’s application for compensation was allowed and the injury has not been assessed for permanent impairment; or

(c) the worker, if—

  1. the worker has lodged an application, for compensation for the injury, that is or has been the subject of a review or appeal under chapter 13; and
  2. the application has not been decided in or following the review or appeal; or

(d) the worker, if the worker has not lodged an application for compensation for the injury; or

(e) a dependant of the deceased worker, if the injury results in the worker’s death.

(2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.

(3) If a worker—

(a) is required under section 239 to make an election to seek damages for an injury; and

(b) has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3110 for the injury;

the worker is not entitled under subsection (1)(a)(ii) to seek damages.

(4) However, subsection (3) does not prevent a worker from seeking damages under section 266.

(5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.

What was section 245 of the WCRA - now section 239A - previously provided:

245 Claimant with more than 1 injury from an event

(1) The claimant need not have, and the insurer can not decide to have, the injury assessed under chapter 3, part 10 to decide if the injury has resulted in a degree of permanent impairment.

(2) The insurer can not decide that the claimant’s notice of claim does not comply with section 275 only because the claimant has not received a notice of assessment for the injury.

(3) However, the claimant may seek damages for the injury only if the insurer decides that the claimant—

  1. was a worker when the injury was sustained; and

(b) has sustained an injury.

(4) The insurer must make a decision for the purpose of subsection (3) within 3 months after—

  1. the claimant gives, or is taken to have given, a complying notice of claim; or
  2. the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275, with or without conditions; or

(c) a court makes a declaration under section 297.

(5) If the insurer is WorkCover, WorkCover must notify the claimant and the claimant’s employer of a decision it makes for the purpose of subsection (3).

(6) If the insurer decides that the claimant—

  1. was not a worker when the injury was sustained; or

(b) has not sustained an injury;

the notification must include written reasons for the decision.

(7) If the insurer does not make a decision for the purpose of subsection (3) within the time mentioned in subsection (4), the claimant may have the failure to make a decision reviewed under chapter 13.

(8) A person aggrieved by a decision made by the insurer for the purpose of subsection (3) may have the decision reviewed under chapter 13.

In order that section 237 (a) (ii) and section 245 of the WCRA be read together in a way which is "rational and consistent with both the context of those provisions and the objects of the WCRA be considered necessary to consider whether section 245 of the WCRA, Martin P found that section 245 of the WCRA should be read as if it "contained some words which confined the operation of section 245 (3)."

Martin P found that section 245 of the WCRA contained a drafting error. Martin P relied on authority that allowed for "obvious drafting errors" to be corrected (for example Inco Europe Pty Ltd v First Choice Distribution[2]. Martin P held the section did not make sense. Martin P held section 245 was inconsistent with the objects of the WCRA because it required an insurer to engage in a series of steps which had already been undertaken. The proper construction of the Act would be to read section 245 (3) of the WCRA as if, after the work "However", it contained words to the effect "where the insurer has not already decided the matters in this sub section". Martin P held that this reading would allow for the situation where an application has been made but not decided - but it does not allow an unsuccessful applicant to have a "second bite of the cherry".

The decision is attached.