The claimant was an employee of Queensland Rail and commenced a claim for damages under the Workers Compensation and Rehabilitation Act 2003. The claimant had a number of accepted and rejected injuries; an issue arose as to whether the claimant could seek damages for the rejected injuries.
- Whether a worker who has an accepted and assessed injury, can seek damages for a rejected injury and have the issues of 'worker' and 'injury' decided again.
The worker was injured on 16 May 2013 during the course of her employment with Queensland Rail (QR). Following the incident, the worker lodged an application for compensation in accordance with the Workers’ Compensation and Rehabilitation Act 2003 (the WCRA).
During the course of the statutory claim, QR (a self-insurer under the WCRA) accepted and rejected a number of injuries relating to the event in accordance with section 134 of the WCRA.
At the end of the statutory claim, the worker lodged a notice of claim for damages and sought damages for all of the injuries – including those that had been rejected by QR as part of the statutory claim.
The Decision at Trial
Section 237(1)(a) of the WCRA allows a worker to seek damages if they have received a notice of assessment for the injury. Alternatively, if they have not received a notice of assessment for the injury they must have received a notice of assessment for another injury resulting from the same event and elected to seek damages in respect of it. Section 245(3) of the WCRA goes on to provide that if the worker has not received a notice of assessment for the injury, in order to seek damages for it the insurer must decide that they were a ‘worker’ and sustained an ‘injury’ (as those terms are defined in the WCRA).
The worker argued that she was entitled to seek damages for all of the injuries because in accordance with section 237(1)(a)(ii) she had received a notice of assessment for an injury related to the event and had elected to seek damages for it. The self-insurer argued however that the worker could not seek damages for the rejected injuries because the requirements of section 245(3), in terms of deciding whether she was a ‘worker’ and had sustained an ‘injury’, had already been determined in the negative.
The court criticised aspects of the WCRA’s drafting, including section 245 and the use of the word ‘injury’ instead of ‘alleged injury’ throughout the act. In deciding the application, the court determined that the intended meaning of section 245 was to allow a worker with additional unaccepted injuries to seek damages conditional upon the threshold issues of ‘worker’ and ‘injury’ being determined in the affirmative; it was not the intended meaning of section 245 to allow a worker with rejected injuries to seek damages and have a second go at convincing the insurer that they were a ‘worker’ and sustained an ‘injury’. Accordingly, the court declared that the worker had no entitlement to seek damages in respect of the rejected injuries.
Implications For You
Although section 245(3) of the WCRA is now defunct, it lives on in section 239A(4). The key takeaway for insurers is that the court confirmed that a decision to a reject an injury at the statutory claim stage extinguishes the worker’s rights to seek damages for it.