This is a decision will be of interest to personal injury practitioners. The respondent employee had made an application for statutory workers’ compensation which the court found had been rejected by WorkCover Queensland because it was out of time and not on the merits. Justice Brown, in her lead judgment, agreed with the primary judge that a failure to lodge an application for compensation within time meant that no application for compensation had been made for the purposes of ss 131 and 132 Workers’ Compensation and Rehabilitation Act 2003 (the Act). As no application for compensation had been made the employee was not precluded from bringing a claim for damages under s 237 of the Act. Accordingly, her Honour found there was no impediment to the respondent being granted conditional leave to make an application for a notice of assessment for the purposes of bringing a claim for damages under s 237 of the Act.
Gotterson and Morrison JJA and Brown J
7 November 2017
At first instance the primary judge had granted conditional leave, noting that the respondent’s claim had been rejected by WorkCover on the basis of its being out of time. . In granting leave his Honour relied upon Jacobs v Woolworths Limited  2 Qd R 400 wherein it was held that an application lodged out of time would not be regarded as an application within the meaning of s 132 of the act, thereby permitting a worker to seek damages under s 237 of the Act.
The applicant argued that the respondent was precluded from seeking damages under s 237, on the basis that the application had been rejected on its merits – and that in that regard the primary judge had erred in determining that the application had only been rejected since it was made outside the six-month period prescribed by the Act. After considering WorkCover’s decision the court found that the reasons did not contain any suggestion that WorkCover Queensland had considered anything apart from compliance with s 131(2) and whether there was an excuse under s 131(5) for non-compliance. –. The court upheld the primary judge’s conclusion that the claim was indeed rejected since it was outside of the prescribed time.
Did Jacobs apply?
The court further found that the primary judge had not made an error in relying upon Jacobs v Woolworths Ltd  2 Qd R 400, and in forming the view that the circumstances were substantively analogous to those considered in that case. It also dismissed WorkCover Queensland’s suggestion that it had been wrongly decided.
In Jacobs, the court emphasised that an application under s 237 was dependent upon the validity of an application made under s 131. . The applicant in that matter had made an application out of time and consequently sought a declaration that she was entitled to seek damages under s 237 on the basis that she was a “worker [who] ha[d] not lodged an application for compensation for the injury” pursuant to s 237(1)(d).
Notwithstanding the repeal of that provision, the respondent argued that that did not diminish the application of Jacobs as authority for the proposition that an application lodged out of time is distinct from an application for compensation for the purposes of the Act.
The court observed that:
“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 non-compliance 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.” .
The applicant sought to argue that s 132A does not purport to extend the categories of workers entitled to seek damages pursuant to s 237(1) to comprise those workers who have had applications for compensation rejected, whether due to late lodgment or on the merits. . The court disagreed, preferring the respondent’s argument that when “application” in s 132A is read consistently with the reasoning in Jacobs, the categories of workers pursuant to s 237(1) is not widened. In disposing of the matter, (and refusing the application for leave to appeal), the court clarified as follows:
- section 237(1)(a) only has application where a claimant obtains an assessment of an injury at more than five percent;
- there is no requirement in ss 132 or 237(1)(a) of the Act to apply for assessment before making an application for compensation; and
- there is no scope for reading additional words into s 237(1)(a) so as to require that a notice of assessment is needed prior to the expiry of the limitation period. –.
A de Jersey