Thinking | 14 December 2016
Connor v Queensland Rail
Under the Queensland Workers’ Compensation Rehabilitation Act 2015 (QLD) (Act), claimant workers must satisfy a procedural threshold of having each of their injuries accepted by the insurer at the start of the statutory benefits claim. This then limits the injuries which will be the subject of rehabilitation. The decision to accept or reject an injury also has a flow on effect to any common law claim. This case considered a strategy by a plaintiff law firm to seek to circumvent this process by including rejected injuries with accepted injuries in a common law claim.
The worker allegedly injured herself on 16 July 2013 when her foot became caught in the door of a train and she was dragged along the platform. The self insured employer accepted that the worker suffered soft tissue injuries to the cheek, buttock and leg from the incident but rejected a later attempt to add injuries to the knee, lumbar spine and secondary psychiatric injury. The worker sought a review of this rejection by the Workers’ Compensation Regulator but they upheld the original decision. The worker decided not to appeal the rejection to the Queensland Industrial Relations Commission.
However, the worker then delivered a Notice of Claim for common law damages which included both the accepted injuries and the rejected injuries to the knee, lumbar spine and secondary psychiatric. The usual practice for the insurer’s solicitors is to notify the worker’s solicitors that the injuries have already been rejected and would be ignored in the settlement negotiations. The worker’s solicitors decided to take the insurer on in this case and both sides sought declarations from the Court whether to allow or disallow the inclusion of the rejected injuries in the common law claim.
Section 237(1)(a)(ii) of the Act allows a worker to bring a common law claim where the worker has an accepted injury but also an injury not previously accepted by an insurer. The insurer must then make a determination under section 245 whether the newly added injury is an ‘injury’ for the purpose of the Act.
The worker, in this case, argued that she was entitled to bring the claim under that provision on the basis that she had some accepted injuries and wished to include additional injuries, namely the previously rejected injuries. Queensland Rail objected on the basis that it had already made a decision to reject the additional injuries during the statutory claim and should not be forced to make the same decision again under section 245.
The Court noted that the drafting of sections 237 and 245 were suboptimal. Justice Martin rejected the interpretation suggested by the worker that previously rejected injuries were not excluded from the subsection. That literal interpretation was contrary to common sense. It would require Queensland Rail to repeat a process, where there was no new information, and which could only lead to the same result, rejection of the injuries. The Court could see no rational benefit from having to repeat this process. On the contrary, it would result in an increased expense in making a fresh decision with possible reviews which would in turn increase administrative costs and/or premiums.
The Court, therefore, applied a common sense interpretation that section 245 should be read to only apply where the insurer had not already made a decision in respect of the added injury. Justice Martin would not allow the worker to have a ‘second bite of the cherry’.
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