Can a worker still claim compensation several years after an injury?

The Court of Appeal of New South Wales' Supreme Court recently dealt with a case involving a worker's claim for compensation for a psychological injury he allegedly sustained while working as an immigration detention officer at Villawood Detention Centre from 1998 to 2001.

The worker had made a claim for weekly compensation and medical treatment expenses in January 2021, but the claim was rejected by the employer's insurer on the basis that it was time-barred under the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

The case raised complex questions about the interpretation of the statutory provisions governing the deemed date of injury for a disease of gradual process, such as a psychological injury.

The outcome would determine whether the worker's claim was made within the required time limit and, consequently, whether he would be entitled to compensation for his alleged work-related injury.

Background and context

The worker was employed by the employer as an immigration detention officer at Villawood Detention Centre from 3 August 1998 to 31 January 2001.

During this time, he witnessed some confronting events that would later be identified as the cause of his psychological injuries. After leaving his employment at the detention centre, the worker held various other jobs until the end of 2016, when he ceased working altogether.

In January 2017, the worker sought medical treatment from a forensic psychologist, who diagnosed him with severe post-traumatic stress disorder (PTSD) and symptoms consistent with major depressive disorder. The psychologist attributed these psychological injuries to the worker's experiences during his employment at Villawood Detention Centre.

Prior to making a claim under the New South Wales workers compensation legislation, the worker had submitted two separate claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in June 2017.

One claim was made against the Department of Immigration and Border Protection, which the worker initially believed to be his employer at the detention centre. The other claim was made against the Australian Securities and Investments Commission (ASIC), where the worker was employed subsequent to his time at the detention centre. Both claims were unsuccessful.

The worker's claim and insurer's response

On 19 January 2021, nearly four years after the worker had first sought medical treatment for his psychological injuries, his solicitor lodged a claim under the Workers Compensation Act 1987 (NSW).

The claim sought weekly payments of compensation from 20 January 2017 onwards and medical treatment expenses. However, in November 2021, the worker withdrew his claim for weekly benefits, leaving only his claim for medical treatment expenses.

The employer's insurer disputed liability for the claim on several grounds, including that the worker had failed to make a timely claim for compensation as required by section 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

The insurer argued that the deemed date of injury was 20 January 2017, based on the date of incapacity, and therefore the claim made on 19 January 2021 was outside the six-month time limit.

The parties' arguments

The worker contended that because he had withdrawn his claim for weekly compensation, which was based on incapacity, the deemed date of injury should be the date of his claim for medical treatment expenses (19 January 2021) rather than the date of incapacity (20 January 2017).

He relied on the reasoning of Handley AJA in SAS Trustee Corporation v O'Keefe [2011] NSWCA 326 to support his position.

The employer, on the other hand, maintained that the deemed date of injury was determined by the date of incapacity, irrespective of whether the worker had withdrawn his claim for weekly compensation.

The court's decision

The Court of Appeal unanimously dismissed the worker's appeal, agreeing with the Deputy President of the Personal Injury Commission that the worker's deemed date of injury was 20 January 2017, based on the date of incapacity.

The Court emphasised that the determination of which limb in section 15(1)(a) of the Workers Compensation Act 1987 (NSW) applies depends on whether or not the worker has an incapacity that has resulted from the injury, which is a question of fact to be determined by the relevant evidence.

"Nothing in the text of s 15(1) or, indeed, elsewhere in either Act, suggests that the deeming provision operates simply by reference to how the worker's claim for compensation is formulated."

The Court held that since the worker had suffered an injury that caused an incapacity, giving rise to both a claim (or entitlement to claim) for weekly compensation and a claim for treatment expenses, the date of that incapacity was the worker's deemed date of injury for both claims.

“It is only if an entitlement to compensation is unrelated to any incapacity, that the deemed date of injury is the date of the claim.”

Consequently, the Court found that the worker's claim for medical treatment expenses was time-barred under section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), as it was made more than six months after the deemed date of injury.

"Since, 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."

The Court's decision clarifies the application of the deeming provisions in sections 15 and 16 of the Workers Compensation Act 1987 (NSW) and highlights the importance of considering the factual circumstances of each case when determining the deemed date of injury for a disease of gradual process.