For work injuries suffered from 15 October 2013 to 30 January 2015, a worker who wants to claim damages against their employer must achieve a degree of permanent impairment (DPI) of 6% or more.

For injuries suffered over a period of time, the date of the first consultation with a relevant health practitioner artificially determines the date of injury for the purpose of deciding which version of the Workers’ Compensation and Rehabilitation Act 2003 applies and might deem the injury to have occurred during the period the 6% DPI threshold applied.

In a recent case, Justice McMeekin was asked to determine whether Tania Guest (the Applicant) was entitled to claim damages for bilateral tennis elbow injuries for which she had a 2% DPI.

The Applicant attended her doctor on 19 September 2013 mentioning pain in her elbows. If that consultation amounted to a consultation pursuant to section 235A the Applicant would be entitled to claim damages for injury against her employer whereas if it were found the first consultation occurred after 15 October 2013 the 2% DPI would not be enough to entitle the Applicant to bring a damages claim.

Therefore, it was necessary to closely consider the nature of the Applicant’s attendance upon her doctor on 19 September 2013, and the notes recorded of that attendance.

Justice McMeekin acknowledged that the effect of section 235A was to artificially impose a date of injury for the purpose of determining which version of the Act applied.

Ultimately, Justice McMeekin also determined the interpretation sought by the party seeking to deprive the Applicant of her remedy was also artificial and a more natural interpretation of the words in sections relevant to the Applicant’s attendance would bear a more reasonable result.

In the end, Justice McMeekin found “it is entirely irrelevant what view the practitioner might have as to what the proper characterisation of the meeting might be. It is the objective assessment of what occurred that is relevant. And a misunderstanding about the nature of the condition is of no consequence… The legislation does not require that the medical practitioner consultant accurately diagnoses the problem, or that the patient understands the nature of injury sustained.”

In the end, there was sufficient evidence that the injury for which the Applicant consulted the doctor, prior to the introduction of the 6% threshold, was sufficient to deem her “over a period of time” injury as suffered on 19 September 2013, enabling her to claim damages for a DPI of only 2%.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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