What is in a date: does a worker claiming compensation need to prove a particular date of injury?

When making a claim for workers compensation in Western Australia, section 178(2)(c) of the Workers Compensation and Injury Management Act 1981 (the Act) stipulates those particular things that a valid notice of a claim requires. It says that the date and place at which an injury occurred (amongst other things) must be specified, noting that information is fairly essential in order for the merits of the claim to be considered and liability determined.

In the recent case of Gosper v Pilbara Iron Company (Services) Pty Ltd [2021] WADC 47 (Gosper), the District Court of Western Australia allowed an appeal to proceed on the basis that the provisions of the Act do not mandate that a worker must prove a specific date of injury in order to succeed in their claim.

Facts

Mr Gosper (the Appellant) was employed by the Pilbara Iron Company (Services) Pty Ltd (Pilbara) as a machine operator. He also undertook other work, which included manual handling.

The Appellant lodged a claim for workers compensation on Pilbara on 5 July 2019 for injuries to his left shoulder that he claimed to have sustained in the course of his employment on 6 June 2019.

The Appellant acknowledged that the specified date of injury that he provided (6 June 2019) was not the actual date that he suffered his shoulder injury. Rather, it reflected the date his injuries were confirmed by an MRI scan.

Decision of the Arbitration Service at WorkCover WA

Pilbara did not accept liability for the Appellant’s claim. Accoridnlgy, the Appellant applied to the WorkCover WA Arbitration Service for a determination of liability for his claim.

Following an Arbitration Hearing, Arbitrator Nunn issued a decision dated 30 July 2020, which focussed on the need for the Appellant to prove the date that his injuries occurred.

This was considered particularly necessary, as the medical evidence at Arbitration confirmed that the Appellant had a significant pre-existing left shoulder condition dating back to 2018, creating uncertainty as to the date he suffered the injuries claimed.

The Arbitrator ultimately found:

1. a factual inquiry into the relationship between the Appellant’s injuries and his employment could not begin without knowing the date of injury; and
2. in failing to provide evidence that might support findings regarding when he first suffered his injuries, the Appellant failed to prove it was more likely than not that he had suffered an injury during the course of his employment with Pilbara.

Without this starting point (the Appellant’s date of injury), the Arbitrator formed the view that he was unable to consider the evidence as to the claimed cause of the Appellant’s injury, which included details of the Appellant’s work duties.

Decision of the District Court

The Appellant appealed the Arbitrator’s decision to the District Court of WA, claiming that the Arbitrator erred in determining that he must first establish the date of his injury in order for a determination of liability to be made.

The question before the Court was whether it was necessary for a worker to prove the date upon which he suffered his injuries to successfully make a claim.

Lemonis DCJ held that the absence of proof of the date an injury occurred does not preclude the existence of a compensable “injury” within the definition of 5(1) of the Act, nor is it an essential requirement to satisfy section 178 of the Act. Rather, he said:

1. the purpose of section 178 of the Act is to ensure sufficient detail is given to an employer, within sufficient time, to enable the employer to assess the claim; and
2. the definition of “injury” pursuant to section 5(1) of the Act is directed to the cause of the injury, not the date it is suffered.

Lemonis DCJ, putting aside the date of injury, approached a determination of liability based on matters such as:

1. the nature of the work activities carried out by the Appellant;
2. the use of the injured body part in his personal life;
3. the extent to which the work undertaken with Pilbara involved the use of his left shoulder; and
4. the intensity and duration of such use,

and ultimately determined that Arbitrator Nunn’s decision be set aside, and ordered that the appeal be allowed for the matter to be heard by a different arbitrator.

Important Lesson

Ordinarily, it is usual practice for insurers and employers to rely on a worker’s claim for workers compensation for details of their injury to define each individual claim.

The date of injury provided by a worker provides insurers and employers with an idea as to the possible onset and cause of injury, by allowing them to investigate the specific timeline of events that occurred during that time, and ultimately considering whether it is more likely than not that the injury was sustained in the course of the worker’s employment.

The Gosper case serves as a reminder that the boundaries and formalities in workers compensation claims can be flexible, and should not be treated as absolute and prescriptive when considering the issue of claim liability.

Whilst the cases where injury dates are uncertain are fairly rare, the absence of an injury date now presents as more of an issue for the employer/insurer, as opposed to the worker.

A factual inquiry into a claim determining how an injury occurred should not be neglected in the absence of information regarding specifically when it occurred. Focus might be given to other circumstantial evidence (such as the nature of the workers’ role, and the level of its intensity), even if an injury chronology can not be established with any certainty.

This article was written by Matthew Thickett, Partner and Rozita Jahangirian, Solicitor.