We often dispel a common misconception that it is not possible to bring a common law claim for damages after the expiry of 3 years since the date of the event causing the injury, set out by s.11 of the Limitation of Actions Act 1974 (Qld) (‘LAA’).
When an injured person makes a statutory workers’ compensation claim, s.302 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’) provides that the ordinary 3-year time limitation period to bring a further common law claim for damages may be extended if, prior to the expiry of the 3-yr time limitation:
- you ask the workers’ compensation insurer (usually Workcover Queensland) to provide you with a Notice of Assessment (and it has not yet been given); or
- the insurer provides a notice of assessment within 6 months of the 3-yr time limitation expiry.
Either of the two above scenarios invokes Schedule 5 of the WCRA to change the expiry of the limitation date to bring a common law claim for damages to be 6 months from eventual receipt of the Notice of Assessment. This is why Roche Legal always recommends that injured claimants should never let Workcover close the claim without requesting a Notice of Assessment.
For further context, s.237 of the WCRA sets out that an injured claimant does not have an entitlement to bring a common law claim for damages unless they have first been issued with a Notice of Assessment upon the conclusion of their statutory claim. Section 179 of the WCRA requires the workplace insurer to organise an assessment if the request is made.
What is a DPI Assessment and Why Asking for One Matters
A DPI assessment refers to an evaluation of an injured worker’s degree of permanent impairment (DPI), conducted at the end of a statutory workers’ compensation claim. It is a critical statutory step under the WCRA.
When a worker’s injuries are stable and stationary, Workcover (or a self-insurer) arranges for the worker to be assessed by a trained doctor under the Guide to the Evaluation of Permanent Impairment (GEPI). The resulting assessment quantifies the worker’s DPI as a percentage.
There are two key consequences of asking for a DPI assessment:
- You become entitled to lump sum compensation.
If the DPI is above 0%, Workcover must issue a Notice of Assessment (NOA) and offer a lump sum. If the DPI is above 20%, the injured worker can accept the offer and still sue for common law damages. If the DPI is 20% or less, the worker must choose: either accept the lump sum or preserve the right to sue. - You can extend your right to sue beyond the ordinary 3-year limitation period.
Section 302 of the WCRA allows the 3-year limitation under the Limitation of Actions Act 1974 (Qld) to be extended if you ask for a NOA before the 3-year mark. The limitation period is then pushed back to 6 months after the eventual NOA is issued – regardless of when it arrives. But critically, you must have made the request before the 3-year date.
Failing to ask for the DPI assessment within 3 years of the injury could mean losing your right to sue altogether, even if Workcover later issues a Notice of Assessment. This was made clear in the case of Sankey v GPC Asia Pacific Pty Ltd [2022] QSC 213, where the Court held that the claimant had preserved her limitation period only because she had asked for the NOA before the 3 years expired – even though that request was made verbally and not recorded by Workcover.
For this reason, Roche Legal always recommends making the request in writing, so it can be easily proven later if necessary.
If your claim is approaching the 3-year mark and you haven’t yet been assessed for DPI, contact Roche Legal now to protect your rights.
The recent court decision of Sankey v GPC Asia Pacific Pty Ltd which emphasises a claimant’s need to specifically ask for the assessment to occur.
Sankey v GPC Asia Pacific Pty Ltd [2022] QSC 213
In Sankey v GPC Asia Pacific Pty Ltd, an injured claimant was pursuing a common law claim after the expiry of the 3-yr time limitation set out by the LAA, but in circumstances where Workcover had issued a Notice of Assessment after the 3-yr time limitation.
Workcover, acting through it’s solicitors, argued that the claimant was out of time pursuant to the 3-yr time limitation set out by the LAA because the claimant did not ask for the notice of assessment prior to the 3-yr expiry date. Whether the claimant actually ‘asked’ for the assessment prior to the 3-yr limitation date was therefore under scrutiny, where the claimant stated on oath that she did ask in time (over the phone). Workcover relied on a file note of the telephone call, which did not note any request made by the claimant. Whoever the judge believed on this point would effectively win the hearing.
Ultimately, the judge determined that the claim manager for Workcover was not a reliable note taker, and particularly in this instance, not as reliable as the claimant’s own testimony on the point. Accordingly, the court decided that the claimant most likely did ask for the Notice of Assessment which failed to be noted by the claim manager, and therefore the claim was not statute barred.
The implication of the court decision is that it is simply not enough to receive a Notice of Assessment after the expiry of the 3-yr time limitation to be entitled to bring a common law claim – it is necessary to have asked for the assessment prior to that 3-yr limitation date.
The case of Sankey could have easily been decided against her if the Workcover claims manager was a more reliable note taker, so it would be wise to make the request for the Notice of Assessment in writing for it to be easily proven, ensuring that the door is not closed on you to make your common law claim for damages.
If you have not yet been assessed by Workcover for a degree of permanent impairment (DPI) and require assistance to ensure your time limitation is protected, contact Roche Legal for assistance.