14 January 2015

DELAY IN SEEKING MEDICAL TREATMENT IN COMCARE CLAIMS

Many workers who are covered by the Comcare scheme will develop injuries over a period of time and it is not always possible to pinpoint the date of injury. For example, workers who gradually develop back pain or overuse injuries may find it hard to precisely identify when the injury occurred. Similarly in claims involving work related psychological injuries, it may be difficult to show when normal distress or upset because of a work incident, actually becomes a psychological injury.

The date of injury is important because under the Safety Rehabilitation and Compensation Act (SRCA) compensation can only be paid from the date the injury is deemed to have occurred. Section 7(4) of the SRCA provides that the injury occurs on the date the claimant first seeks medical treatment. It is therefore important that you attend the doctor as soon as possible if you are injured at work.

A recent Federal Court decision highlighted how important attending the doctor can be.  In a matter of Hutchinson v Comcare [2014] FCA 1300, the claimant had suffered a psychological injury at work and was claiming compensation from 5th March 2010 which was the date the worker asserted the incident at work which caused her injury occurred. However Ms Hutchinson did not see the doctor until 31 January 2011 and she appealed a decision by the Administrative Appeals Tribunal which found the date of injury was in fact the date that she first saw the doctor. The Federal Court dismissed the Appeal on the basis that there was no error of law in the Tribunal’s findings.  Appeals from the Administrative Appeals Tribunal must be on a question of law, not a question of fact. However, the judge determining the case stated, “even if her (the claimant’s) arguments are correct, they do not reveal an error of law on the part of the Tribunal”. 

This case highlights the importance of consulting a doctor as soon as possible after an injury occurs. It is also important to lodge an incident report as soon as possible after work injury. Whilst there is no time limit in the Act for notifying an employer of an injury, s 53 of the SRCA requires that notice of injury is provided “as soon as practicable” and it is not unusual for employers under the Comcare scheme to seek to deny claims on the basis of delay. Generally however the Tribunal will allow claims for compensation where there has been delay in providing notification if the worker can provide an explanation for the delay and if the employer cannot show that it has suffered prejudice because of the delay. (see Prater v Comcare [2014] AATA 7).

Law Institute Victoria Accredited Personal Injury Specialists

product   

Melbourne office (03) 9686 6610
247 Park Street, South Melbourne, Vic 3205
PO Box 42, South Melbourne,VIC 3205

Hobart office (03) 6270 2206
Address Level 3, 85 Macquarie Street
Hobart Tasmania 7000

©. All rights reserved.