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High-voltage lineman injured

Keywords

Workers’ compensation – interpretation –whether the notice of non-compliance issued by the respondent, pursuant to s 278(2), was invalid because it failed to allow for non-compliance to be remedied – whether it was open to the primary judge to conclude that the written notice, given to the appellant by the respondent, was not invalid for non-compliance with s 278(2)(d)

Facts

The appellant (plaintiff) was injured on 25 February 2019.  He was employed by Energex Limited as a high-voltage lineman and suffered injuries to his spine and shoulder, as well as a psychiatric injury and traumatic brain injury after an object fell from above striking him on the head and shoulder while undertaking his duties.

He provided a Notice of Claim to the respondent (WorkCover Queensland) on 29 December 2022, and on 31 December 2022 received written notice from the respondent that the Notice of Claim was not compliant, pursuant to Section 278 of the Workers’ Compensation and Rehabilitation Act (2003) because the claimant had failed to provide earnings details, had not disclosed income, tax returns or his earnings or receipt of benefits between 1 July 2022 to date.

At the same time, the notice from the respondent required the applicant (plaintiff) to address the non-compliance by way of providing documents set out in the Notice and also a statutory declaration addressing the earnings in question 52 of the Notice of Claim for Damages.

The court noted that before starting proceedings, the appellant (plaintiff) must give notice pursuant to Section 275 within a specified timeframe. In the primary decision, the judge had identified the critical issue for consideration in this particular application, and that was the proper construction of Section 278(2)(d), which says, “the insurer must, within 10 business days after receiving the notice, give the claimant written notice –

(d) If the insurer does not waive compliance with the requirements – allowing the claimant a reasonable period of at least 10 business days either to satisfy the insurer that the claimant has complied with the requirements or to take reasonable action to remedy the noncompliance”.

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The primary judge held that section did not prescribe “any invitation, offer or options for a response to the insurer’s preliminary view that must be stated in the written notice such that the failure to refer to both parts of that composite phrase in section 278(2)(d) renders the notice invalid or non-compliant”.

The trial judge found that the subsection (d) did not use the word “stating”, it used the word “allowing”.

Decision

  1. Bond Boddice, JJA and Burns, J, delivered 22 March 2024. The appeal is dismissed.
  2. The appellant to pay the respondents costs of the appeal, to be assessed on a standard basis.

Ratio

The Court of Appeal held that any consideration of section 278 in the context of the purpose of the WCRA supported a conclusion that the primary judge was correct. The primary judge’s interpretation of the section was consistent with the plain and ordinary meaning of the words used and only required the insurer to give the claimant written notice stating whether the insurer is satisfied that notice was complying, and if not, identify the non-compliance and stating whether or not the insurer waives compliance with those requirements.

Even if the insurer doesn’t waive compliance, there is still an allowance for the claimant for a reasonable period of at least 10 days to satisfy the insurer that the claimant has complied or to take reasonable action to remedy any non-compliance. 

In any event, it is open for the applicant (plaintiff) to apply to the court to seek a declaration from the court about any non-compliance, or even in some cases to seek leave to commence proceedings notwithstanding non-compliance with the requirements of the WCRA. 

The court reiterated that there was nothing in section 278(2) “requires a specific statement that the claimant is allowed the specific period” either to satisfy the insurer that the claimant has complied with the requirements, or to take reasonable action to remedy the non-compliance, it was open to the primary judge to conclude the written notice, given to the appellant, was not invalid for non-compliance with section 278(2)(d) of the WCRA.  Accordingly, there was no error of law on the part of the primary judge.

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