Determining the deemed date of injury where a claim is made in respect of medical expenses only having regard to ss15 & 16 of the Workers Compensation Act 1987.


The worker was employed by GEO as an Immigration Detention Officer at Villawood Detention Centre from 3 August 1998 to 31 January 2001. Subsequently, he worked for other employers until he ceased work in late 2016. In January 2017, he sought treatment from a forensic psychologist, Dr Henderson, who diagnosed severe PTSD and a major depressive disorder attributable to employment at Villawood Detention Centre.

On 19 January 2021 the worker belatedly made a claim for payment of weekly compensation and medical treatment expenses from 20 January 2017 under the Workers Compensation Act 1987 (the 1987 Act) having unsuccessfully pursued claims for statutory compensation under the Comcare scheme between 2017 and 2019 in which he maintained his psychiatric diseases were attributable to work with a different (later) employer.

GEO denied the claim under the 1987 Act for reasons including that the claim was statute barred by s261(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) because it was not made within 6 months of the deemed date of injury (the date of first incapacity) determined to be 20 January 2017, being the date the worker was first diagnosed as incapacitated and treated by Dr Henderson.

The worker filed an Application to Resolve a Dispute in the Personal Injury Commission (the Commission) which initially sought both weekly benefits of statutory compensation and medical treatment expenses but ultimately proceeded only seeking medical treatment expenses under s60 of the 1987 Act. He asserted that the relevant date to consider the claim was the date on which he sought compensation under the 1987 Act in January 2021 rather than the date he consulted Dr Henderson in January 2017.

The dispute was limited to determination of whether the worker’s claim was barred by the time limitations prescribed in ss254 and/or 261 of the 1998 Act. This required a determination of whether there was a time bar applicable to a medical treatment expenses claim and if so the deemed date of injury for the purpose of s15(1) of the 1987 Act as to assess whether the worker was time barred.

On 24 August 2022, Member Read found that the claim for medical treatment expenses was subject to a time limit because the claim for medical expenses was entwined with the onset of incapacity for employment and that the worker’s date of injury assessed under s15 of the 1987 Act was 20 January 2017, being factually the date on which the worker was first incapacitated as a consequence of the psychiatric diseases. In coming to that conclusion Member Read rejected the worker’s submission that due to the withdrawal on the claim for weekly compensation the deemed date of injury under s15 of the 1987 Act should be the date of the compensation claim in January 2021.

Accordingly, Member Read determined that the worker was not entitled to compensation because his claim was not made within the 6 month period commencing on the date of first incapacity as contemplated by s261(1) and held that none of the exceptions applied.

This decision was upheld on appeal by Deputy President Elizabeth Wood. The worker appealed from this judgment to the New South Wales Court of Appeal.

The Appeal

The issues argued on appeal were:

  • Whether the operation of the deeming provisions in sub-ss 15(1)(a)(i) and (ii) of the 1987 Act are to be determined by reference to the timing of first incapacity for work and an entitlement to claim compensation based on economic loss (in which case the injury will be deemed to have happened at the time of that incapacity);
  • Whether s15(1)(a)(i) continues to apply if the worker does not (or commences and later abandons) a claim for weekly payments and solely pursues a claim for compensation of a kind which does not directly depend upon incapacity, as is the case with a claim for medical treatment under s60 of the 1987 Act and if so, in what circumstances; and
  • Whether the Deputy President erred in preferring Basten JA’s reasoning in Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 to that of Handley AJA in SAS Trustee Corporation v O’Keefe [2011] NSWCA 326 in the circumstances of the worker’s claim.

The NSW Court of Appeal (Griffiths AJA, Kirk and Stern JJA agreeing) dismissed the worker’s appeal with costs. The key elements of the judgments are:

  • The determination of which limb of s15(1)(a) of the 1987 Act applies turns on whether the claimant’s entitlement to compensation arises from an injury causing an incapacity, which is a question of fact to be determined on the facts of the specific circumstances of the claim. The concept of ‘entitlement’ under the relevant legislation cannot of itself be equated with the actual making of a claim.
  • Section 15 of the 1987 Act recognises both compensation entitlements arising from incapacity stemming from an injury and unrelated to incapacity. The deemed date of injury will be the ‘date of the claim’ as per s15(1)(a)(ii) only when the entitlement to compensation is unrelated to any incapacity (such as, for example, claims for death benefits under section 25 or lump sum compensation under section 66 of the 1987 Act, being the classes of claim contemplated by decisions such as Inghams Enterprises Pty Ltd v Thoroughgood) such assessment being different to claims founded in the timing of first incapacity (as assessed in decisions such as SAS Trustee Corporation v O’Keefe [2011] NSWCA 326).
  • The text of section 15(1) does not contemplate the nature of the ‘claim for compensation’ being pursued to be determinative in the question of whether an incapacity relevant to the claim has been present.
  • The question of ‘incapacity’ under section 15(a)(1) of the 1987 Act is a question of ‘fact’ determined by reference to the relevant evidence and cannot be ignored simply due to a reformulation of the claim to seek a benefit that does not depend upon incapacity. It followed that the appellant worker was time barred from recovering compensation.
  • The circumstances of the worker’s claim, properly considered, founded the claim for compensation for medical treatment expenses contemporaneously with incapacity such that, on the facts of the worker’s case the critical date for assessment of the commencement of the limitation period was 20 January 2017, and in the circumstances of this case it was not relevant that the worker had abandoned the claim for weekly payments for that incapacity.
  • The construction of the legislation submitted by the worker would “open the door to another worker in circumstances similar to that of the appellant gaming the statutory scheme and avoiding the limitation period in s 261 where there is a disease claim … by deferring the making of a claim under s 33 [for weekly statutory benefits] until after a claim under s 60 is determined”. While the legislation being considered is generally ‘beneficial’ in purpose, this does not mean that “every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially”: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1. Plainly, the Court considered that the legislation contemplated the making of a claim for all entitlements to statutory compensation promptly and a decision to delay was not appropriately ‘forgiven’ by this mechanism.

Key Takeaways

Analysis of the application of s15 of the 1987 Act to determine the critical date for limitation purposes is complicated by the specific circumstances of the claim for statutory compensation. Also superficially straightforward, s15 operates to assess the critical date differently depending on whether the foundation of the statutory claim is dependent on the existence of an incapacity. Even then, a fact rich analysis is required as to whether the claim for what might appear to be compensation not dependant of the incapacity, such as medical treatment expenses, is in the circumstances of the claim in fact related to incapacity.

It is necessary to undertake a careful analysis of the facts in any case where there has been a delay in making a claim for statutory compensation to ensure that the entitlements are not time barred.

Moray & Agnew acted for the successful respondent, GEO.

Further information / assistance regarding the issues raised in this article is available from the authors, Holly Ulmer, Partner and Erica Walter, Associate, or your usual contact at Moray & Agnew.