‘Fixing the Deeming Provision Dilemma’: how Haddad v The Geo Group shapes disease claims

Executive Summary 

This article summarises the implications of Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 (‘Haddad’) where it was held that a claim for compensation where incapacity is not a pre-condition, such as for medical expenses or for lump sum compensation, does not automatically default to a deemed date of injury being the date the claim was made as was established in Stone v Stannard^[1]. 

Workers Compensation Act 1987 (the 1987 Act) 

Section 15 of the 1987 Act, which provides the determination of a deemed date of injury for a workers claim, states the following:

(1)  If an injury is a disease which is of such a nature as to be contracted by a gradual process—
    (a)  the injury shall, for the purposes of this Act, be deemed to have happened—
        (i)  at the time of the worker’s death or incapacity, or
        (ii)  if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
    (b)  compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.

Identical provisions apply to aggravations etc. of disease injuries under section 16(1) of the 1987 Act.

Haddad

The Court found in Haddad that the principles as set out in Stone v Stannard and O’Keefe^[2] only apply in circumstances where the exceptions to sections 15 and 16 of the 1987 Act are not satisfied.
 
Griffiths AJA confirmed that for a disease injury, there is a limitation period imposed by s261(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which must be read alongside section 15(1) of the 1987 Act. Their Honours held, “the determination of which limb in s 15(1) applies turns on whether or not the worker has an incapacity. That is a question of fact, to be determined by the relevant evidence.”

Their Honours also found at [70], that, “merely because the appellant’s claim was reformulated so as to seek a benefit which does not depend upon incapacity, does not mean that the previous evidence indicating that there may have been incapacity can be ignored.”

Further, it was held at [105] of the judgment that “It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford^[3], that the deemed date of injury is the date of the claim.”

In short, in claims for lump sum compensation where the worker suffers a disease injury, the date of injury will be the first date of incapacity as per sections 15 and 16 of the 1987 Act, unless it is established there has been no incapacity for employment resulting from the injury. If the latter can be proved, Stone v Stannard is to be applied to affix the date of injury to the date the claim was made for section 66 purposes.

Sanders

Haddad has been considered by the Personal Injury Commission within numerous cases, in particular the case of Scalabrini Village Limited v Sanders [2024] NSWPICPD 36 (‘Sanders’).

President Phillips’ decision left open the question as to whether Haddad can be applied strictly or whether it is to be interpreted as only applying in circumstances where the evidence supports some temporal connection between incapacity and impairment.

Razmovski 

A subsequent decision by the Personal Injury Commission in Razmovski v NIB Health Funds Ltd [2024] NSWPIC 540 (‘Razmovski’) closely examined both Haddad and Sanders in determining the deemed date of injury.

The Applicant, Mary Razmovski, claimed that she sustained injury to both upper limbs while employed as a Retail Consultant with the Respondent, NIB Health Funds. She claimed that the repetitive, heavy and forceful use of her hands while undertaking duties including counting and handling cash, and using a mouse and keyboard, were the cause of her injury. The Respondent accepted that the Applicant sustained a disease injury to both upper limbs compensable as 14% whole person impairment.

The sole issue in dispute was the date of injury for the payment of the lump sum benefit under section 66 of the 1987 Act.

Critically, Member Isaksen gave the following reasoning:

Both Haddad at [69] and Sanders at [109] acknowledge that the determination of a deemed date of injury for a disease injury is a question of fact to be determined by the relevant evidence. However, it is the approach set out in Haddad, in particular at [80], which must be applied to determine the deemed date of injury for a particular entitlement sought by a worker under the 1987 Act.

Member Isaksen acknowledged there had been several decisions of the Court of Appeal in the past where the appellant sought to claim two different dates for a disease injury. However, he ultimately agreed with the findings of Principal Member John Harris in Ellis v Dontarna Pty Ltd [2024] NSWPIC 513 (‘Ellis’) that he was obliged to apply the most recent decision of the Court of Appeal in Haddad.

Ellis

It is emphatically clear on Principal Member Harris’ decision in Ellis, that the deeming provision under sections 15 and/or 16 of the 1987 Act, are not to be construed so as to give rise to an alternative date of injury unless it can be established on the evidence that there is no incapacity for employment resulting from the injury.

Member Harris noted that he was obliged to follow the precedent in Haddad and the decisions broad application, not restricted to claims for medical expenses.

He noted that whilst there were several Presidential decisions which followed the decisions of O’Keefe and Stone holding that where the claim was solely related to permanent impairment based on the disease provisions, the injury was deemed to have occurred at the date of the claim. He declined to follow those decisions in light of Haddad, and in circumstances where the injury in this case resulted in any incapacity.

Conclusion

The Haddad decision clarifies that the deemed date of injury for disease-related claims under the 1987 Act is typically the date of the worker’s incapacity, not the date the claim is made, unless there is no incapacity.

This principle, reaffirmed in subsequent cases like Ellis and Razmovski, emphasis the need for evidence to establish incapacity before determining the deemed injury date. The ruling in Haddad ensures that claims are based on the actual impact of the injury on the worker’s ability to work, rather than the timing of the claim. The decision provides clarity and consistency in claims for both medical expenses, and lump sum compensation.

Article written by Hicksons Partner in Charge (Newcastle), Najeh Marhaba, and Associates, Oliver Gilmour and Lloyd Carman.
 

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