Common Law Over Period of Time Injuries Policy

The aim of this policy is to simplify the process when dealing with claims relating to events that span multiple legislation (over a period of time or OPT claims) whilst still preserving the law relating to limitation periods and other provisions of the workers' compensation legislation such as those that relate to liability and quantum issues.

Section 235A of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) prescribes that the injury date for OPT injuries is taken to be the date on which the worker first consulted a relevant health practitioner about the injury.

Similarly, in respect of latent onset injuries, section 36A of the Act prescribes that the injury date for a latent onset injury is taken to be the date of the doctor’s diagnosis of the latent onset injury.

The effect of section 236 of the Act is that the injury date prescribed by s235A or s36A does not alter the period of limitation provided by the Limitation of Actions Act 1974 and the application of s302.

Policy

Where a worker seeks to bring an OPT common law claim, the date of the injury for the purposes of determining whether the Workers' Compensation Act 1990, the WorkCover Queensland Act 1996 or the Act applies to the claim is the date the worker first consulted a relevant health practitioner as defined[i] about the OPT injury, or the date of the doctor’s diagnosis in the case of latent onset injuries, (the 'injury date').

This means the parties need only comply with the procedural steps under the legislation in effect at the time of the injury date. This includes:

• service of one Notice of Claim (NOC) for Damages;
• delivery of one compliance and liability response;
• one mandatory final offer.

It also means that the worker only needs to comply with the entitlement provisions in effect at the injury date. For example, a worker does not need to obtain damages certificates under the Workers' Compensation Act 1990 if the deemed date of injury is after 1 July 2010.

WorkCover does not waive its right to rely on relevant provisions of both the WorkCover Queensland Act 1996 and the Act with respect to limitation, entitlement (including threshold), liability or quantum matters.

Where the OPT claim is statute barred or partly statute barred WorkCover will reserve its rights to rely on the Limitation of Actions Act 1974 and follow the applicable steps as set out in our limitation period policy.

To make it clear that the claim is to be dealt with under this policy, the worker's solicitor should set this out in their covering letter with the NOC.