Worker’s claim set aside for procedural defects

16 May 2024

A worker who suffered a lower back injury during his employment was unsuccessful in his claim for damages in the Supreme Court on the basis he failed to comply with requirements determined under the Workers’ Compensation and Rehabilitation Act 2003 and was time barred pursuant to the Limitations of Actions Act 1974 following WorkCover’s rejection of the claim, despite new medical evidence.

In issue

  • The main issue for determination was whether the claim should be set aside where the Plaintiff failed to comply with numerous requirements under the Workers’ Compensation and Rehabilitation Act 2003 (WCRA), and where the cause of action was time barred pursuant to s 11 of the Limitations of Actions Act 1974 (LAA).

The background

Mr Kalecinski (the Plaintiff) was employed by Mercy Community (the Defendant) as a maintenance assistant. He alleged that on 18 May 2018, he sustained an injury to his back when he lifted a heavy tent in the course of his employment.

On 20 July 2018, the Plaintiff lodged an application for statutory WorkCover benefits. WorkCover rejected this claim, with the Worker’s Compensation Regulator confirming WorkCover’s decision. The Plaintiff subsequently filed a claim in the Supreme Court seeking $750,000 for loss of wages and future income as well as $1.2 million for physical and secondary psychiatric injury due to chronic pain.

The Plaintiff filed an amended statement of claim, however, failed to plead the material facts necessary to constitute the cause of action in negligence, in particular, there was no allegation of duty of care nor breach of duty. The Defendant opposed leave being granted to amend the statement of claim and further sought orders that not only the statement of claim be struck out, but that the claim itself be set aside on the basis that:

  1. The Plaintiff failed to comply with numerous requirements under the WCRA; and
  2. The cause of action was now time barred pursuant to s 11 of the LAA.

The decision at trial

Crow J held that the worker’s claim be set aside.

As to the first issue, the Plaintiff argued that his failure to comply with WCRA was that due to the Regulator having rejected his claim, he was not responsible to comply with any sections of the WCRA. The requirements to seek damages are specified in s 237 of WCRA. Crow J specifically noted that section 237(5) of the WCRA states, 'To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.'

Accordingly, as the Plaintiff had not received a notice of assessment of injury and was not entitled to receive a notice of assessment of injury as his claim had been rejected, he was incapable of bringing a cause of action against his employer.

As to the second issue, the Plaintiff argued that although his cause of action was time barred, he should succeed in an application to extend the time period under s 31 of the LAA as he had new medical evidence that was not part of the original claim. The medical evidence referred to included reports received by the Plaintiff on 25 May 2022 and 26 October 2022, being over 12 months prior to the date he commenced his cause of action (7 December 2023). Crow J determined that, despite the Plaintiff being self-represented, there was no other material fact pursuant to s 30(1)(a) of the LAA sufficient to justify an extension of the time. Accordingly, Crow J deemed it inappropriate to grant the Plaintiff leave to further amend his claim and statement of claim.

Implications for you

This judgment provides a useful reminder of the importance of bringing claims in a timely manner and in accordance with the prescribed statutory guidelines, even in circumstances where the Worker is self-represented.

Kalecinski v Mercy Community [2024] QSC 49

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