McEwan v Director of Dispute Resolution
Directorate WASC 355
The Applicant, Mrs McEwan, suffered a back injury when she fell
from a roof during her employment. An extension to her
'termination day' was granted on three occasions, but on
the fourth was refused by the Director's Delegate. She
therefore applied to the Supreme Court to overturn the decision to
reject her application to extend the termination day to 30 June
2011 under section 93M of the Act.
The Director's Delegate wrote to the Applicant's
solicitors stating that, based on the information provided in the
Form 35, the original termination day was 29 June 2010, therefore
the latest date to which an extension could be granted was 29 June
2011. The application of 30 June 2011 for a further extension of
time from 10 September 2010 to 30 June 2011 was assessed as being
late by one day. Justice Martin rejected this assessment.
His Honour cited the relevant provisions of the Workers'
Compensation and Injury Management Act 1981, noting that
section 93M(6) provides "an extension under sub section 4
is to be to a day that is not more than one year after the day that
would have been the termination day had there been no extension
under that subsection except that, in circumstances described in
sub section (4)(d) the Director may give an extension for as long
as the Director considers necessary to give the worker an
opportunity to make an election".
The claim for compensation was found to have been made on 29
June 2009. Section 93M(1) states "if the claim for
compensation by way of weekly payments has been made wholly or
partially with respect to any injury, the termination day for an
election to retain the right to seek damages in respect of that
injury is the last day of the period of 1 year after the day on
which the claim for compensation by way of weekly payments is made
unless a later day is fixed by sub section 3 or under sub section
Justice Martin determined the original termination date to be 30
June 2010 (1) on the basis that that was the date nominated as the
termination date by the insurer and (2) by interpreting the
relevant statutory provisions by reference to the
Interpretation Act 1984. He therefore found that the last
day of the relevant period under section 93M(1) was 30 June
By the same reasoning, he found that the last day of the period
of an extention under section 93M(6) was 1 July 2011.
He therefore quashed the decision of the Director's Delegate
and sent the application for an extension of the termination date
back to the Director for determination on the basis of his findings
as to jurisdiction.
Unless and until a different decision is made on the method of
calculation by the Supreme Court, the likely effect of the decision
is that Workcover/the Director's Delegate will now determine
the termination date and the extension dates using that same
methodology, which would seem to involve allowing an extra day for
calculating both the initial termination date and the extension
However, given that the foreshadowed amendments to the Act
include dispensing with the termination date altogether, any
concerns that insurers may have with the practice will be
relatively short lived.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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