Determining the deemed date of injury in permanent impairment claims arising from a disease injury – insights from recent case law
Published on March 12, 2025 by Jacqueline Pearce and Scott Dougall
The decision of Haddad v the GEO Group Australia Pty Ltd [2024] NSWCA135 (“Haddad”) has dramatically altered previously understood principles around the date of injury allocated to a permanent impairment claim arising from a disease injury.
The law pre-Haddad
In accordance with the reasoning in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 (“Stone v Stannard”) , the date of injury for a permanent impairment claim arising from a disease injury was deemed to be the date upon which the impairment claim was submitted.
In almost all instances this date was after the initial notice of injury and incapacity. This usually meant a claimant would be allocated a date of injury for medical treatment and incapacity, deemed to be the date of the initial incapacity. If they subsequently made a claim for permanent impairment, it would be allocated a second date of injury, being the date of the permanent impairment claim.
The relevant legislation
Section 15 of the Workers Compensation Act 1987 provides the basis for determining the deemed date of injury. Identical provisions also apply to aggravations of disease injuries under Section 16(1) of the 1987 Act.
Section 15 reads as follows:
“15 Diseases of gradual process–employer liable, date of injury etc
(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.”
The Courts reasoning in Haddad
In Haddad the Court found the principles set out in Stone v Stannard were only to apply where Sections 15(1)(a)(i) or 16(1)(a)(i) of the 1987 Act are not satisfied, and accordingly if there has been a period of incapacity, that date will be deemed to be the date of injury for the purposes of the claim (including a permanent impairment claim). Their Honours held “The determination of which limb in Section 15(1) applies in terms of whether or not the workers has an incapacity. That is a question of fact, to be determined by the relevant evidence”.
When distinguishing the decision in Haddad from earlier case law, their Honours held “It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim”.
Following this reasoning, any level of incapacity, is sufficient to activate Section 15(1)(a)(i) and to determine the relevant deemed date of injury for a permanent impairment to claim.
On a strict reading, this would mean that a very small period of partial incapacity, such as a single day, is sufficient to deem the date of injury for all claims. This reasoning would apply even if the nature and extent of the injury was not apparent for an extended period and permanent impairment did not arise from the injury for some time.
Subsequent decisions
Subsequent decisions of Razmovski v NIB Health Funds Limited [2025} NSWPICPD 9 (“Razmovski”) and Ellis v Dontarna Pty Ltd [2024] NSWPIC 513 (“Ellis”) affirmed the approach in Haddad.
In Ellis and Razmovski it was held that there is no basis to construe Section 15 and/or 16 of the 1987 Act to give rise to an alternate date of injury unless it can be established on the evidence that there is no incapacity for employment resulting from the injury, and therefore the second limb (section 15(1)(a)(ii) is applied, allowing the date of injury to reflect the date of the claim.
Insurers have closely followed the Haddad reasoning and have maintained a strict interpretation of the allocation of a deemed date of injury for permanent impairment claims.
Scalabrini Village Limited v Sanders [2024] NSWPICPD36 (“Sanders”) – an alternate approach?
In Sanders President Philips left open the question of whether Haddad should be strictly applied in all instances, or whether its interpretation depends on evidence supporting a temporal connection between the initial incapacity and the permanent impairment.
Final comments
It is not clear that the circumstances considered by President Phillips in Sanders have been explored in detail, and accordingly there may potentially be a basis to assert an interpretation of incapacity that may require a causal connection with a subsequent impairment. In this regard, the nature of a disease injury is often one accumulated over an extended period and in many instances the existence and nature of permanent impairment may bear little relationship to the initial incapacity.
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you. You can also complete our Personal injury Claim Check at any time here.
