Andersen v Aged Care Employers Self Insurance

The applicant, Ms Andersen, sought a declaration that she was entitled to damages for an injury she sustained in the course of her employment, against her employer’s insurer, Aged Care Employers Self Insurance. The applicant sustained an injury to her neck and shoulder region and filed a notice of claim dated 2 August 2010, which was later amended by a statutory declaration sworn on 9 March 2011. The insurer, however, argued that the injury was not sustained in the circumstances described by Ms Andersen and allocated the date of injury to an earlier event, contrary to the applicant’s claim. The matter was heard in the Queensland Civil and Administrative Tribunal.

The central legal issue before the tribunal was whether the applicant was entitled to damages for the injury as described in her amended notice of claim. The tribunal had to determine whether the insurer had the authority to allocate the date of the event that caused the injury and whether the insurer's allocation of an earlier date as the date of the injury was justified. Additionally, the tribunal needed to ascertain whether the applicant's claim was barred by the Workers’ Compensation and Rehabilitation Act 2003 provisions.

The tribunal found that the insurer did not have the authority to allocate the date of the event causing the injury, as this power was reserved for the tribunal under section 237(1)(a)(i) of the Act. The tribunal also found that the insurer's allocation of an earlier date as the date of the injury was not justified, as there was no evidence to support this claim. Consequently, the tribunal held that the applicant was entitled to seek damages for the injury as described in her amended notice of claim. The tribunal's decision was based on the principle that the applicant's entitlement to damages should not be prejudiced by the insurer's mistake as to the date of the event causing the injury.

The tribunal declared that Ms Andersen was entitled to seek damages for the injury the subject of her notice of claim dated 2 August 2010, as changed by her statutory declaration sworn 9 March 2011, pursuant to section 237(1)(a)(i) of the Workers’ Compensation and Rehabilitation Act 2003.