When Every Year Is A Leap Year – Calculating The ‘Termination Day’

McEwan v Director of Dispute Resolution Directorate[2013] 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 4”.

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 2010.

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 date.

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.

For more information on this article or any other insurance matters please contact Vidal Hockless or Haydyn Hastwell on (08) 9321 3755.

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