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When they say “Timing is everything” – they really mean it. Time limits in Workers Compensation Claims explained

Published on May 14, 2021 by Hanaan Indari and Bianca ChieffeHanaan Indari and Bianca Chieffe

Sustaining an injury at work can be a stressful time for injured workers. Work injuries can have significant consequences on injured workers and their families. Although injured workers should initially focus on their treatment and recovery, it is also important for workers to keep in mind that there are strict time limits which apply in making workers compensation claims.

What is the time limit to make a claim for Workers Compensation in New South Wales?

Section 261 of the Workplace Injury and Management Act 1998 (NSW) outlines the time within which a claim for workers compensation must be made.

The time limit to make a claim for workers compensation in New South Wales is six (6) months from the date of injury or accident, or, in the case of death, within six (6) months after the date of death. However injured workers should not delay and aim to make a claim as soon as possible.

What happens if an injured worker has not made a claim within six months from the date of injury or accident?

If an injured worker has not made a claim within six (6) months from the date of injury or accident, it is possible to make a claim up to three (3) years after the date of injury or accident if the injured worker can demonstrate that there is a reasonable cause for the delay in making a claim.

Section 261 (4) of the Workplace Injury and Management Act 1998 (NSW) outlines that a reasonable cause of delay can include if the injured worker;

  1. did not lodge a claim as a result of ignorance or mistake
  2. if they were absent from the state, or;
  3. if the injured worker did not become aware of their injury until some time after the initial date of accident or injury.

In the event that the reason for the delay was because the injured worker did not become aware of their injury until some time after the initial date of accident or injury, Section 261 (6) of the Workplace Injury and Management Act 1998 (NSW) applies and outlines that the time limit will not begin from when the injured worker was injured, rather the time limit will begin from when the worker became aware of their injury and work related cause.

This principle was tested in Unilever Australia Ltd v Petrevska [2013] NSWCA 373. In this case, an injured worker sustained hearing loss as a result of her employment in a noisy environment from 1983 to 1995. She did not become aware of her hearing loss until many years later and made a claim for workers compensation in 2009.

The insurer disputed liability for the injured workers claim on the basis that she was outside of the time limit to make a workers compensation claim. However, the injured worker argued that the time limit did not begin until when she received medical advice in relation to her hearing loss and its work related cause.

The Court agreed with the injured workers argument and it was held that a workers compensation claim could be made within six months of a worker becoming aware of the injury and work related cause.

Can injured workers make a claim outside of the three year period?

It is possible for injured workers to make a workers compensation claim outside of the three (3) year period from the date of injury or accident if the injury resulted in death or serious and permanent disablement, however the injured worker will still have to demonstrate there was a reasonable cause for the delayed claim.

What about time limits for work injury damages claims?

A work injury damages claim is a common law claim against an injured workers employer for negligence. In New South Wales, to make a work injury damages claim, an injured worker must make a workers compensation claim for lump sum compensation under Section 66 of the Workers Compensation Act 1987 and obtain an assessment of whole person impairment of at least 15% and demonstrate that the injury was a result of the employer’s negligence and this negligence caused the injured worker to suffer a loss. 

In a work injury damages claim, Court proceedings must commence within three (3) years of the date of the date of injury or accident unless there is approval from the Court and an extension of time is granted. It is not guaranteed that an extension of time will be granted; therefore it is important to make a work injury damages claim within the three (3) year time limit.

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For injured workers, it is important to seek legal advice and assistance as soon as possible after a work injury has been sustained or the injured worker becomes aware of an injury.

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