It is not uncommon for us to receive enquiries from clients who have missed the time period for making a WorkCover application. A typical scenario is that a person sustains an injury in the course of their employment but they are concerned they will upset their employer and put their employment at risk by seeking WorkCover benefits. While significant legal protections exist for continuing employees who are on WorkCover, it is only human nature to want to “do the right thing” by the employer, especially where the employer is caring and accommodating of the employee’s injury.
But time passes and things change. Perhaps the employer goes out of business. Perhaps the person loses their job for reasons unrelated (or, possibly, related) to the injury. Despite everyone’s best intentions, the employment is gone but the symptoms and impairment from the injury persist. In the meantime, the 6 month period for lodging the WorkCover application has expired.
Having an injury recognised by WorkCover is the gateway to all entitlements for work related injuries, so if the expiry of the 6 month period was the end of the story it would leave many injured workers in a dire situation. Fortunately however that is not the case.
The first thing we do when confronted with this situation is to see if we can get the 6 month period waived. This is not straightforward, as the time limit is strictly enforced and the grounds for waiver are limited. Ignorance of the time limit is not an excuse nor, in terms of the typical scenario mentioned above, is a desire to protect the employer. Whether or not the time period can be waived in any given case requires close analysis by an expert lawyer.
If an extension is simply unavailable, that will mean that an entitlement to immediate support from WorkCover such as replacement wages and funding and management of medical treatment and rehabilitation – what we call “statutory entitlements” – will not be available. But a valuable entitlement (and possibly the most valuable entitlement) may still remain.
Even where it is not possible to get an extension of time on the WorkCover application, if:
- there is likely to be an ongoing effect on the injured worker’s capacity for employment in the future; and
- the injury occurred due to a lack of workplace health and safety,
then the worker will still be able to bring a claim for common law damages. This claim for common law damages is primarily designed to address future loss of income where there is an ongoing effect on capacity for employment, be that complete unemployment or a reduced working capacity. This lump sum entitlement can be very valuable.
As stated, the initial WorkCover application is the usual gateway to all workcover entitlements including the common law damages claim, but where that application is out of time, it is still possible to undertake a procedure to create a pathway to bring the common law claim. We have significant expertise and experience in undertaking and managing this procedure for the benefit of clients who may be out of time to make the initial WorkCover application.
Of course, the claim for common law damages is itself subject to a time limit known as limitation of actions. This imposes a 3 year period in which to initiate the common law claim, but even this can be extended where only later does the injured worker discover something they didn’t know before about the nature and extent of their injury. This can include a diagnosis of the underlying cause of the symptoms, or medical advice that the injury is far more serious than was previous thought.
Other circumstances can operate to extend limitation periods as well. The 3 year period does not start until the age of majority (i.e. 18 years) so where the injured worker is a minor (say in the case of a 1st year apprentice, or a school student with a part time job) the limitation period will not even commence until their 18th birthday. Also the 3 year period will not run at all as long as the injured person has mental incapacity, such as may occur in the case of a serious head injury.
In summary, while it is desirable to lodge a workcover application within 6 months following the injury, failure to do so will not necessarily extinguish the compensation entitlements of an injured worker. Anyone in this situation should not hesitate to seek legal advice from an expert personal injury lawyer, as valuable compensation options may still remain.
