Limitation Dates

Tuesday, December 16, 2008

If you are injured the law limits the time within which you must commence a claim for damages at common law. This is called a limitation period. If you fail to bring your claim within that time period you may be barred from pursuing your claim regardless of the merits.

Under the Workers’ Compensation and Injury Management Act the limitation date is referred to as the termination date.

Your termination date is one year from the date that you lodged your claim for  workers' compensation with your employer. Under certain circumstances the termination date can be extended.

Access to common law damages

Access to common law damages is dependant upon:

1. Proving your employer was negligent;and

2. An approved medical specialist assessing your impairment level at not less than 15%; and

3. Registering an election to pursue common law damages prior to the termination date; and

4. Commencing common law proceedings within 30 days after the Director has given notice that the election has been registered.

How does it work?

For example, if your are injured on 26 June 2008 and you make a claim on your employer on 30 June 2008 the termination date is 30 June 2009.

Six months after you make a claim for compensation you will receive a notice from your employer’s workers’ compensation insurer notifying you of the termination date. It is important that you do not ignore this notice.  If you do not act prompltly when you receive this notice you may forfeit your right to common law damages.

It is recommended that you seek legal advice when you receive this notice for the following reasons:

1.  An appointment with an approved medical specialist will have to be scheduled and often you may have to wait 2 or 3 months before the specialist is able to see you.

2. The approved medical specialists  can be expected to take a further 6 to 8 weeks to provide you with the report and certificate about the outcome of the assessment.

If you are assessed as having a permanent impairment of not less than 15% you will then have to lodge the approved medical specialist's report and certificate at Workcover. This is called an election.

After you have lodged the documents you will  receive notification from the Director that your election has been registered. 

Within 30 days of receiving notification from the Director that your election has been registered you must commence proceedings in the District Court.