‘Speak now… or forever hold your peace’ – Requirements for claiming outside the limitation period

Key Points:

• Failing to make a claim for compensation within the limitation period (3 years) does not necessarily mean a worker cannot claim for compensation if (relevantly) they prove the reason(s) as to why they did not claim within this timeframe.  

• The employer does not carry an onus to prove that the worker was aware of their rights to claim compensation. It is up to the worker to prove that they were ignorant of those rights within the limitation period.

• The Personal Injury Commission agreed that the histories first given by the worker will be most reliable when identifying the state of mind of the worker within the limitation period. Further, these histories are important in identifying what the worker knew (or did not know) within the limitation period.

On 23 April 2021 the Personal Injury Commission delivered a determination of appeal against a decision of the Commission in Burke v Suncorp Staff Pty Ltd [2021] NSWPICPD 6. The worker claimed the Member had erred in fact in finding and that the worker’s failure to claim compensation was not occasioned by ignorance.

Section 261 of the Workplace Injury Management and Workers Compensation Act 1998 provides the time limit within which a claim for compensation must be made. It requires a claim for compensation be made within 6 months of the injury, or in the case of death, within 6 months after the date of death.

Failure to make a claim within this time does not necessarily bar the recovery of compensation if the claim for compensation was made within 3 years of that injury, and it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause.

Facts:

The worker commenced working with Suncorp Staff Pty Ltd from about 28 July 2008. She was employed full-time as a claims support officer with the respondent’s ‘First Response Unit’. The worker’s duties were mainly administrative and customer service which involved answering calls, preparing and opening new claims, and entering information into a database.

The worker was given a new responsibility of training a new staff member. It was claimed this new responsibility added an increased pressure on the worker, and she was working harder to accommodate the new employee’s mistakes. As a result, the worker sought treatment for anxiety and claimed to have suffered from panic attacks. She collapsed at home on 6 September 2009 and did not return to work thereafter. She received sick leave, annual leave and unpaid leave. Further, the worker made a claim for income protection benefits which was accepted and was paid income support by that insurer.

The worker subsequently lodged a worker’s compensation claim form on 22 October 2014 alleging a psychological injury resulting from these circumstances.

The claim was reasonably excused by the insurer. A decision was made on the evidence to dispute liability for injury. Additionally the defence under s 11A(1) of the Workers Compensation Act 1987 (reasonable management action) was relied on.

Appeal:

The worker raised the following grounds of appeal:

1. The Member erred in fact in finding that the appellant’s failure was not occasioned by ignorance. (Ground No. 1)
2. The Member erred in law in considering that the appellant’s receipt of income protection payments displaced the proposition that she was ignorant in material respects about her right to claim compensation payments. (Ground No. 2)
3. In light of his assessment that income protection payments were relevant to the application of s 261(4) of the 1998 Act, the Member erred in point of law in failing to consider whether the failure to claim was occasioned by “other reasonable excuse”. (Ground No. 3)

The appeal failed on all three grounds.

Why the appeal failed:

There were a number of reasons provided by the Member as to why the worker’s appeal and claim for compensation was unsuccessful. The Member provided the following reasons in the determination of his decision:

• There were difficulties in obtaining a “clear chronology” where a case is “brought so far outside the limitation period”. The evidence supported the pressure of work did not overwhelm the worker until about mid-2009. The history disclosed the worker was treated for depression prior to this (“from 2008 at least”). The Member said there was a danger of “inadvertent reconstruction of events as remembered many years later”.
• There were inconsistencies in the worker’s evidence when compared to the contemporaneous facts and medical histories. The danger in this was that there would be an inadvertent reconstruction of events as remembered many years later, ultimately finding the worker’s evidence to be unreliable.
• Claim of ignorance? The Member was not satisfied by the worker’s reasons for not making a claim at the relevant time “because she did not realise that a claim could be made in this jurisdiction for the consequence of a psychiatric injury”. The Member noted the worker had been employed by an insurance company in a department that processed claims. Further, the worker had previously made a claim for compensation for an injury she sustained to her back. The Member was therefore not persuaded of the worker’s ignorance based on the fact that the proposition proffered by the worker was more in keeping with a reconstruction of ideas after the fact.   

It is important to note the Member did not find the worker was lying or was being deliberately untruthful. He noted there is a distinction to be drawn between a finding of deliberate untruthfulness and one based on unreliability: Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest). The Member made a finding of unreliability in the present case.

The worker attempted to argue she could not be found to be an unreliable witness because she was not cross-examined. This did not succeed, as the Member found that the parties had ample opportunity over the years to make appropriate submissions on the issues and noted that cross-examination was not required.

Lessons:

• The employer does not carry an onus to prove that the worker was aware of her rights, it is up to the worker to prove that she was ignorant of those rights at the relevant time.
• Contemporaneous factual evidence is often more reliable than subsequent recollection of factual matters. Histories in earlier medical evidence (clinical notes, for example) can be more persuasive to substantiate what is causative of a symptom than a history given in a subsequent medical report obtained for the purpose of supporting a claim.

Please contact Specialist Workers Compensation Partner, Naomi Tancred, at [email protected] with any questions you may have.