A recent legislative change in the Workers Compensation arena has, at last, removed the restrictive statutory timeframe in which injured workers must exercise their Common Law rights. The abolishment of the statutory ‘Termination Date’ has gone a great way to ensuring that injured workers in Western Australia receive the full amount of compensation that they deserve following a workplace injury.
Prior to the Workers’ Compensation and Injury Management Amendment (Covid – 19- Response) Act 2020, which commenced on 12 October 2020, an injured worker needed to confirm, by way of election, an intention to pursue a Common Law damages claim against their employer by the statutory Termination Date, a tight deadline which injured workers often missed, on account of a number of factors including being unable to access
independent legal advice before the expiry of the Termination Date, or a lack of full understanding of the implications of missing the Termination Date. At a time when injured workers were focusing upon adapting to life post injury, and their recovery and rehabilitation, the statutory Termination Date was an unwelcome and arbitrary requirement which removed the rights of many injured workers to access justice.
The Workers’ Compensation and Injury Management Amendment (Covid – 19- Response) Act 2020 discontinues the Termination Date by deleting the relevant provisions in the Workers Compensation and Injury Management Act 1981 with effect from 12 October 2020.
Effectively, the time frame in which injured workers now have in which to bring a common law damages claim against their employer defaults to the time limit provided for in the Limitation Act 2005, which is usually 3 years. This is a significant extension of time, which is now fairly in line with other kinds of personal injury claims.
It is important to note that this applies to injured workers whose termination date has already passed, as well as those who haven’t yet reached it. Therefore injured workers who have missed the statutory Termination Date, but who have not yet reached the time limit provided for in the Limitation Act 2005 and who meet the procedural requirement based upon whole person impairment of at least 15%, are now able to exercise their Common Law rights.
The financial difference in settling a claim based upon the Workers Compensation system compared to the Common Law system can be huge. It is highly recommended that all injured workers whose injuries occurred less than 3 years from the recent statutory change on 12 October 2020, should seek out urgent independent legal advice to establish their rights considering the recent legislative change.
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This article was written by Dawn Williams,
Senior Associate and Specialist in Personal Injury Law