Failing to give notice of injury in time
While there are provisions in the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which prevents the recovery of compensation if an injured worker has failed to give notice of an injury within the prescribed time frames, these are rarely applied.
In the matter of Jarvis v State of New South Wales (Northern Sydney Local Health District) & Ors [2023] NSWPIC 20 the time limit provision found in section 254 of the 1998 Act was found to operate in relation to the first respondent, Northern Sydney Local Health District (NSLHD).
The applicant asserted she sustained a psychological injury due to the circumstances of her employment with both respondents, the State of NSW (NSLHD) (the first respondent) and State of NSW (Southern NSW LHD) (SNSWLHD) (second respondent).
On 13 December 2019, the SNSWLHD completed an Injury Notification to its insurer. This reported the applicant was suffering from trauma induced flashbacks related to prior experiences in the Emergency Department and unfavourable interactions with management. Subsequently on 23 September 2020, a Worker's Injury Claim Form was submitted asserting Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD), citing these conditions as ongoing since 2003.
Both respondent’s declined liability for the applicant’s injuries. Part of the first respondent’s declinature was based on sections 254 and 261 of the 1998 Act, regarding the applicant’s failure to give notice and make a claim as required by those sections.
Special circumstances defence
The applicant submitted she was ignorant of her condition within the meaning of section 254(3)(b) of the 1998 Act. The applicant said she was unaware she had a psychological injury until late 2019.
Section 254 of the 1998 Act outlines some of the circumstances where compensation can be recovered by an injured worker.
Generally, notification of an injury must be provided to the employer as soon as possible, however in cases where special circumstances exist – such as mistake, ignorance, absence from a state or reasonable cause, among other criteria – recovery of compensation may still be possible provided the respondent has not been prejudiced by the failure to give notice.
Each respondent essentially submitted the injury to the applicant could be attributed in part, if not entirely, due to her employment with the other respondent.
Crucially, the first respondent submitted the applicant's claim was lodged a full 12 years after her employment with it had ended. The first respondent’s assertion was that this time lapse meant the applicant had failed to meet her legal burden as laid out by sections 254 and 261 of 1998 Act.
Decision
The Member found the applicant had not provided the first respondent with sufficient notice of her injury and concomitantly; did not provide any evidence demonstrating the unawareness or ignorance of her legal rights, a reasonable cause for delayed notification, nor did she establish her claim as not causing prejudice to the first respondent. Consequently, the applicant’s failure to comply with section 254 prevented her recovery of compensation from the first respondent.
Takeaway
When a submission of a claim is significantly delayed, it is essential to evaluate the cause of the delay, and whether any special circumstances in section 254(3) of 1998 Act apply which will allow for an extension of the time period for the giving notice of an injury, and the making a claim for compensation. The employer is entitled to adduce evidence of any prejudice it suffers caused by such a delay. While the defence is rarely successful, when there is a significant delay with no explanation from the worker and there is a prejudice to the defendant, this remains a viable defence.
Authors: Kate Ralph & Stephen Marsh