How long after a work related accident can you sue? (Vic)
Let’s start with this – you can make a claim for WorkCover compensation (medical expenses and weekly payments) as soon as you’re injured.
Now if we move on to lump sums, the timing of when you can “sue” becomes a bit more complicated.
Before a person can sue for common law damages in Victoria after a work related injury or illness, they must have:
- either a 30% whole person impairment or
- have successfully made an application for a “serious injury” certificate.
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What are the rules for when you can get 30% whole person impairment or apply for a serious injury?
To get a 30% impairment you must make an impairment benefit application, which can either be done after a minimum of 12 months, or earlier if you can convince the WorkCover insurer that the injury is stable based on medical grounds.
The practical effect of this rule is that most impairment claims are lodged after 12 months have passed, as one you’ve gotten past the initial phase of dealing with the injury, then engaged a lawyer to bring your impairment claim, the lawyer obtain the necessary medical records and reports, lodge the claim and have the insurer process it, you are already going to be approaching 12 months.
If the insurer then rejects the impairment claim on the basis that your condition is not stable, the time you spend disputing this decision should take you over 12 months anyway.
Once you’ve lodged an impairment claim, it must be resolved before you can lodge a serious injury application.
That means you have to go through the whole process, or alternatively you could withdraw the impairment benefit application, though that is not recommended (and you would still need to hit 18 months to bring a common law claim anyway).
Once your impairment claim is finished, you can make a claim for serious injury/common law damages.
Either way you will need to make a serious injury application, but if you have 30% impairment you application has to be accepted.
If you decide that you don’t want to lodge an impairment claim, then you have to wait 18 months from the event or circumstance giving rise to the injury occurred.
Are there any exceptions?
Yes, there is an exemption – for terminally ill workers. For example, a worker that has terminal cancer (whether this is related to the injury or not) or mesothelioma, can make an urgent application where both the issues of serious injury and negligence/damages are addressed.
This can be done at any time.
Unless you or your lawyer can convince the WorkCover insurer that your injury is stable at a very early stage, the earliest you can kick off any lump sum compensation is 12 months from the date of injury.
If you are able to have your impairment claim resolved prior to 18 months, then you could lodge your serious injury claim prior to 18 months.
If you can’t, you’ll either be waiting until your impairment claim is resolved, or start things off at 18 months if you didn’t lodge an impairment claim.
And before a person is able to sue following a workplace injury or illness, they need to have a 30% or greater whole person impairment rating, or have obtained a ‘serious injury’ certificate.