The workers’ compensation scheme in New South Wales imposes time limits for workers to make a claim for compensation against an employer. Ordinarily, that time limit is six months. However, the case of Unilever Australia Ltd v Petrevska [2013] NSWCA 373 provides an important precedent for workers who do not become aware of their injuries for many years. In such circumstances, the time limit does not begin running until that awareness of both the fact of an injury and its cause is attained.

Work related hearing loss

Mrs Petrevska was employed as a process worker at Unilever’s Streets ice cream factory between 1983 and 1995. As a result of that employment she suffered a loss of hearing. However, it was not until 2009 that she received medical advice that she had suffered a loss of hearing as a result of her noisy employment. On 20 August 2009 she lodged a notice of injury with Unilever and lodged a claim for compensation.

Unilever argued that the claim was lodged outside the statutory time limit. This argument was based on the requirement set by Section 261(1) of the Workplace Injury and Management Act 1998 (NSW), which requires that a claim be lodged within the six month period “after the injury or accident happened.” Petrevska argued that the time limit did not start running until the time that she received medical advice concerning her hearing loss and its cause. This argument was sed on Section 261(6) of the Act, which provides:

 “(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”

The key question, therefore, was when Petrevska first became aware of the hearing loss. This question was complicated by the fact that the injury was one of gradual onset; it occurred over a period of many years of noisy employment. Moreover, the hearing loss had many possible causes, including disease, ageing, and noise exposure. Macfarlan JA held that Petrevska’s “awareness”, for the purposes of Section 261(6), referred to her awareness of both the fact of the hearing loss and its cause. This “awareness” comprised more than an opinion or belief and instead required “a high level of assurance”. Such a state of awareness, so it was held, was attained only upon the receipt of the medical advice rendered in 2009. As such, Macfarlan JA, with whom Meagher and Tobias JA agreed, found that the Workers’ Compensation Commission had not erred in law and upheld its decision awarding Petrevska compensation for her loss of hearing.

The case is a significant precedent for workers with prospective claims to compensation. In seeking leave to appeal, Unilever informed the Court of Appeal that over fifty cases at the time hinged on the outcome of the appeal. In cases of injuries of gradual onset in particular, such as hearing loss or skin cancer, the decision is significant as it allows workers to access compensation regardless of whether or not their last employment that contributed to the condition has since ceased. Nevertheless, from the time that awareness of the fact of the injury and its cause is attained, a strict six-month time limit begins to run. Therefore, it is important to seek legal advice as soon as practicable after becoming aware of any injury to which previous employment has contributed.