What is a work injury damages claim?
A work injury damages claim is made when an injured worker sues their employer in court for damages due to negligence. Work injury damages claims were previously called common law claims. Not all injured workers have an entitlement to claim work injury damages and strict eligibility criteria apply.
Damages are paid as one lump sum and only cover the economic loss of past and future earnings.
The worker must have received all statutory lump sum entitlements for permanent impairment and pain and suffering (non-economic loss) to which they are entitled before a work injury damages claim is settled.
A work injury damages settlement cancels all further entitlements to workers compensation benefits including lump sum payments, weekly payments, medical, hospital and rehabilitation expenses.
The amount of weekly compensation that has already been paid to the worker must also be repaid out of the amount awarded. The amount awarded can also be reduced if the worker’s own negligence contributed to the injury.
A claim for work injury damages can only be started at least six months after the worker gave notice of the injury to the employer, and not more than three years after the date of injury.
Who is entitled to make a claim for work injury damages?
To be eligible to make a claim for work injury damages, the following criteria must be met:
- the work injury is a result of the negligence of the employer
- the injured worker must have an assessed permanent impairment of at least a 15 per cent whole person impairment
- claims for lump sum compensation for permanent impairment and pain and suffering must be made prior to or at the same time as the work injury damages claim, and must be settled prior to a work injury damages claim being finalised.
How is a work injury damages claim heard?
Initially, the Workers Compensation Commission attempts to mediate and reach settlement through discussion and agreement of all parties. If an agreement is unable to be reached, work injury damages claims are heard in the District Court.
If a work injury damages claim is not successful, the worker will continue to receive workers compensation under the statutory scheme, but is likely to be liable for court costs incurred during the work injury damages claim.
If you think you may be eligible to lodge a work injury damages claim and would like to proceed, you must first seek independent legal advice. If you are unsure of how to locate a suitable legal representative, you may contact the Law Society.
Call 13 10 50 for more information about work injury damages.