Workers compensation law is aimed at supporting workers who are injured, aggravate a pre-existing injury or condition, or become ill as a consequence of:
- performing their usual work duties on or off work premises;
- an incident arising out of their employment
- travelling to and from work (in very limited circumstances).
A workplace injury or illness may include physical or psychological injuries.
The State Insurance Regulatory Authority (SIRA) regulates and administers the workers compensation system in New South Wales. This is a no-fault scheme, providing injured workers with weekly benefits and access to medical assistance such as physiotherapy and rehabilitation and home care, whilst they recover.
Provided the injury is work-related, compensation is generally payable even if there is no fault on the part of the employer.
What is a work injury damages claim?
If the injury suffered is due to an employer’s negligence, or the negligence of another person in the employer’s control you may be entitled to pursue a work injury damages claim. These claims are sometimes referred to as modified common law damages claims and are made against the employer’s workers compensation insurer.
A work injury damages claim follows an initial workers compensation claim made with the no-fault statutory schemes established in each state.
A successful claim for work injury damages must show that the injury suffered was caused by negligence. This requires evidence that the employer or somebody else under the employer’s control was negligent and, because of that negligence, the injured worker suffered harm. An opinion and report from a qualified expert may be required to prove this.
The Workers Compensation Commission mediates all claims in New South Wales. If mediation fails to resolve the claim, proceedings can then be filed in Court.
What can be claimed?
A settlement or award for work injury damages is generally limited to past and future economic loss – this means loss of past wages and future earning capacity as well as future superannuation.
Claimants therefore need to establish that, because of the injury, they have been incapacitated to the extent that they can no longer earn the same rate as they would have in their pre-injury employment.
Making a work injury damages claim in New South Wales
To bring a claim for work injury damages the injured worker must have sustained a whole person impairment of at least 15%.
The injured worker is assessed by a medical assessor with qualifications and experience relevant to the injury and body part under assessment. Before this assessment can be made, the worker’s injuries must have stabilised and reached maximum medical improvement.
The claim is made at the same time or after resolution of a lump sum claim for permanent impairment. In other words, the injured worker will have exhausted all entitlements under the statutory workers compensation scheme. A permanent impairment is an injury that cannot be completely cured and continues to cause pain and / or restriction
The claim may not be commenced until six months after notification of the injury on the employer and must be made no later than three years after the date of injury.
What happens if the work injury damages claim is successful?
A successful work injury damages settlement or Court judgment results in a lump sum payment and will extinguish any further entitlements to workers compensation benefits. This includes weekly payments, medical, hospital and rehabilitation expenses. Consequently, it is very important to consider all future losses and any likely future health treatment needs or care requirements when pursuing and negotiating the claim.
The amount of damages awarded may be reduced if there is some contributory negligence.
If you have been injured at work, it is important that you are able to access the maximum compensation payments available to assist in your recovery.
Workers compensation law is complex, and timing is critical when pursuing a work injury damages claim. Before making such a claim, you should consider the likely success of your case, the range of compensation that may be awarded, and the effect on any entitlements already received. An experienced compensation lawyer can assist you in making an informed decision.