You may be entitled to claim common law damages if your injury resulted from your employer’s negligence.
Work injury damages are generally limited to payment of compensation for past and future loss of earnings.
It is important to note that work injury damages extinguishes all entitlements to weekly payments, medical, hospital and rehabilitation expenses.
Eligibility to claim work injury damages:
- The injury must be the result of employer’s negligence;
- You must have at least 15 per cent permanent impairment;
- The impairment assessed by a permanent impairment assessor must be accepted by the insurer;
- The impairment can alternatively be determined by the Workers Compensation Commission; and
- You have received all your lump sum entitlements for permanent impairment to which you are entitled; and
- You must lodge a claim for work injury damages in writing to the insurer.
Information required by the Insurer:
- details of your injury;
- your impairments;
- when the injury happened;
- any previous injury or condition;
- details of your employment;
- details of the alleged negligent acts of the employer;
- the economic loss claimed;
- report from a permanent impairment assessor; and
- any other supporting documentation;
What happens next:
- the permanent impairment must be agreed by all parties; or
- determined by an approved medical specialist; and
- all appeals exhausted;
- the insurer has one month to determine liability for your claim;
- the insurer requires more information from you, and
- they request the information from you within two weeks of receiving your claim.
Once the insurer has received the additional information:
- they have up to two months to determine liability; and
- if the liability is accepted, must make an offer of settlement; and
- if you do not agree with their offer of settlement, you can consider starting mediation or court proceedings.
- court proceedings must start no later than three years from the date of injury.
- failure to commence proceedings within this time will require the leave of the Court.
Before commencing proceedings:
- you must obtain legal advice and representation;
- prepare and serve a pre-filing statement setting out the particulars of the claim,
- set out the evidence you will rely on to establish or support your claim;
- refer the claim for mediation in the Workers Compensation Commission; where
- the Commission will attempt to mediate and reach settlement with all parties;
If an agreement cannot be reached, proceedings can be commenced in the District Court.
Legal advice and costs:
- If the matter settles at mediation or out of court, it will settle on an ‘inclusive of costs’ basis, which means that legal costs are deducted from your settlement amount.
- If the matter is determined by the Court and you are successful, you will have most of your legal fees paid by the insurer.
- If your work injury damages claim is unsuccessful, you may be liable for court costs incurred by the insurer.
Dealing with workers compensation insurers can be complex and difficult and we do not recommend that you attempt to deal with the insurer on your own. Also, strict time limits apply to making a Work Injury Damages claim. We are here to help you with any matter relating to your claim.
Disclaimer: This fact sheet provides general information and does not provide legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to a court.