In certain circumstances, an injured worker may sue for common law damages, known as a “work injury damages” claim in addition to the statutory payments available under the Workers Compensation Act 1987 and the Workers Injury Management and Workers Compensation Act 1998.
What are Work Injury Damages?
If your work injury has occurred, or been made worse, because of the negligence of your employer, you may be eligible for work injury damages. Negligence on the part of the employer might have occurred if your injury was caused by a co-worker, or because of an unsafe system of work, an unsafe workplace, or because of faulty machinery. If you are unsure whether your employer has been negligent or suspect they might have been, you should seek legal advice from one of our specialised Workers Compensation and Work Injury Damages lawyers as soon as possible.
I am on workers compensation benefits: can I claim for Work Injury Damages?
A Work Injury Damages claim can be made by an injured worker, in the following circumstances:
- If your injury is assessed as 15% Whole Person Impairment or more by an approved medical specialist or is agreed by the insurer;
- The existence and degree of negligence by another party; and
- The injury occurred in NSW. In some circumstances an injury that occurred interstate or overseas may be covered.
What about my legal costs?
As accidents leave injured workers in precarious financial situations, we offer to act for you on a ‘conditional fees’ basis, meaning we will not charge you our professional fees unless you obtain a successful outcome. Disbursements including any medico-legal reports are generally payable as incurred or can by agreement be deferred until the conclusion of the matter.
Time limits for bringing a claim
There are strict time limits for bringing a claim:
- Proceedings must typically start within three years of the date of your injury, unless you have Court approval (for example, you may have extenuating circumstances);
- However, as you must first receive your statutory lump sum whole permanent impairment compensation, generally leave is granted to bring a claim out of time, until your level of whole permanent impairment is agreed or assessed.
How do I bring a claim for Work Injury Damages?
After making a claim to your insurer, a Pre-Filing Statement must be served along with all evidence the worker intends to rely including relevant witness statements, expert reports and medical evidence. Usually, the claim will then be referred for mediation facilitated by the Personal Injury Commission (PIC) before court proceedings can be commenced. If mediation is unsuccessful, an application may be brought to commence proceedings in the District Court.
Bringing a claim for Work Injury Damages is a complex process. It is important that you obtain legal advice to ensure all requirements are met for each stage of your claim.
What will happen to my Workers Compensation benefits?
After settlement in a work injury damages claim, you will no longer be entitled to workers compensation benefits, including weekly payments and medical, rehabilitation and/or hospital expenses.
The amount of weekly payments that has already been paid to you may also have to be repaid out of your settlement amount. Further, the amount of damages you are entitled to may also be reduced if it is shown that your own negligence contributed to your injury.
If your work injury damages claim is unsuccessful, you will continue to receive your workers compensation benefits, but you may be liable to cover the other sides court costs incurred during the work injury damages claim.
It is very important to get legal advice as soon as possible if you think your injury or illness was caused by negligence as strict time limits apply. Get in contact with our workers compensation lawyers today.
Contact Amanda Robinson or Tom Hunter-Leahy today for a no obligation consultation to discuss your potential Work Injury Damages claim.
