Injured workers may sue for modified common law damages in certain circumstances. These are known as “work injury damages” claims.
Damages is the term used to describe a sum of money that may be awarded “to compensate for the loss, harm or injury suffered”.
In New South Wales most workers are limited to claiming past loss of earnings and future loss of earning capacity only and that is why they are referred to as modified damages.
Claim for work injury damages
To claim work injury damages, the following criteria must be met:
- the work injury must be the result of the negligence
- the injured worker must have at least 15 per cent permanent impairment as assessed by a specialist trained in the use of the WorkCover Evaluation of permanent impairment guidelines and this has been accepted by the insurer or determined by the Workers Compensation Commission
- court proceedings can only be started at least six months after the injury is reported to the employer
- proceedings must start within three years of the date of injury, unless the worker has leave of the Court, and
- the worker must have received all statutory lump sum entitlements for permanent impairment to which they are entitled before a work injury damages claim can be settled
A work injury damages settlement cancels all further entitlements to workers compensation benefits including weekly payments, medical, hospital and rehabilitation expenses in respect of that injury.
The amount of weekly compensation that has already been paid to the worker must be repaid out of the settlement amount agreed or awarded. The amount of damages can also be reduced if the worker’s own negligence contributed to the injury.
Process for a work injury damages claim
Before you can start mediation or court proceedings for work injury damages, you must serve a pre-filing statement setting out the particulars of the claim and the evidence you will rely on to establish or support the claim on your employer or the insurer.
In most cases, the claim must be referred for mediation in the Workers Compensation Commission (WCC) before starting court proceedings.
The WCC attempts to mediate and reach settlement through discussion with all parties. If an agreement cannot be reached, work injury damages claims are most commonly heard in the District Court.
If a work injury damages claim is not successful, you can continue to receive workers compensation under the statutory scheme, but you are likely to be liable for court costs incurred during the work injury damages claim.
Dependants, or where there are no dependants, the estate, of a worker who dies on or after 24 October 2007 as a result of a workplace injury that occurred on or after 30 June 1987, are entitled to:
- a lump sum
- weekly payments for each dependant child
- reasonable funeral expenses
Funeral expenses are limited to a maximum amount of $9,000 and can include the:
- funeral director’s professional fees
- cost of the funeral service (including cremation or burial)
- mourning car
- cemetery site
- newspaper notice
- death certificate
A dependant child can be a child or step child of a worker who was wholly or partially dependent for support on on them at the time of the worker’s death. A dependant child may be entitled to weekly payments of support until they reach the age of 16 or, if they remain a student, until the age of 21.