The workers compensation system in
The statutory scheme prescribed under the Workers’ Compensation & Rehabilitation Act 2003 (the WCRA) and the common law damages system as regulated by the WCRA.
The statutory scheme is a no fault system, and provided you are a ‘worker’ and have sustained an ‘injury’, you will have a statutory entitlement to benefits (wages, medicals, rehabilitation etc) subject to the exceptions set out for psychological claims and overseas workers.
In order for you to have any entitlement to seek common law damages, you must be able to prove that your employer was negligently responsible for causing your personal injury.
A common law damages claim can only be accessed by rejecting a lump sum offer for an injury of less than 20% WRI (work-related impairment), but if assessed at 20% WRI or above you can accept the lump sum and in addition sue your employer for damages.
Damages in a common law claim is an ‘injured workers only’ means of obtaining appropriate compensation which will go any way towards compensating for your loss.
Unlike the statutory scheme, a damages claim is aimed at compensating you for the losses sustained as a consequence of your work related injury. A court will consider these losses in terms of various heads of damages, including:
(a) Pain and suffering;
(b) Out of pocket expenses;
(c) Loss of wages;
(d) Loss of superannuation contributions;
(e) Assistance provided free of charge;
(f) Future assistance or commercial paid assistance;
(g) Future medical/rehabilitation expenses;
(h) Future loss of wages;
(i) Future loss of superannuation contributions.
An assessment of your claim requires a detailed consideration of all of these heads of damage.
A detailed review of the circumstances of your injury is also necessary.
You have no right to claim damages unless you can prove that your injury/ies resulted from the negligent conduct of your employer.
It is very important to seek advice in relation to these matters prior to making any decision about your lump sum offer from WorkCover
OMC