If you lose income, (past and future) as a result of a workplace injury, you may lodge a claim for modified common law damages. Also known as a “work injury damages” claim, it may provide compensation for your loss of income.
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, therefore they are referred to as modified damages.
claim for work injury damages
To claim work injury damages, you need to meet the following criteria:
- your work injury must be the result of the negligence of your employer
- you must have at least 15 per cent permanent impairment as assessed by a permenant impairement assessor.
- at least six months have passed since the injury was reported to your employer, as Court proceedings can only start then
- proceedings must start within three years of the date of injury, unless the worker has leave of the Court, and
- you must have received all statutory lump sum entitlements for permanent impairment to which you are entitled before a work injury damages claim can be settled.
Things to remember:
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 already paid to you must be paid back from the settlement amount agreed or awarded. The amount of damages can also be reduced if your own negligence contributed to the injury.
It is common for work injury damages matters to settle 'inclusive of costs'. In practical terms, this means that if you enter into an individual costs agreement with your solicitor (most work injury damages matters in NSW do proceed on this basis), then these legal costs are deducted from your settlement amount.
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 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’re likely to be liable for court costs incurred during the work injury damages claim.
If you think you may be eligible to lodge a work injury damages claim and would like to proceed, you should first seek independent legal advice.
If you’re unsure of how to locate a suitable legal representative, you can contact:
- the Law Society, or
- the Workers Compensation Independent Review Officer which has a list of approved legal service providers.
workers compensation independent review officer
If at any stage you’re dissatisfied with the management of your injury, you can contact the Workers Compensation Independent Review Officer (WIRO) on 13 94 76.
The Workers Compensation Independent Review Officer fact sheet contains general information about workers compensation entitlements and procedures. This fact sheet is not a detailed explanation of the law as it applies to claims made by individual workers.