Work Injury

If you are doing your job and suffer an “injury” as that term is defined in the WCRA then you are entitled to receive workers’ compensation benefits.

They are also payable for injuries suffered on the way to or from work i.e. “journey claims”.

Claims for these no fault statutory benefits are to be made within six (6) months of the date of injury subject to certain exceptions. Claims for damages based on the fault of the employer are called “common law claims” and are to be made within three (3) years of the date of the injury.

The workers’ compensation benefits payable include weekly benefits for loss of income, the payment of medical expenses and travel thereto and, at the end of the claim, lump sum compensation. Other amounts including claims for pain and suffering and future losses are claimed in subsequent claims for damages based on the fault of the employer (called “common law claims”).

Once the injury is considered “stable and stationary” (which essentially means that further medical or surgical treatment is not required) an assessment will be made of the work related impairment (“WRI”) arising from the injury, whereby a percentage value is given to your injury or injuries in accordance with the WCRA. For injuries from 15 October 2013 WRI is now called degree of permanent impairment (“DPI”). The legislation provides a process for the impairment to be reassessed if the injured person does not agree with it in the first instance.

If there is a WRI/DPI, an offer of a lump sum will be made by WorkCover.

If the WRI/DPI is assessed at less than 20% then you must either accept the lump sum or proceed with what is known as a “common law” claim for damages as you cannot do both. If you are assessed as having a WRI/DPI of 20% or more you can both accept the lump sum and make a common law claim.

For injuries prior to 15 October 2013 and on and from 31 January 2015 there is no threshold WRI requirement in order to make a common law claim.

For injuries from 15 October 2013 up to and including 30 January 2015 you must have a DPI greater than 5% to make a common law claim.

The damages (compensation) payable in successful common law claims greatly exceed the lump sum offer.

A common law claim is made against the employer through WorkCover based on your employer breaching their duty of care owed to you and/or your employer’s breach of your employment contract.

Your employer has a duty to take reasonable care to avoid the unnecessary risk of injury to you. This duty exists both at common law as part of the law of negligence and it is also an implied term of the contract of employment between your employer and yourself (whether or not there is a written contract of employment). Your common law claim is based on the breach of this duty of care or breach of contract or both.

Provided you meet the necessary requirements under the WCRA common law claims are commenced by you giving a Notice of Claim for Damages in the form approved under the WCRA (“NOC”) to WorkCover (with a copy to the employer). WorkCover conducts the claim on behalf your employer and pays the damages.

WorkCover must respond to the NOC within ten (10) days essentially advising whether it agrees that the NOC is compliant or what its requirements are to make it compliant.

WorkCover and you are required to disclose documents and provide information to each other under the WCRA.

Within six (6) months of receiving a compliant NOC, WorkCover must provide a notice advising whether liability is admitted and whether contributory negligence is alleged.

12 months from the date of injury you are examined by a specialist or specialists and medico legal reports obtained. If you have suffered a serious head injury the assessment will not take place until 24 months have elapsed. WorkCover may also have you examined by a specialist or specialists to be chosen from a panel of three (3) specialists for each specialty.

Once these steps have been taken the parties proceed to a settlement conference called a Compulsory Conference. At the Conference the parties come together to attempt to settle the claim. If the claim does not settle at the Conference both parties must exchange formal written offers of settlement (called “mandatory final offers” or “MFO”s) which are open for 14 days from the date of the Conference. If neither MFO is accepted then you may then commence Court proceedings within 60 days of the date of the Conference. The MFO’s are used to determinewhether or not legal costs will be recoverable after judgment if the claim proceeds to trial.

In personal injury claims it is necessary for your injuries to have been assessed by medico legal specialists prior to our providing you with an assessment of your likely damages. In the usual course the assessment of physical injuries will occur approximately twelve (12) months after the date you suffered injury and in the situation where you have suffered a serious head injury these assessments will likely take place approximately two (2) years after the accident. In our view it is not appropriate to attempt to assess your damages prior to that time.

After the pre court proceedings have been completed the Court process begins. Your claim is then also governed by the Uniform Civil Procedure Rules 1999 (“the UCPR”).

The Court process commences by filing a Claim and Statement of Claim in the State Court with the relevant monetary jurisdiction, which are as follows:-

Magistrates Court – up to $150,000.00
District Court – up to $750,000.00
Supreme Court – Unlimited jurisdiction

Together with the Claim and Statement of Claim a copy of your Mandatory Final Offer will be filed in a sealed envelope and held by the Court until after judgment.

Within 28 days of the date of service of the Claim and Statement of Claim WorkCover has to file a Notice of Intention to Defend and Defence setting out its defence of the claim.

Within 14 days of receiving the Notice of Intention to Defend and Defence you file a Reply, if required, in answer to the Defence.

14 days after the Defence is served or when the Reply is served pleadings close.

Within 28 days of the close of pleadings the parties are to exchange Lists of Documents listing the documents which are disclosable under the UCPR. There are usually few surprises at this stage all of the relevant documents will have been disclosed during the pre Court proceedings.

Also within 28 days of the close of pleadings you are required to serve a Statement of Loss and Damage. Within 28 days after that WorkCover must serve a Statement of Expert and Economic Evidence which is a document detailing the expert and economic evidence it intends to rely upon at Trial.

Once these final Court documents have been exchanged it is not uncommon for the parties to again attempt to settle the claim whether by offers of settlement or by way of Mediation. If all attempts to settle the claim have not succeeded by that stage a Request for Trial Date will be submitted to WorkCover and a Court date set.

More than 95% of these claims settle prior to trial. A claim may settle any time up until Judgment is given.

No. Personal injury compensation payments are not subject to taxation. The earnings you subsequently make from those payments are subject to taxation as income (eg bank interest).

Provided you meet the requirements to claim against your employer under the WCRA, you may claim against one or the other or both.

The Limitation Period for personal injury claims is generally 3 years from the date of the injury.

If you are under 18 years of age when injured the three year limitation period does not start until your 18th birthday and you have until your 21st birthday to commence proceedings.

Where a person is under a legal disability (eg due to serious head injury) then the limitation period does not commence until that legal disability is lifted.

The Limitation Period can be extended where you become aware of a “material fact of a decisive character relating to the right of action” within the last 12 months in certain circumstances.

The limitation period must be considered in the context of the legislation relating to the particular claim.