If an injured worker has suffered a serious injury as a result of their employer’s negligence then they may be entitled to sue their employer for modified common law damages – known as a Work Injury Damages claim.
A Work Injury Damages (“WID”) claim enables an injured worker to receive lump sum compensation for the past and future economic loss suffered because of their work-related injury if that injury was caused wholly or partially by the negligence of their employer.
It is important to note that a Work Injury Damages settlement extinguishes all future entitlements to workers compensation benefits associated with the work-related injury including:
- Weekly wage payments
- Medical and hospital related treatment
- Rehabilitation expenses
Eligibility
Not all injured workers in NSW are eligible to pursue a Work Injury Damages claim. A Work Injury Damages claim is only available to those workers who:
- Have a whole person impairment of 15% or greater, as assessed by a suitably qualified medical assessor, which is either accepted by the insurer or determined by the Personal Injury Commission.
- Have received their statutory lump sum payment/s for permanent impairment.
- Have suffered a work-related injury caused or contributed to by the employer’s negligence.
A Work Injury Damages claim must be commenced within three (3) years of the date of injury. If the claim is not commenced within the three-year time limitation, the injured worker will need the permission of the Court to commence the claim.
Making a Claim
We strongly encourage workers to speak with an experienced NSW workers’ compensation lawyer if they wish to lodge a Work Injury Damages claim to seek advice about the process and prospects of succeeding in the claim.
The key information and documentation required for a Work Injury Damages claim can include:
- Details of the injury, how it was caused, and any secondary conditions the injury has caused.
- The degree of whole person impairment caused by the injury.
- What alleged negligent acts of the employer that caused or contributed to the injury.
- Any medical reports that address how the injury has affected in the past and will continue to affect in the future, the workers’ capacity for employment.
- Evidence of the economic being claimed such as pay-slips, employment contracts, letters of offer, etc.
After a Work Injury Damages claim is served on an insurer, the insurer has one month to determine liability for the claim or two weeks to request more information (if required). At this stage, it is not uncommon for an insurer to arrange one or more independent medical examinations for the worker to attend. Once the additional information and independent medical examination report/s are returned to the insurer, the insurer must determine the claim and provide a liability decision within two (2) months.
If the insurer accepts liability then they must make an offer of settlement. If the insurer disputes liability then a worker will need to apply to the Personal Injury Commission or commence proceedings in Court.
