Injured workers may sue their employers for modified common law damages where they have been injured as a result of the employer’s negligence. This is known as a “work injury damages” claim. 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.
To claim work injury damages, the following criteria must be met:
- the work injury must be the result of the negligence of an employer;
- 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.
Please contact our offices if you would like assistance with a work injury damages claim.