Many employees carry out their work completely unaware of workers compensation schemes and the legal rights available to them. When an employee is injured at work, they may be faced with 2 separate opportunities for compensation which can lead to some confusion. These separate types of compensation are workers compensation and work injury damages.
Workers compensation and work injury damages are not the same thing. Let’s take a look at each concept and what they mean for the injured worker.
Workers Compensation
Workers compensation provides statutory entitlements and is available to all employees who sustain an injury at work or develop a work-related disease. Compensation is generally provided to injured workers regardless of fault. Workers compensation benefits are usually paid for a limited period depending on the extent of workers incapacity or permanent impairment. Workers compensation benefits are payable to a worker from time to time as the liability is incurred.
Workers compensation benefits include:
- Weekly payments to cover loss of wages during the period the worker is totally or partially incapacitated for work. Weekly payments are ordinarily payable at a percentage of the workers preinjury average weekly earnings for up to 130 weeks. Weekly payments beyond 130 weeks depend on the worker's ongoing incapacity. Weekly payments beyond 260 weeks are payable only if the worker has suffered at least 21% permanent impairment.
- Medical, hospital and rehabilitation expenses incurred as a result of the injury. These payments are payable while the worker is receiving weekly payments and for at least 2 years after the date of injury. These expenses are payable for at least 5 years after weekly payments cease if the worker has suffered at least 11% permanent impairment. They are payable without any time limit if the worker has suffered at least 21% permanent impairment.
- Domestic assistance if the injured worker requires domestic assistance as a result of the injury. Ordinarily, the worker must have suffered at least 15% permanent impairment. Temporary assistance may be available if the permanent impairment is not yet certain for up to 3 months.
- New employment assistance payments if the injury means a worker needs to find new employment
- Education or training assistance payments if the injury means a worker must complete further training to return to work in a different field
- Lump sum payments are available for physical injuries if the worker is assessed as having suffered permanent impairment of at least 11 %. Lump-sum payments are available in relation to psychological injuries if the worker has suffered at least psychological injuries 15% permanent impairment.
An injured worker seeking workers compensation will need to inform their employer and insurer and submit necessary documentation in order to receive workers compensation. Ordinarily, all that is required is a WorkCover certificate of capacity certifying the worker incapacitated for work. There is no need to prove fault and in most cases the process is straightforward, and it will not be necessary to go to court.
Work Injury Damages
As opposed to workers compensation benefits, work injury damages are payable as a one-off lump-sum. If an employee is injured at work as a result of their employer’s negligence or breach of the employer's statutory duty, then the injured worker may be entitled to sue their employer for work injury damages. In New South Wales a worker can sue their employer in negligence or for breach of statutory duty only if the worker has sustained at least 15% permanent impairment.
It is important to note that an injured worker must apply for workers compensation before they claim work injury damages. If any work injury damages are paid or awarded, then no further workers compensation benefits can be claimed.
Unlike a workers compensation claim where entitlements cover things like medical expenses, domestic assistance and additional education, in addition to lost wages through weekly payments, a work injury damages claim can only provide for past and future economic loss. In a work injury damages claim the injured worker must prove that their injury has reduced their capacity to earn what they otherwise would have been able to earn, possibly up until workers compensation pension age.
What should you claim?
Regardless of fault, applying for workers compensation is the first place to start. Receiving workers compensation does not mean you are entitled to work injury damages, nor does it discount you from claiming work injury damages in the future.
It will be beneficial to speak with a legal professional who can advise the best course of action to ensure you are adequately provided for. At Taylor & Scott we can assist you with a workers compensation claim and investigate your individual case to determine if you are eligible for work injury damages.
If you or someone you know needs expert advice from our specialist team of lawyers, phone us on 1800 600 664 or email us at info@tayscott.com.au
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