WHAT ARE ‘DAMAGES’?
Work Injury Damages refers to the amount of money a worker can claim as compensation for injuries sustained as a direct result of their employers negligence.
An employer can be found negligent if they have breached their duty to their employee’s to provide a reasonably safe workplace whilst at work.
Work Injury Damages are a modified entitlement to common law damages regulated by the Workers Compensation Act NSW 1987.
Work injury damages are a once off lump sum compensation payment. The lump sum amount is payable for loss of income only. Damages also include a superannuation amount between 11% - 13% depending on the years until retirement. The injured worker is not entitled to receive damages for pain and suffering, for past or future medical expenses or care and assistance through a work injury damages claim.
A Work Injury Damages claim must be made within 3 years from the date of accident however a Court may grant leave to proceed after 3 years if there is a satisfactory explanation for the delay.
TWO LIMBED TEST FOR WORK INJURY DAMAGES
To claim work injury damages an injured worker must first satisfy the two limbed test for damages:
- Firstly, an injured worker must be able to prove through evidence that their employer was negligent, and that such negligence caused the worker to
- Secondly, the injured worker will need to get a whole person impairment score equal to, or greater than 15%. An assessment of whole person impairment is conducted by a Doctor who will assess the injuries based on WorkCover guidelines used for the purpose of assessing impairment.
HOW DO I PROVE MY EMPLOYER WAS NEGLIGENT?
You will need to prove through evidence that the employer was negligent. That negligence must also be a direct cause of your injury. Your lawyer will assist in obtaining the necessary evidence. For example, if your employer fails to provide a safe work place and your employer knew, or ought to have known about hazards in the workplace but decided not to act it is likely that you will be able to establish that your employer was negligence.
WHY DO I NEED TO HAVE 15% WHOLE PERSON IMPAIRMENT?
The 15% whole person impairment test is in place to stop workers who have experienced minor injuries from suing their employer.
A whole person impairment score of over 15% establishes that you have, and will continue to experience serious impairment.
It is an arbitrary threshold imposed by the Workers compensation Act and many people may only receive say a 12% WPI who have a significant injury however they will be unable to pursue a claim for Work Injury Damages as the WPI is not 15% or more.
If you have been assessed as having a 15% WPI and can demonstrate that your employer was negligent then you are entitled to claim Work Injury Damages. Such damages are only payable in respect of loss of income and loss of superannuation for the past and into the future.
GARLING AND CO 2016