THE PROCESS OF A WORK INJURY DAMAGES CLAIM
Once your Lawyer is satisfied you have obtained 15% whole person impairment (WPI) and can demonstrate negligence (the two limbed test for Work Injury Damages set out in ‘Work Injury Damages Explained Part 1’) your Lawyer will make a claim against your employer. Your Lawyer will also send a copy of this claim to the workers compensation insurer.
The workers compensation insurer is responsible for payment of any compensation (money) not the employer as the employer is covered for your claim by workers compensation.
The insurer takes over conduct of the claim and acts on behalf of your employer.
The insurer is then required to decide if they will accept or decline your claim. The insurer will almost always decline a claim for Work Injury Damages on the basis that the employer was not negligent.
WHAT HAPPENS IF THE INSURER CONTINUES TO DISPUTE MY CLAIM?
If your employer declines liability your lawyer will need to prepare a statement detailing your claim, your injuries, your financial loss, and other evidence required to prove your employer was negligent. This statement will also include the amount of compensation you should receive.
This is known as a Pre- Filing Statement.
The insurer replies with a Pre-Filing Defence which sets out the insurer’s evidence and reasons why the claim has been declined.
WHAT HAPPENS ONCE THE PRE-FILING DOCUMENTS HAVE BEEN SUPPLIED?
Your claim will then be referred to the Workers Compensation Commission, an independent tribunal who will arrange for Mediation of the dispute.
Mediation is an attempt to reach agreement with the insurer and settle the claim. Usually around 70% of Work Injury Damages matters resolve at Mediation. If you can reach an agreement the lump sum amount for damages is usually paid within 6-8 weeks.
Any ongoing Workers Compensation benefits such as weekly payments or medical expenses will be stopped when the Work Injury Damages payment is made. Once your claim is finalised you cannot return for any further compensation.
If no agreement is reached at Mediation your case will go to the District Court and be heard and determined by a Judge. Going to court can be risky as if you lose your claim you may be ordered to pay the insurers legal costs.
You should always seek the advice of an experienced accredited specialist in personal injury law when claiming Work Injury Damages.
GARLING AND CO 2016