Many injured workers may be on, or have previously been on, workers compensation. Eventually the workers’ compensation scheme cuts off benefits to these injured workers. Often attempts are made to help the injured worker return to their pre-injury duties.
But what happens when an injured worker cannot return to their pre-injury occupation? What happens when the injured worker returns to work, but has ongoing problems, pain and discomfort?
This is when the injured worker may have a legal right to make a common law workers compensation claim for personal injuries. This article is not intended as legal advice or a comprehensive guide to common law workers compensation claims. It merely provides a basic overview.
Common law workers compensation claims
There are really 2 elements to bringing a successful common law workers compensation claim:
- Negligence; and
- Damages or compensation.
But, basically, the key to a common law workers compensation claim for a workplace accident is to show that the employer has been legally negligent. For example, they did not have in place a safe system of work or failed to maintain machinery which caused an accident and so on.
Damages is compensation for various “heads of damages”, for example, out of pocket expenses, future medical expenses, potential future loss of wages and many other items. The aim is to put the injured worker back in the position they would have been if the injury did not occur, at least as best as money can do that.
How to start a common law workers compensation claim?
Short answer, it is best to get legal advice as soon as possible.
The workers compensation common law claim is generally started by serving on WorkCover or a self-insurer (if the workplace is self-insured) a Notice of Claim for Damages.
There are restrictions as to when an injured worker can lodge such a Notice. There are also limitation periods, the most important of which is the 3-year limitation. An injured person must lodge a Notice of Claim for Damages and have that Notice complied (or accepted) by WorkCover or self-insurer within 3 years of the injury, otherwise they will lose their legal right to claim compensation.
This article is not intended to give advice about the law of negligence and how to calculate damages, they are themselves separate articles.