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What is the difference between Workers Compensation and a Work Injury Damages Claim?

Workers Compensation Claim

If you have injured yourself during the course of your employment, you are entitled to make a claim on your employer’s workers compensation insurance. This is known as a Workers Compensation Claim.

Workers Compensation is a “no fault system” and negligence does not need to be proven to make a claim. Some available benefits include:

  • Weekly payments for loss of earnings based on the statutory rate of compensation
  • Medical expenses
  • Lump sum payment for a permanent injury which results in a whole person impairment (11% or more for a physical injury or 15% or more for a psychological injury)

A Workers Compensation Claim should be made as soon as practicable after a workplace accident.

Work Injury Damages Claim

There is also provision for you as an injured worker to prosecute a common law or negligence claim against your employer if it is found that:

  • The injury results in a whole person impairment of 15% or more; and
  • The injury was caused by the negligence of the employer.

These negligence claims are made under a “fault system” known as Work Injury Damages Claims.

This claim is distinct from a Workers Compensation Claim which is based on a “no fault system”.

The successful prosecution of a negligence claim would generally result in you receiving substantially more by way of damages than what is recoverable from the Workers Compensation Claim.

You are entitled to recover both past and future wage loss calculated by reference to your actual earnings, as opposed to the statutory rate of compensation which has been paid to you by the workers compensation insurer for periods of absence from work.  In addition, you are entitled to recover the tax paid on gross weekly benefits of compensation as well as for the loss of superannuation benefits to which you otherwise would have been entitled. 

A negligence claim must be brought within 3 years of the date of injury where possible and generally follows upon resolution of the lump sum payment from the Workers Compensation Claim.

A successful settlement of a negligence claim will cease any further ongoing entitlements arising from the Workers Compensation Claim.