In Australia, workers who suffer injuries at work are generally entitled to compensation under the statutory workers’ compensation scheme. However, in some cases, an injured worker may also have the right to pursue a common law claim if their injury was caused due to an employer’s negligence. A common law claim can provide significantly higher compensation than a standard statutory claim. This article explains common law claims for workers’ compensation in Australia, eligibility criteria, potential compensation, and how Brisbane workers compensation lawyers and WorkCover lawyers can assist in the process.

Understanding Common Law Claims in Workers Compensation

A common law claim is a legal action taken against an employer when an injured worker believes that their injury resulted from negligence. Unlike statutory workers’ compensation, which provides no-fault benefits, a common law claim requires the worker to prove fault on the part of the employer.

A successful common law claim can provide a worker with additional compensation for damages that are not covered by statutory benefits, such as pain and suffering, future economic loss, and loss of earning capacity.

Statutory vs. Common Law Workers Compensation Claims

Australia’s workers’ compensation system primarily provides two types of claims:

1. Statutory Claims – These are no-fault claims where an injured worker can receive benefits such as medical expenses, lost wages, and rehabilitation costs.
2. Common Law Claims – These claims allow workers to sue their employer for negligence and claim compensation for damages not covered under statutory claims.

While statutory claims provide financial support, they do not fully compensate workers for all losses. This is where a common law claim may be beneficial.

Eligibility for a Common Law Claim in Australia

To pursue a common law claim for workers’ compensation in Australia, an injured worker must meet the following criteria:

• Serious Injury Threshold: The worker must have suffered a serious injury. Each state has different thresholds to determine what qualifies as a serious injury.
• Negligence of Employer: The worker must prove that the employer failed in their duty of care, resulting in the injury.
• Time Limits: A claim must be filed within a specific time frame, usually within three years from the date of the injury.

Each state and territory in Australia has its own workers’ compensation laws, which may have different thresholds and requirements.

Process of Filing a Common Law Claim

1. Reporting the Injury and Seeking Medical Treatment

As with any workers’ compensation case, the first step is to report the injury to your employer and seek medical attention. Proper medical documentation is essential for both statutory and common law claims.

2. Lodging a Statutory Claim

Before a common law claim can be pursued, an injured worker must lodge a statutory workers’ compensation claim. This allows the worker to receive immediate financial support for medical expenses and lost wages.

3. Obtaining an Impairment Assessment

An independent medical examiner will assess the worker’s condition to determine the degree of impairment. In Queensland, for example, a worker must have at least a 5% whole person impairment (WPI) to pursue a common law claim.

4. Establishing Employer Negligence

To proceed with a common law claim, the worker must demonstrate that the employer breached their duty of care. This can include failing to:

• Provide a safe work environment
• Offer proper training and supervision
• Supply necessary protective equipment
• Implement safety policies and procedures

5. Engaging Brisbane Workers Compensation Lawyers

Given the complexity of common law claims, seeking legal representation from Brisbane workers compensation lawyers and WorkCover lawyers can significantly improve the chances of success. A lawyer will gather evidence, negotiate with insurers, and represent the worker in court if necessary.

6. Negotiating a Settlement or Proceeding to Court

Most common law claims are resolved through negotiations with the employer’s insurance company. However, if a fair settlement is not reached, the case may proceed to court.

Types of Compensation in a Common Law Claim

A successful common law claim can result in higher compensation compared to statutory benefits. Compensation may include:

• General Damages: Compensation for pain and suffering.
• Economic Loss: Loss of past and future earnings due to the injury.
• Medical and Rehabilitation Costs: Covering ongoing medical expenses.
• Care and Assistance: Compensation for required home and personal care.

Unlike statutory claims, common law claims often result in lump sum payments, which can provide greater financial security for injured workers.

Time Limits for Common Law Claims

Each state has different time limits for filing a common law claim. Generally, the claim must be lodged within three years of the injury. However, in some cases, extensions may be granted if the injury was not immediately apparent.

How WorkCover Lawyers Can Assist

Navigating a common law claim can be overwhelming, especially while recovering from an injury. WorkCover lawyers specialize in helping injured workers obtain the compensation they deserve. Their services include:

• Assessing the viability of a common law claim
• Gathering medical and workplace evidence
• Negotiating settlements with insurance companies
• Representing clients in court if required

Experienced WorkCover lawyers understand the intricacies of workers’ compensation laws and can ensure injured workers receive the best possible outcome.

Conclusion

A common law claim in Australia allows injured workers to seek compensation beyond statutory benefits if their employer was negligent. While statutory claims provide financial assistance, they may not fully cover all losses suffered due to a workplace injury. Pursuing a common law claim can provide additional compensation for pain and suffering, economic loss, and medical expenses.

If you believe your injury resulted from employer negligence, seeking advice from Brisbane workers compensation lawyers and WorkCover lawyers is crucial. Legal experts can guide you through the claims process, gather necessary evidence, and negotiate the best possible compensation for your case.

Understanding your rights and options can make a significant difference in securing the financial support needed for your recovery and future stability. If you or someone you know has suffered a workplace injury, consult with a professional workers’ compensation lawyer today to explore your common law claim options.