Work injury damages

What work injury damages are

The workers compensation legislation in NSW allows workers with a work-related injury to claim work injury damages.

In NSW, most workers with a work-related injury can only claim work injury damages for past loss of earnings and future loss of earning capacity. This type of compensation is often referred to as modified common law damages.

A work injury damages settlement removes all further entitlements to workers compensation payments (including weekly payments, and medical, hospital, and rehabilitation expenses) associated with that injury. The amount of weekly payments that have already been paid to the worker may have to be repaid out of the settlement amount. The amount of damages payable can also be reduced if the worker's own negligence contributed to the injury.

Eligibility

To claim work injury damages:

• the work injury must result from employer negligence
• you must have at least 15% permanent impairment (assessed by a permanent impairment assessor with qualifications, training and experience relevant to the body system being assessed), and this assessment must be accepted by the insurer or determined by the Personal Injury Commission
• you have received all statutory lump sum payments for permanent impairment to which you are entitled before a work injury damages claim can be settled.

Some work injury damages claims may result in court proceedings. Court proceedings for work injury damages must begin within 3 years of the injury date unless you have the court’s approval.

Lodgement process

To claim for work injury damages, write to the insurer and provide the following information:

• details of the injury and any impairments arising from it
• when the injury happened
• any previous injury or condition that has caused or may have caused part of an impairment (including any related compensation)
• previous employment which may have caused the injury
• alleged negligent acts of the employer and any supporting documentation
• the economic loss being claimed as damages and any supporting documentation
• information about whether the degree of permanent impairment resulting from the injury will change and any supporting documentation.

A report from a permanent impairment assessor must be included in your claim. Learn more about what the report should contain.

Once the permanent impairment has been agreed by all parties, or determined by an approved medical specialist, and no further appeals have been made, the insurer has one month to determine liability for your claim. If the insurer requires more information, they must notify you within 2 weeks of receiving your claim and explain what they need to make a liability decision. Once the insurer receives the additional information, they may take up to 2 months to determine liability.

If the insurer accepts liability, they must make a settlement offer that sets out the amount of damages or a way to determine this amount. If you do not agree with their offer, you may consider starting mediation or court proceedings. Court proceedings must start no later than 3 years from the date of injury.

Before starting mediation or court proceedings for work injury damages, you must serve a pre-filing statement setting out the particulars of the claim and the evidence you will rely on to establish or support the claim on your employer or the insurer. In most cases, the claim must be referred for mediation in the Personal Injury Commission before starting court proceedings.

The Personal Injury Commission will attempt to mediate and reach a settlement through discussion with all parties. If an agreement cannot be reached, work injury damages claims are most commonly heard in the Courts.

Legal advice and costs

You should seek independent legal advice before beginning a work injury damages claim.

If you are unsure how to locate a suitable legal representative, you can contact:

• the Law Society, or
• the Independent Review Office (IRO), which has a list of approved legal providers.

It’s common for work injury damages matters to settle 'inclusive of costs', meaning that legal costs are deducted from your settlement amount.

The Workers Compensation Regulation 2016 outlines how much a solicitor can charge for representing you in a work injury damages claim. However, your solicitor may ask you to enter into a separate costs agreement which may entitle them to charge more than the regulated costs under the Regulation. If you are uncertain about what to do, seek the advice of the Law Society of New South Wales.

Disputes

If a dispute arises, our workers compensation disputes section has more information on how we can help.