How does Worker’s Compensation Litigation differ from other types of litigation?

Workers’ Compensation Claim

September 19, 2016


The content of this website is provided on the basis that it is general information only. The content of the website does not in any way constitute legal advice and should not be used as such. Formal legal advice should always be obtained. Whilst the information contained in this website has been formulated with due care, we do not accept any liability to any person for the information (or the use of such information) which is provided on this website or incorporated into it by reference. The information on this website is provided on the basis that anyone accessing the site undertake responsibility for assessing the relevance and accuracy of its content.

In New South Wales, a statutory scheme exists to ensure that people who are injured at work are able to receive compensation for their injuries. This requires all employers to insure their workers against accidental injuries in the workplace with a central insurer.

For this reason, workers compensation litigation is significantly different to normal personal injury or commercial litigation. Making a claim can be complex and in some cases expert advice may be required in order to succeed.


What’s Unique About Workers’ Compensation Litigation?


Complex Procedural Requirements

The NSW statutory Workers Compensation scheme provides specific procedures that applicants must follow if they wish to make a workers compensation claim.

All workers are generally eligible to make a ‘statutory claim’ which is a ‘no fault’ scheme that entitles you to weekly payment of your wages and medical expenses if you are injured at work.

However entitlement to claim a lump sum payment or to bring a common law action against your employer will depend on your level of impairment resulting from the injury as assessed by an expert and whether you can prove that your injury in fact resulted from your employer’s negligence.


Strict Limitation Periods

The scheme prescribes strict time limits for making a claim. Statutory and common law claims must generally be made within 3 years of the accident or injury.

Strict timeframes are also prescribed for procedural requirements such as filing of forms, attendance at medical assessments and compulsory mediation before certain claims may be made. Failure to comply with these deadlines may jeopardise your claim.


Medical Assessments And Evidence is Required

In order to assess whether your injury has stabilised and determine the appropriate amount of compensation owing to you, your employer’s insurer will require you to undergo medical assessments. In certain circumstances it may be in your interests to obtain an independent examination from your own medical expert as well.

Insurers may also try to obtain evidence of your medical condition by hiring private investigators to obtain surveillance footage of you. This can be used against you in court.


Determining Liability Can Be Complicated

Determining whether your employer is responsible for your injuries is a complex question of law which must be determined based on relevant legislation, case law and the evidence at hand. Insurers have teams of lawyers working for them to minimise the compensation they are required to pay to you. Therefore it is highly advisable for claimants to seek an experienced lawyer to handle their case to get the best result possible.


Calculating What You Are Entitled to is Complex

Depending on the type of claim you make, you may be entitled to a number of different types of compensation. This may include reimbursement for medical and hospital bills, lost wages, travel expenses, rehabilitation and return to work services as well as compensation for permanent impairment and future income loss.

Legislation prescribes amounts for certain heads of damage which are calculated off a sliding scale. Other heads of damage are calculated by adding up your out of pocket expenses.

A thorough knowledge of damages calculation is required to maximise the compensation you can recover.


Do I Need A Lawyer to Make a Workers Compensation Claim?

If your workplace injury is minor and unlikely to result in any permanent impairment, it’s probably okay to file a statutory claim by yourself.

However, if your injury is serious enough to cause permanent damage and is likely to impact your income earning ability in the future, speak with a worker compensation lawyer about your options as soon as possible.

They can ensure you comply with all the deadlines, build a strong case, and get the maximum compensation you are entitled to.

Contact us to discuss your situation now.