Difference Between Workers’ Compensation Claims and Common Law Claims

Suffering a workplace injury can be a devastating experience for you and your family. Injured workers in Western Australia can seek compensation by making a workers’ compensation claim or a common law claim seeking damages. These are two separate processes with differing requirements, benefits, and outcomes however they do overlap somewhat. It can be difficult to determine which option is available for your situation. In this post, we break down the key differences between workers’ compensation and common law claims, helping you make an informed decision on your path to recovery.

Workers’ compensation claims and common law claims are two types of compensation available to injured workers. Workers’ compensation claims aim to provide immediate benefits to injured workers whether there was negligence on the part of the employer or not. Whereas common law claims require injured workers to prove that their employer or another party owed them a duty of care and breached it causing damage/injury.

What is workers’ compensation and how does it work in Western Australia?

Workers’ compensation is a type of insurance that compensates employees who become injured or ill due to their work. In Western Australia, the workers’ compensation system is governed by the Workers’ Compensation and Injury Management Act 1981. This act outlines the rules and regulations that employers and employees must follow. The system is designed to provide quick and easy access (which doesn’t always happen) to compensation for lost wages and medical expenses. It covers a wide range of work-related injuries and illnesses.

To receive workers’ compensation benefits in WA, employees should report their injury to their employer as soon as possible and submit a claim to their employer with a first certificate of capacity and the employer should submit that claim to their workers’ compensation insurer within 5 days. The insurer will investigate the claim and determine whether the employee is eligible for benefits and is required to provide a notice of their initial decision within 14 days of them receiving it. Once a claim is accepted you may be eligible for payment of medical expenses, wage replacement payments, and rehabilitation services. There are strict requirements for submitting and appealing workers’ compensation claims. The guidance of a workers’ compensation lawyer can help injured workers understand their rights and obligations under the system. 

What is a common law claim, and when is it appropriate to pursue one in WA?

A common law claim is a type of legal action that injured workers can seek if they believe their employer or another party were negligent causing them injury and damage/losses. Common law claims must be commenced within 3 years from the date of injury and are typically more complex and time-consuming than workers’ compensation claims. The injured worker needs to prove the employer or other party’s negligence or breach of duty of care has caused the loss. However, common law claims may also provide more significant compensation for any suffering and future economic losses.

In Western Australia, common law claims are governed by the Civil Liability Act 2002. This act contains some of the legal requirements for proving negligence and determining damages. The Limitations Act sets out the time limits that apply for personal injuries which is a strict 3 years from the date of injury. However, before pursuing a common law claim against their employer, injured workers must first obtain an AMS assessment certifying them as 15% Whole Person Impaired (‘WPI’ – or higher), that WPI be recorded at WorkCover WA and then a Notice of Election also lodged before any action can be commenced in the courts. This assessment process does not apply if a third party is responsible for the injury. Legal advice should be sought so that your claim can be investigated.

What are the key differences between workers’ compensation and common law claims?

Workers’ compensation and common law claims differ in benefits available, filing timeline, costs, and the proof required.

Benefits Available

The workers’ compensation process is designed to be faster, getting you immediate compensation, but the benefits are limited. These benefits only include medical expenses, wage replacement, and some vocational rehabilitation and the amounts available over the life of a claim are not substantial. On the other hand common law claims may take longer to resolve, be far more costly and come with some risk, but they can provide access to compensation for your full losses (such as loss of enjoyment of life, pain and suffering etc).

Timeframe for Filing and Appealing Claims

In terms of timelines, workers’ compensation claims should be submitted within 12 months but there is no bar on doing it much later at the moment. There are good options for appealing decisions made by the insurer in a fairly straightforward process that generally does not require an injured worker to pay the costs of the insurers when they lose. Common law claims must be commenced within 3 years from the date of injury and typically tend to have a much longer timeframe, if you lose you will be required to pay the Defendants legal costs. Decisions from the courts can be appealed if there has been an error in applying the law.

Burden of Proof

Another key difference between workers’ compensation and common law claims is the burden of proof required for compensation. In workers’ compensation claims, the injured worker doesn’t need to prove fault for their injury or illness, only that the work duties caused or contributed to the injury. However, in common law claims the injured worker must prove that the employer was negligent and/or breached a duty of care causing damage/loss.

Cost of Making a Claim

A significant difference to understand is the cost of making workers’ compensation and common law claims. If you need to apply to WorkCover for a decision regarding your workers’ compensation claim, you may have to pay for medical reports. Depending on your lawyer, there might be legal fees you have to pay but if you lose you don’t generally have to pay the insurer’s legal costs. Anvil Legal offers a No Win No Fee solution. This means if we are unsuccessful in getting you any compensation, we reduce our invoice to zero. If your claim is successful, the insurer may cover some of your legal fees and medical report costs. Common law claims can be risky in that if you lose you have to pay the Defendant’s legal bill and that could be a very significant figure.

Claim Lawyers Perth

Anvil Legal’s lawyers assist injured workers in navigating the WA legal system to get the compensation they deserve. If you have been injured on the job, please don’t hesitate to contact us for a free consultation. We can help you understand your rights and options and guide you through the process of pursuing a workers’ compensation claim or a common law claim. Don’t wait, call Anvil Legal today to get the help you need.

This advice is general and not to be taken as legal advice, every claim is different and this information could be out of date tomorrow. You should immediately seek the opinion of a legal practitioner who has all the facts related to your claim and follow their advice if you want to take any matter like this further.

Anvil Legal