Workers Compensation Common Law Claim
A workers compensation common law claim is a court action against a negligent employer which can be commenced separately (although it is linked as you will see) from a workers compensation claim in certain circumstances.
Under the Workers Compensation Act an injured worker who is entitled to workers compensation can only make a common law claim against their employer for that injury if they meet the following criteria:
- An assessment is undertaken by an AMS doctor who certifies that the injured worker has a 15% or more ‘whole person impairment’ (WPI); and
- The injured worker lodges an election notice with WorkCover before the expiry of the termination date.
The ‘termination date’ (TD) is different for each injured worker but is generally 12 months from when a claim was made:
- If your TD is missed you cannot commence an action in common law against your employer for that injury.
- An AMS doctor can provide a certificate stating your injury hasn’t stabilised enough for an assessment to be done and requesting the TD be extended.
- Any application for an extension of the termination date needs to be made to WorkCover, by you or your representative, prior to the original termination date.
- In any event a common law claim needs to be commenced within three (3) years from the date of the injury.
What If The Negligent Party Was Not My Employer?
The process set out above does not apply, if the negligent party causing your injuries was not your employer, except that you still need to start an action within three (3) years from the date of the injury.
How Do I Protect My Common Law Rights?
The only way you can protect your workers compensation common law rights against your employer is to have an assessment by an approved medical specialist. It is not possible to guess if you will reach the required threshold, as far as the whole person impairment percentage goes, that is the role of the specialists.
You do need to have a bit of common sense when thinking about getting a whole person impairment assessment as it would be extremely unlikely you would be assessed as having a 15% WPI for a paper cut that has completely healed, but if that cut led to other significant problems that might be another story.
If you want to do all you can to protect your workers compensation common law rights you should not put off speaking to us immediately as once your termination date has gone you can never make a workers compensation common law claim against your employer even if you were severely injured in a clearly negligent act.
What Can You Do To Protect Yourself Now
While the information in these pages is relevant to your claim you could speak to a lawyer obligation free and at no cost instead of spending the next week looking around the web for more concise information.
It’s easy, you can call us on 08 6143 5200 or fill out an enquiry form here and we would be happy to discuss your claim, at no cost to you, over the phone or at your free appointment.
We guarantee that you will not have to pay for your consultation and if you are eligible for our No Win No Fee Solution* (as most work injuries are) we can continue to help you through the life of your claim without you having to pay for our legal advice out of your own pocket.
If you have already spoken to other lawyers about workers compensation and they haven’t been able to take on your claim please give us a call to see if we can help you.Back to Faq's