Workers injured on the job in Western Australia have two distinct legal pathways for seeking compensation: statutory workers’ compensation claims and common law work injury damages claims. Understanding the differences between these options is critical for maximising your entitlements under WA’s Workers’ Compensation and Injury Management Act 1981.
Key differences between WA workers’ compensation and work injury damages:
Workers’ Compensation (No-Fault Statutory Claims):
- Eligibility: Available to all workers injured during employment, regardless of who was at fault for the accident
- Coverage includes: Weekly wage payments (based on pre-injury average earnings), reasonable medical and rehabilitation expenses, vocational rehabilitation costs, and potential lump sum payments for permanent injuries
- Impairment thresholds: Lump sum claims require at least 10% whole-person impairment for physical injuries or 15% for psychological injuries, assessed minimum 12 months post-injury
- No negligence proof required: Compensation is accessible without establishing employer fault
Work Injury Damages (Common Law Claims):
- Eligibility criteria: Requires minimum 15% permanent whole-person impairment from the work-related injury
- Negligence requirement: Must prove employer negligence in failing to provide a safe workplace or proper safety systems
- Compensation scope: Covers past and future lost earnings, loss of earning capacity, past and future superannuation loss, and pain and suffering (note: medical expenses are not recoverable under common law claims)
- Higher compensation potential: Work injury damages claims may exceed $100,000 depending on circumstances
- Important consequence: Accepting common law damages terminates all statutory workers’ compensation entitlements
Critical considerations for WA workers:
- Strict time limitations apply to both claim types under WA legislation
- Workers may receive statutory compensation whilst investigating eligibility for common law claims
- Many workers receiving workers’ compensation payments may be unaware of potential common law claim eligibility
- Professional legal assessment is necessary to determine whether the 15% impairment threshold and negligence elements can be established
Understanding which pathway applies to your situation, or whether both may be available sequentially, requires assessment of injury severity, workplace circumstances, and applicable WA statutory requirements.
Worker’s Compensation Claims
Typically, work injuries sustained in a WA workplace require recovering compensation from the workers’ compensation insurer. Compensation usually entails weekly payments and medical and vocational rehabilitation costs. However, if certain criteria are met, injured employees can also lodge a common law claim. A common law claim stands apart from worker’s compensation payments.
Workers’ Compensation in WA is a “no-fault” insurance payment system for employees who are injured at work or become sick due to their work. Worker’s Compensation payments can cover the following:
- Wages, while recovering and not fit for work
- Reasonable hospital, medical, and travel expenses
- Vocational rehabilitation costs (physio, chiropractor)
- A lump sum payment
If doesn’t matter whose fault the injuries were. Workers’ Compensation entitlements exist if the claimant was a worker at the time of the accident and suffered the injury during employment.
A worker can enter a claim for statutory workers’ compensation if they sustained an injury, whether physical or psychological, during their employment. For example, suppose an employee develops a disease that impacts their health. A disease injury suffered during work puts their employer as the contributing factor to contracting the disease. It also indicates the employer or workplace as the main contributing factor to the acceleration, exacerbation, or deterioration of the disease injury.
The “no fault” scheme
A worker can claim for Worker’s Compensation without having to prove their employer was negligent in causing the workers injuries. Under the “no-fault” scheme, workers are entitled to weekly wage loss payments (at the appropriate rate of the worker’s pre-injury average weekly earnings) and reasonable and necessary medical expenses. In some circumstances, you can also claim for domestic assistance.
A worker can also make a tax-free lump sum claim for permanent injuries sustained at least 12 months after the injury. Workers are not entitled to investigate this claim unless they are likely to achieve a threshold of greater than 10% whole-person impairment (for physical injuries) or at least 15% whole-person impairment (for psychological injuries).
Common law (or work injury damages) claims
Along with Worker’s Compensation, if a worker sustained at least a 15% permanent whole-person impairment, they might be eligible to lodge a common law claim against their employer. This claim is for their negligence in providing a safe and proper workplace. To successfully bring this claim, a worker must prove that their employer was negligent and that the worker suffered injury and loss due to that negligence.
How to make a work injury damages claim
In our experience, work injury damages claims can often be worth more than $100,000. To be eligible to make a work injury damages claim you must satisfy two crucial elements:
- Be assessed with at least 15% whole-person impairment arising from your workers’ compensation injury.
- Establish your employer was negligent in causing your injury.
Be mindful that time limits exist around making a claim. The court upholds these strict time limits. If you reached the impairment threshold, it is essential that you seek legal advice, so we can determine whether your employer was negligent in your work injury.
Many people that have had workers’ compensation claims might not even be aware that they may be able to bring a claim for negligence or work injury damages against their employer.If successful in proving negligence, damages are awarded for past earnings and future earnings lost due to the deprivation or impairment in earning capacity. The court may also award damages for past and future loss of superannuation benefits commensurate with the damages awarded for past and future economic loss.
Note: The court cannot award medical expenses.
Upon receiving any settlement or award of damages for work injury damages, all entitlements under the no-fault statutory worker’s compensation will cease.
Soul Legal will help you get your claim accepted
We specialise in workers’ compensation claims in Perth, WA, with over 100 years of combined experience. If you have any questions, please contact the Soul Legal team. If you have made a claim for compensation or need to dispute a WorkCover claim, contact one of our Workplace Injury Lawyers at Soul Legal today.
We help injured employees suffering physical or psychological injuries at work with their claims. We also help with work injury claims or workers compensation claims in Perth through Workcover, and have expertise with Comcare through appeals to the Administrative Appeals Tribunal (AAT).
We ensure that any common law claim is preserved from the one year “termination date” under the WA state-based scheme.
We offer a No win – No fee service for workers’ injury compensation claims in Perth and aim to help you receive the best possible compensation settlement for your specific situation.
Contact one of our Workers Comp. Lawyers at Soul Legal today for your FREE no obligation claims assessment*
*Consider this article general legal information and do not view it as legal advice. Workers’ Compensation legislation in Western Australia is always evolving, and while we endeavour to ensure we provide correct information, it may not be up to date.
Kevin Wong is the Director of Soul Legal and a seasoned Perth-based personal injury lawyer who has been passionately representing injured clients across Western Australia since 1991, handling everything from minor claims to complex catastrophic injury cases.
