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If you have sustained a work-related injury and have legal representations, you may have heard about that you may potentially be entitled to a “work injury damages” claim. So, what exactly is this and what is the process?
A work injury damages claim is made when an injured worker sues their employer for damages due to negligence. This means a work injury damages claim is fault-based and you must be able to establish your employer was at fault and breached their duty of care before you’re entitled to compensation.
Not all injured workers have an entitlement or am eligible to make a claim for work injury damages. To be eligible, the following criteria must be met:
• The injury, loss and damages were a result of the negligence of the employer; and
• The injured worker (claimant) must have an assessed level of permanent impairment of at least 15% whole person impairment – this could be by agreement with the insurer, or by assessment of the Personal Injury Commission.
If you are successful in proving the above criteria, the insurer will be liable to pay for your compensation damages. The damages are paid as one lump sum payment, and not periodic payments (such as your weekly benefits payments). The damages are to compensate you for your past loss of earnings and future loss of earning. This including loss of past and future superannuation contributions from the date of injury until retirement age. How much you’re entitled to claim will depend on your injuries, and how those injuries have affected your work and earning capacity in the past and into the future.
It is important that you know upon the resolution of your work injury damages claim either by way of settlement negotiations, or by a court judgment, the resolution will extinguish all further entitlements to workers compensation statutory benefits. This includes weekly payments, medical, hospital and rehabilitation expenses or any further lump sum payments, associated with that subject work-related injury.
The amount of weekly benefit payments that has already been paid to the injured worker must also be repaid out of that final damages lump sum amount. You should not worry too much about this as it is the job of your legal representations to calculate the amount of damages to claim from the insurer prior to any settlement negotiations or court hearing, with consideration of any past weekly benefits payments made to date.
If your actions or behaviour also contributed to the subject work-related injury, then the amount awarded can also be reduced to counter for your own negligence.
In most work injury damages claims, the parties are required to participate in a compulsory mediation, hosted by the Personal Injury Commission before the commencement of any court proceedings.
Mediation is defined by the Commission as a fair, unbiased and informal process in which parties, with the assistance of a Mediator, have the opportunity to identify the issues in dispute; develop options; consider alternatives and endeavour to reach an agreed outcome that permanently resolves a claim for workplace injury damages.
Mediators do not have a role of determining the outcome of the claim or advising either party about the substantive outcome of the dispute.
Parties will be requested to agree that the mediation is confidential and privileged.
The mediation will commence with an introduction and explanation of the process of mediation in the Commission. This introduction will outline the role of the Mediator and participants; the mediation process and any rules of behaviour, as well as give the parties an opportunity to ask questions.
Parties will be given the opportunity to present a statement of the issues in relation to the claim from their own perspective. Once issues in are identified and understood, parties will be encouraged to participate in joint exploratory discussions facilitated by the Mediator.
Parties will have the opportunity to hold private meetings, with and without the Mediator. Parties may move between private and joint sessions as appropriate as they explore options for settlement.
Whether or not the claim is resolved the mediator will conduct a final joint session where the parties come together and the Mediator will note the agreement or facilitate final negotiations leading to either:
• Settlement of the dispute; or
• The issue of a Certificate of Mediation Outcome that records the final offers of the parties.
The current success rate of reaching a resolution at mediation is two out of three matters. It is only if your matter does not resolve at mediation that you may have to commence court proceedings to recover damages.
The workers compensation scheme is a complex scheme so if you believe you are entitled to weekly benefits or are unsure, we can provide you with some advice and help guide you through the entire process so that you are fairly compensated.
Our Head of NSW, Jessica Cheung is an Accredited Specialist in Personal Injury Law, specializing in work injury compensation claims. If you believe you have sustained a work injury and may be entitled to compensation, we urge you to contact Jessica and her team today for a confidential discussion about your claim.
近年来，社会对于精神疾病的认知、给予的支持以及开拓的治疗逐渐进步。随着大家对精神健康(mental health) 的讨论渐渐开放和了解，社会对 “精神疾病” 或 “心理障碍” 患者的污名化以及刻板影响也日渐被打破。尽管如此，对于患者来说，要维持生计、养家糊口依然是一个很大的挑战。当一个人因为精神疾病而无法工作，她/他可以申请完全和永久伤残保险 (Total and Permanent Disability Insurance, 以下简称TPD保险) 赔偿吗？ 很多人或许会认为，身体上的伤残比精神疾病更符合申请TPD保险或收入保障险 (Income Protection Insurance，或称Salary Continuance Benefits)的资格。或许正在阅读这篇文章的您也认为以精神疾病或障碍作为理由去申请索赔的成功率很低，所以没必要尝试。我们希望这一篇文章能改变您的看法，也能为一些受精神疾病困扰的人提供一些有用的信息。 ...Read More