NSW Workers Compensation: What are work injury damages (“WID”) claims

Jessica Cheung

Head of NSW Workers' Compensation | Sydney

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.

What type of damages am I entitled to claim?

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.

Do I have to attend court? I am scared.

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.