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March 17, 2020

Public Liability Claims and the Civil Liability Act

Injury, Accident and Workers Compensation Claims

If you suffer injury (including both physical and/or mental injury) as a result of a workplace accident or in connection with the carrying out of work duties in the course of your employment, you may be entitled to payment of workers compensation benefits under the Workers’ Compensation & Injury Management Act 1981 of WA (“WCIMA”).

Persons who can qualify as a worker to a claim for workers compensation benefits include:

  • Full-time, part-time, casual, seasonal workers and persons paid on a commission basis;
  • Contractors, sub-contractors and working directors;
  • Jockeys and apprentices; and
  • Persons injured whilst working interstate or overseas.

Unlike some other forms of compensation, a person’s entitlement to payment of workers’ compensation does not depend upon establishing the fault or negligence of the employer or another party. The entitlement arises simply when a person who qualifies as a “worker” suffers an “injury”.

An injury for the purposes of workers compensation law is broadly defined and includes, amongst other things:

  • Personal injury caused by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer’s instructions;
  • A disease contracted by a worker in the course of his employment, at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
  • The recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree.

The benefits available to a claimant are prescribed by legislation. The main benefits are weekly payments of compensation for periods of incapacity, hospital and medical expenses, vocational rehabilitation expenses, travel costs and, in circumstances of a claimant suffering permanent impairment to a body part listed under schedule 2 of the WCIMA, payment of a lump sum amount proportionate to the level of impairment.

There are limits to the amount that a claimant can receive under a workers compensation benefit and a failure to provide notice of injury to the employer within required time limits can preclude the recovery of workers compensation benefits that would otherwise be payable.

The usual process for making a claim for workers compensation involves the following:

  • Providing the employer with notice of the injury;
  • Completing and submitting a claim form to the employer; and
  • Obtaining a prescribed workers compensation medical certificate from a medical practitioner and submitting the medical certificate to the employer.

In some circumstances, a claimant may also be able to recover compensation, known as damages, from the employer or a third party in relation to injury arising from a work accident. An entitlement to damages arises in circumstances where injury to the injured person  is caused, or contributed to, by the negligence, breach of duty or breach of contract of the employer or a third party.

The provisions of the WCIMA limit the circumstances in which a worker can recover damages from the employer and also require a claimant to comply with an inflexible election system in order to qualify to claim damages against the employer.

Any worker that has suffered a substantial injury, in particular an injury which may preclude them from resuming pre-injury duties would be well advised to seek legal advice as to whether he or she might qualify to recover damages from the employer and to seek such advice no later than 9 months after suffering the injury.

Employers are required by law to carry workers compensation insurance so most employers have an insurer who manages their claims for them. Some large employers are self-insured and manage claims in-house.

Where the employer of an injured worker fails to carry workers compensation insurance, there is provision for the worker to recover workers compensation benefits from a statutory fund.

Disputes in relation to payment of workers compensation entitlements can be referred to WorkCover WA for conciliation and arbitration.

The law permits a person to redeem or settle their workers compensation entitlements in return for payment of a lump sum amount in prescribed circumstances. Negotiations to settle up a workers compensation claim can occur informally or during the course of any proceedings involving WorkCover WA.

WorkCover WA do not deal with disputes relating to a worker recovering damages in negligence against an employer although the terms of settlement of a workers compensation claim may preclude a worker from later recovering damages against the employer.

David Price has over 27 years of experience representing both claimants and employers in workers compensation proceedings. If you want advice on how to proceed contact D.G. Price & Co.