If you’ve been seriously injured at work and your workers compensation claim has been lodged and accepted, you may be eligible to pursue a lump sum compensation claim for your workplace injury. There are two types of lump sum payments for workers compensation:
- Permanent Impairment Payout: This is a lump sum payout intended to compensate you for the overall effect your work injury has had on you. To claim a permanent impairment payout you must have an 11% or more permanent physical impairment or a 15% or more primary psychological injury.
- Work Injury Damages Payout: This is a common law claim, also known as modified common law damages. To pursue a work injury damages payout your injury must have been caused by the negligence of your employer and you must have at least 15% permanent impairment, accepted by the insurer or determined by the Personal Injury Commission.
Mediation in a Work Injury Damages claim
In order to be eligible for a work injuries damages claim you must:
- Have at least 15% whole person permanent impairment.
- Your permanent impairment assessment must be accepted by the insurer or determined by the Personal Injury Commission.
- The work injury must be the result of your employers’ negligence.
- Court proceedings must start at least 6 months after the injury is reported and within three years of the date of the injury. If you wish to have this extended you will need to get the leave of the Court.
- You must have received all statutory lump sum entitlements for permanent impairment before the work injury damages claim can be settled.
Filing a Work Injury Damages claim
Once you satisfy the above criteria your lawyer will make a Work Injury Damages claim against your employer and send a copy of the claim to the workers compensation insurer. The insurer will then decide whether to accept or decline the claim, if they deny the claim on the basis that your employer was not liable then you have the option of referring your claim to mediation and hearing.
Mediation for a Work Injury Damages Claim
Before mediation your lawyer will need to prepare a Pre-Filing Statement, this details your claim, evidence of your injuries, your level of financial loss, evidence to prove that your employer was negligent and the amount of compensation you are seeking. Once you have laid out your evidence the insurer will reply with a Pre-Filing Defence, which sets out their response.
Your claim is then referred to a mediator for the dispute. Mediation is the process by which each party is able to present their evidence in an attempt to reach a mutually agreeable settlement. The claimant and defendant may both present amounts they are willing to settle for, often meeting somewhere in the middle.
If the matter fails to be resolved during mediation, then the case will be referred to the District Court and be heard by a judge.