Impairment versus Common Law claims

If you are an injured worker lodging a compensation claim for a work-related injury, you need to understand that there are two different types of lump sum claims to consider. There is a big difference between the two.

Failing to understand that difference could cost you hundreds of thousands of dollars. This is what you need to know about the two.

The difference between an Impairment claim and Common Law claim for damages

Once your initial WorkCover claim has been lodged and accepted, you are potentially eligible to access a number of WorkCover entitlements. However, if you are unfortunate enough to have been seriously injured, or if that injury has had a big impact on your life and possibly on your ability to earn an income, you may need more than temporary income support and medical expenses paid. Termination of weekly payments after 130 weeks After you’ve received 130 weeks of weekly payments, the WorkCover insurer may terminate them if they determine you can resume some type of work. To be entitled to receive weekly payments beyond the 130 week limit can be difficult as you need to show that you not only don’t have the capacity to do your old job, but that you don’t have the capacity to do any job that you could reasonably be expected to do.

To be entitled to receive weekly payments beyond the 130 week limit can be difficult as you need to show that you not only don’t have the capacity to do your old job, but that you don’t have the capacity to do any job that you could reasonably be expected to do.

Unfortunately, should your weekly payments be terminated and if you are unable to work, you may need to apply for a Centrelink benefit for income.

Alternatively, you may be able to pursue a lump sum compensation claim. There are two different types of lump sum claims which I will describe below.

1. WorkCover Impairment claims

In addition to the payment of income benefits and medical expenses, you may be eligible to claim a lump sum to compensate you for permanent impairment.

The amount payable under an impairment claim is based on the type and severity of the injury or injuries, as determined by a specially trained doctor (or doctors). The amount is fixed and based on a percentage rating that you are given. The amounts do not take into account things such as any loss of earnings. Two people could have a similar injury, where one person has had to go off work and the other has remained at work. With an impairment benefit claim, they would both receive the same amount, despite the differing impact on them personally.

2. Common Law claims

If your injury is severe and if it was contributed to by the negligence of another party, you may consider pursuing a Common Law claim for damages. Unlike an impairment claim, the personal consequences of the accident such as loss of earning capacity are taken into account.

The prospect of pursuing a Common Law claim and potentially ending up in court can be intimidating for people. However, not all matters are decided in court. Many are settled well before the need to step into a courtroom, either through a settlement conference or via mediation. In fact, at RCT Law, we settle more than 80% of claims out of court. There is another big difference between the two types of claims. While, as mentioned above, the impairment claim is based on a percentage figure allocated to your injury (or injuries), assessing a Common Law claim involves an assessment of the impact of the injury on your life and future.

For example, suppose you are a professional musician and you suffer injury to one of your hands, the impact of that injury on your future career could be significant. With an impairment claim, a hand is a hand, no matter whose hand it is. It is irrelevant that you might rely on your hands to earn a living. But under a Common Law claim, your hand injury could be construed to be a serious injury because of the severity of the impact on you and your career, and this would be taken into account when assessing your case.

What should you do?

Your best move is to call a good WorkCover injury lawyer and ask them to assess your claim. Many lawyers claim to do this without charge, although I know that most will insist on first obtaining your credit card details even though they claim to be No Win No Fee.

You need to find a law firm that will offer you a free WorkCover injury assessment without any strings attached, like ours. Once you have the information, you can decide on how to proceed with your WorkCover serious injury claim.

This article was first published on 10 November 2012 and updated on 21 December 2020.