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Peter Claven

Published: 10 November 2012
Author: Peter Claven

Not all lump sum payments are the same. Are you missing out on a Common Law claim?

If an injured worker pursues compensation for their work-related injury, there are two types of lump sum claims to consider. However there is a vast difference between the two.

So what?

Well, one, an impairment claim, rarely exceeds $100,000. The other, a Common Law claim for damages, can run to a seven-figure sum. And yet, both types of payouts can be awarded for the same injury suffered by a person at work.

It is unfortunate that some injured workers simply settle for the impairment claim, which is the more miserly claim, simply because they are unaware that in addition to this claim, they could also pursue a Common Law claim.

How does it work?

Once your initial WorkCover claim has been lodged and accepted, you are potentially able to access a number of WorkCover entitlements. The WorkCover system has been set up specifically to offer an efficient and readily accessible scheme of benefits to anyone who has been injured at work.

However, if you are unfortunate enough to have been seriously injured, or most importantly, if that injury has had a significant impact on your life and possibly on your ability to earn an income, you will need more than temporary income support and a few bills paid. You have to start thinking about how you are going to support yourself and your family.

After you've received 130 weeks of income benefits, the WorkCover insurer may terminate those benefits, if they determine you can resume some type of work. To get income benefits 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. If your income benefits do get terminated and you are unable to work, you may be thrown onto a Centrelink scheme for income.

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 impairment claim referred to above) which will at least go some ways towards aiding you financially into the future.

The amount payable under an impairment claim is based on the severity of the injury or injuries, as determined by a specially trained doctor. For example: x injury = $y. So, let's say you have a back injury that is assessed as being a 5% "whole person impairment" rating by the doctor. This would entitle you to the gross sum of $10,760. This is a fixed amount based solely on the percentage impairment.

But if your injury is severe and there was obvious employer's negligence, there is a further lump sum option. This is a Common Law claim for damages. If successful, it is worth much, much more than an impairment claim, with some awards totalling well into seven figures.

Despite what some may think, it isn't always necessary to have to take your Common Law claim to trial. It may turn out that way, but many cases are settled well before the need to step into a court room, either through a settlement conference or via mediation, or simply through agreement between the parties.

The story factor

There is another big difference between the two types of lump sums.

While, as mentioned above, the impairment claim is based on a percentage figure allocated to your injury (or injuries), assessing a Common Law claim takes into account the bigger picture. It is based on an assessment of the impact of the injury on your life and future - your personal story.

For example, if you are a professional piano player and you suffer injury to one of your hands, the impact of that injury on your future career would be disastrous.

With an impairment claim, a hand is a hand, no matter whom it's attached to. It is irrelevant that you happen to earn your living by relying on the dexterity of your hand movements. A person with the same injury but whose life isn't anywhere near as affected as yours is entitled to the same amount as you.

But under a Common Law claim, your hand injury would likely be construed to be a serious injury because of the severity of the impact on you and your career. The more severe the impact of the injury on your life, generally speaking, the larger the compensation payout.

How do I find out about Common Law lump sums?

Unfortunately, it sometimes happens by chance. The WorkCover insurer does not usually go out of their way to inform you of your Common Law rights. If you look closely, there may be some information in documentation provided by WorkCover but that's usually it. It seems to be missed by many injured workers in any event.

Your employer is unlikely to tell you. A union rep, if you have one, usually will. As will a lawyer if you have one.

And unfortunately, not everyone with a serious injury does.

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