Are workers compensation and work injury damages claims different?

Published 20 Mar 2018

The workers compensation system is mandatory for employers across all states and territories in Australia. Workers compensation enables people who are harmed while performing employment-related activities to claim financial support until they are fit enough to return to their job.

If you are familiar with workers compensation claims in NSW, you may also have heard the term 'work injury damages'. While workers compensation and work injury damages sound similar, they relate to different types of financial redress. Let's look at how they diverge.

Is negligence a factor?

The key difference between the two is whether an employer's negligence led to the injury or illness for which you are claiming.

Workers compensation is available for all incidents that require you to take time off. That means you can make a claim whether you, your employer or no one was to blame for the injury or illness.

Employees who feel their organisation's negligence contributed to their condition can make a work injury damages claim. However, there are several criteria that potential applicants should keep in mind.

Work injury damages are awarded under modified common law damages processes, which means applicants can usually only receive compensation for past and future lost income only. To qualify, the incident:  

  • Must be the result of negligence; and
  • Cause a permanent impairment of 15 per cent. 

Employees must undergo an evaluation from a trained permanent impairment assessor, and the insurer or Workers Compensation Commission must accept the decision before damages will be awarded.

Can I receive both workers compensation and work injury damages?

No. While you can claim workers compensation during the pursuit of work injury damages, a successful negligence settlement will likely void all future workers compensation entitlements. 

You may also be required to pay back any workers compensation payments you've already acquired from your work injury damages settlement. Furthermore, you cannot begin a work injury damages claim until you have received all statutory entitlements to lump sum payments for permanent impairment.

If you're unsure whether you are eligible for work injury damages for an injury or illness, you should contact a specialist law firm to assess your circumstances. Work injury damages claims must be launched within three years of the date the injury occurred, so it is best to seek advice as quickly as possible even if you later decide not to pursue a claim.

To learn more about workers compensation and work injury damages claims, get in touch with Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers for a free consultation.