The Difference Between a WorkCover Benefits Claim and a Common Law Damages Claim

Workcover claims in Melbourne

If you have been hurt on the job in Victoria, you deserve fair compensation for your injury. Recovering compensation typically requires bringing a WorkCover claim, a common law damages claim, or both. It is critical that injured workers understand how each of these claims work.

If you have been injured on the job in Melbourne or elsewhere in Victoria, or you have any questions about workplace injuries in general, please contact an our experienced WorkCover claims lawyers for immediate legal assistance.

The Main Difference Between Common Law and WorkCover

A WorkCover claim is brought under a “no-fault” theory of liability. This means that fault is simply not a factor when it comes to settling a WorkCover claim. Victorian workers are entitled to full WorkCover benefits no matter who or what was responsible for their on-the- job injury.

This is in direct contrast to a common law damages claim. In order to bring a successful common law damages claim, an injured worker must prove that their injury was caused by the negligence of another. In other words, the worker must prove that someone else failed to take proper care to prevent their injuries. This concept is known as negligence, as described by law.

Proving negligence requires establishing each one of four separate required legal elements. It must be established that:

  • A duty to take proper care existed.
  • This duty was breached by an employer or another party.
  • There is a connection that can be established between the breach and the injuries.
  • Real damages were sustained by the injured person.

Work injury common law claims do not necessarily have to be against an employer. These claims can also bring in third parties. For example, if your work injury was caused by the negligence of another contractor on a construction worksite, you could bring a common law claim against the other contractor. Ultimately, the negligent parties should always be held accountable for the damages that they caused.

Further, it is important to note that fault for a workplace injury is not always easy to ascertain. Often, injured workers feel that they were injured by random chance, or even that they were responsible for their own injuries. Things can get even more complex if multiple parties shared responsibility for your injury.

In Victoria, employers are required to treat employee safety with the highest duty of care. All employers are held to very high standards. Employer negligence can take a number of different forms. If you were injured on the job, it is always best to have an experienced lawyer comprehensively review the specific facts of your case.

Your injury may have been caused by someone’s negligence, even if you do not realise it. This is crucial, because a common law damages claim may allow you to recover significantly more compensation than what is available under a WorkCover claim alone.

The Differences in Benefits

Since WorkCover claims are based on the no fault theory of recovery, all injured workers are entitled to WorkCover benefits. These benefits typically include:

  • Compensation for all of the medical and rehabilitation expenses that are related to the workplace injury
  • Partial replacement of any wages that are lost during the period that the injured worker is forced to miss time from work
  • In some cases, a lump sum payment for any permanent impairment sustained as a result of the injury

While these benefits are critical for injured workers, they are often insufficient to provide compensation for the full extent of losses. Direct medical expenses are covered under the no- fault WorkCover system, but often workers sustain substantial additional losses. In cases where a worker can bring a common law damages claim, there is potential to recover this additional compensation. The two primary categories of common law damages are:

  • Pain and suffering, including loss of life enjoyment
  • Economic damages, in particular the loss of current and future earning capacity

However, you can bring a common law claim only if your workplace injuries qualify as “serious” under Victorian law. An injury will be deemed serious if the victim received at least a 30 percent impairment assessment on their WorkCover application or if they meet the qualifying standards set forth by the Accident Compensation Act.

Both Claims Require a Good Lawyer

Whether you are lodging a common law damages claim or a WorkCover claim, you should seek professional assistance from a good lawyer. Unfortunately, injured employees are seldom offered immediate full and fair compensation from employers or insurance companies. It typically takes persistence to recover full injury benefits, as both types of claims involve very complex areas of law.

Your injury case always deserves individual attention from a lawyer who has deep experience and proficiency handling these types of claims. Further, it is best to have a lawyer by your side as soon as possible after your injury. Getting a lawyer involved early will dramatically increase your chances of lodging a successful claim. Some actions your lawyer will take include:

  • Comprehensively investigating the circumstances of your accident
  • Ensuring that you receiving proper independent medical evaluation, so that the full extent of your injuries is properly documented
  • Helping you navigate the complex WorkCover process, including ensuring that all claim forms are filled out without error
  • Assessing whether bringing common law claim is right for your situation
  • Helping you resolve any disputes and protecting your rights throughout the legal process.

Let Our Team Assist You

If you have been injured on the job in Victoria, the experienced work injury lawyers at Henry Carus + Associates can help. Our firm handles both WorkCover claims and common law injury claims. We represent injured workers on a “no win, no fee” basis, which means we get paid only if we help you recover compensation. You can afford a good lawyer, you do not need to go it alone. Please contact our office today to schedule your free initial legal consultation.