Navigating the Work Injury Compensation Maze

A worker injured at work is entitled to workers compensation benefits irrespective of the fault of the employer. Benefits available are:

• Weekly payments. • Medical expenses.

• Compensation for permanent impairment where the degree of impairment is at least 11%.

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Most injured workers are not entitled to compensation two and a half years after the injury. Very few are entitled to compensation five years after the injury.

An alternative to Workers' Compensation benefits is to sue the employer in negligence for damages. The law limits the ability of injured workers to sue and restricts the entitlement to damages. A claim in damages for a work injury in NSW is known as a Work Injury Damages claim.

To sue an employer for work injury damages, an injured worker must prove three important facts. Firstly, that the worker at least a 15% whole person impairment as a consequence of the injury. Also, an injured worker must wait until he or she has attained "maximum medical improvement" before claiming for impairment. In some cases, that does not occur for many years after the injury occurred.

Secondly, the injured worker must also prove that the employer's negligence was the cause of the injury. This requires the injured worker to prove that the employer breached the duty of care owed to the worker.

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The employer must take reasonable care to avoid exposing workers to unnecessary risk of injury. An employer discharges its duty of care to workers by providing a safe system of work. This involves, amongst other things:

• Competent staff • A safe place of work • Proper plant and equipment • Adequate training and supervision of staff

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The obligation to provide a safe place of work includes any place that an employee is required to attend as a part of his or her work duties, even though the employer may not have direct control of those premises.

An employer's duty of care to its workers is non-delegable. An employer cannot delegate the responsibility of ensuring the safety of its workers to a third party. That means that if an employer sends a worker to another business to perform work, the employer is still responsible for the worker's safety. It cannot pass that responsibility.

An employer is also responsible for any negligent actions of its workers (under a legal principle known as vicarious liability).

The law requires an employer to exercise a very high standard of care to ensure its employees are not injured at work. However, the obligation to provide a safe system of work does not mean that an employer has to make the workplace accident-proof. The employer need only guard against the unreasonable or unnecessary risk of injury.

Proof of an employer's negligence is usually established by obtaining expert opinion as to the cause of an accident and how the accident could have been avoided. The high standard of care demanded of an employer means that it is not difficult to establish negligence. However, if an injured worker's conduct was in part the cause of the injury, any compensation payable by the employer can be reduced on the basis of the injured worker' contributory negligence.

The third fact that the injured worker must prove is that he or she has suffered a loss of income as a consequence of the injury. This is straight forward in most cases as the injured worker has usually suffered a significant loss of wages as a consequence of the injury. The law only allows the injured worker to claim compensation for past and future income loss, including superannuation benefits. An injured worker is not entitled to claim for "pain and suffering" or future medical needs.

The entitlement to workers compensation benefits of all kinds ends upon the conclusion of a damages claim.

Employers are legally required to take out Worker's Compensation insurance. The policy covers the payment of workers compensation benefits and Work Injury Damages claims.

Workers' Compensation laws can be a "legal minefield". Turner Freeman has been advising injured workers since 1952. If you have been injured at work, we recommend you contact Turner Freeman for an obligation free consultation with an experienced lawyer.

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Ben Grosse specialises in workers compensation, work injury damages, occupiers and public liability, motor vehicle accidents and total and permanent disability insurance