Limitation Dates

Tuesday, December 16, 2008

If you are injured the law limits the time within which you must commence a claim for damages at common law. This is called a limitation period. If you fail to bring your claim within that time period you may be barred from pursuing your claim regardless of the merits.

Under the Workers’ Compensation and Injury Management Act the limitation date is referred to as the termination date.

Your termination date is one year from the date that you lodged your claim for  workers' compensation with your employer. Under certain circumstances the termination date can be extended.

Access to common law damages

Access to common law damages is dependant upon:

1. Proving your employer was negligent;and

2. An approved medical specialist assessing your impairment level at not less than 15%; and

3. Registering an election to pursue common law damages prior to the termination date; and

4. Commencing common law proceedings within 30 days after the Director has given notice that the election has been registered.

How does it work?

For example, if your are injured on 26 June 2008 and you make a claim on your employer on 30 June 2008 the termination date is 30 June 2009.

Six months after you make a claim for compensation you will receive a notice from your employer’s workers’ compensation insurer notifying you of the termination date. It is important that you do not ignore this notice.  If you do not act prompltly when you receive this notice you may forfeit your right to common law damages.

It is recommended that you seek legal advice when you receive this notice for the following reasons:

1.  An appointment with an approved medical specialist will have to be scheduled and often you may have to wait 2 or 3 months before the specialist is able to see you.

2. The approved medical specialists  can be expected to take a further 6 to 8 weeks to provide you with the report and certificate about the outcome of the assessment.

If you are assessed as having a permanent impairment of not less than 15% you will then have to lodge the approved medical specialist's report and certificate at Workcover. This is called an election.

After you have lodged the documents you will  receive notification from the Director that your election has been registered. 

Within 30 days of receiving notification from the Director that your election has been registered you must commence proceedings in the District Court.

Unlawful discontinuance of workers’ compensation

Saturday, December 13, 2008

It is an offence in Western Australia under the Workers’ Compensation and Injury Management Act (the Act) for an employer to discontinue or reduce your workers’ compensation payments otherwise than in accordance with the Act.

An employer is not entitled to discontinue or reduce weekly payments of compensation unless:

1. you have consented; or
2. you have returned to work; or
3. you have been served with a valid notice and a medical certificate. 

 Did you consent?

If you consented to your weekly payments being discontinued there may be circumstances where this will not effect your ongoing entitlement to weekly payments.

You should seek legal advice:

1. before you consent to your payments being discontinued or reduced.; or
2. if you have given your consent and you believe you may have an ongoing entitlement to weekly payments of compensation.

 Have you returned to work?

Your employer is not entitled to discontinue your payments of weekly compensation unless you have returned to full employment for an indefinite period with the employer who is paying workers' compensation. Before the employer is entitled to discontinue your workers' compensation payments you must have returned to work on substantially the same basis of pay and terms and conditions as you were before you were injured.

 Were you served with a valid notice and medical certificate?

If you have not given your consent or returned to work your employer must  serve you with a valid notice and a medical certificate before they are entitled to discontinue or reduce your payments.

The Notice must clearly:

• Inform you of the effect of failing to make an application if you do not agree with the employer's decision to discontinue or reduce payments; and
• Inform you that you may obtain information from Workcover

The medical certificate must:

• State the injury that caused your incapacity;
• State why your injury no longer exists or why your incapacity  is no longer a result of the injury;
• State your capacity for work.

If your employer has not complied with the Act and discontinues your weekly payments of compensation then you are entitled to an order from an Arbitrator that your weekly payments be reinstated.

Damages in personal injury claims

Saturday, December 06, 2008

If you are injured in an accident you are not automatically entitled to damages.

Damages  are awarded if you are able to prove negligence. As the person claiming damages you will have to prove every element of the claim.

 What do I have to prove?

To prove negligence you must be able to show:

1. The person who caused your injuries owed you a duty of care. For example, a driver has a duty of care to operate their vehicle in such a way that no one else will be injured by their driving.
2. The person who caused your injuries acted in such a way that they breached their duty? In a car accident this could be proven if the driver failed to follow the motor vehicle laws.
3. Your accident was caused by their breach of duty.
4. You suffered a loss or damages as a result of their breach. A loss can be financial, physical and emotional.

 What can I claim?

Damages is split into two different categories known as general damages and special damages.

General damages takes into account the pain and suffering you have sustained as a result of your accident. Your doctor or treating specialist will provide this evidence in support of your claim. Your lawyer will write to your doctor or specialist and request a report and may also request your medical records.

General damages also include compensation for any lost earnings and if your injury is very serious and you are prevented from returning to work then you may be awarded an amount for loss of future earning capacity. There are two basic requirements for recovering lost wages. First, the lost wages must be actual and certain. The wages cannot be speculative. Second, you must prove that the injury prevented you from being able to work. To recover future lost earnings, you must prove that you are permanently disabled and that your disability will reduce your future earning capacity. A medical report from your treating specialist will be required to prove loss of future earning capacity.

Special damages are intended to reimburse you for any expenses you have incurred as a result of the accident. For example the cost of travelling to and from hospital, the cost of medication, nursing care, rehabilitation costs or any aids necessary such as a wheelchair.  You will also be entitled to claim compensation for modifications to your house or car.

Time limits

You have a limited amount of time to file a personal injury claim? This period of time is known as the limitation date. If you do not commence proceedings before the limitation date, you may forfeit your right to claim damages.

It is recommended that you seek legal advice shortly after you are injured. You will need to gather evidence and present this to the other person’s insurer. Very often people wait too long before they seek legal advice and vital evidence is lost. If you seek legal advice early and your lawyer believes your claim for compensation has merit he or she will assist you to preserve the evidence.

Choosing a lawyer

Friday, October 17, 2008

If you are injured and decide that you need the services of a personal injury lawyer there are several ways you can get referrals.

• Call Legal Aid or the Law Society for a referral.

• Ask your friends and family if they can recommend someone.

• Ask another lawyer, if you know one.

Once you have decided on a firm to represent you call and ask to speak to the lawyer who will be dealing with your claim. This is a perfectly legitimate request. Depending on your needs, you may be entering into a long term relationship with them so it is important that you can work with your lawyer.

Here are a few things for you to consider when choosing a personal injury lawyer to represent you:

• Choose a lawyer who specialises in personal injury claims. A lawyer who specialises in personal injury claims will be able to assess the merits of your claim, approximate its monetary value, determine the best strategy for pursuing it and will have kept current with the developments in personal injury law.

• Choose a lawyer who is familiar with the different courts and tribunals that deal with personal injury claims. Different courts and tribunals have rules specific to their jurisdiction. For example if you have a work place injury and your claim is disputed your lawyer will more than likely have to represent you at the Dispute Resolution Directorate.

• Choose a lawyer experienced in negotiating with insurance company lawyers. An insurance company lawyer is looking after his or her client. The insurance lawyer is seeking to pay out the least amount possible, so an inexperienced personal injury lawyer may be at a disadvantage in these negotiations.

A good lawyer will always:

•  listen to your concerns;

• return your calls promptly; and

• keep you informed of developments in your claim.