Common Law Claims
Under the West Australian Workers’ Compensation and Injury Management Act, an approved medical specialist must assess and certify that an injured worker has a not less than 15% whole of person impairment before the worker is entitled to access common law damages through the courts.
Impairment thresholds and common law claims
An impairment threshold is the level of bodily impairment that an injured worker must reach before they are entitled to access certain entitlements under the Act.
Access to common law damages is conditional on a worker being assessed as having a whole of person impairment of not less than 15%.
Workers should be assessed for whole of person impairment once their injuries have reached maximum medical improvement. This means that their condition has stabilised and is unlikely to change substantially in the next year, with or without treatment.
Injured workers who wish to pursue a common law claim in the District Court are subject to strict statutory time limits. The clock starts to run when an injured worker makes a claim on his or her employer for workers’ compensation.
Workers have one year from the day they make a claim for compensation to elect to pursue common law damages against their employer. This is called the termination day. A worker cannot elect after the termination day.
Access to common law damages is dependant upon:
- Proving your employer was negligent;
- An approved medical specialist assessing your impairment level at not less than 15%;
- Registering an election to pursue common law damages prior to the termination date and
- 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:
- 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.
- 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 WA. 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.