In Western Australia, a person can only pursue a common-law claim against the employer in limited circumstances. Prior to commencing proceedings, the injured person must obtain an assessment of their whole person impairment, and make an election to pursue common-law damages before the termination date. The person cannot make an election to pursue common-law damages unless their whole person impairment is not less than 15%.
Effects of a common law election
It is often the case that where an injured person elects to pursue common-law damages, they are under a lot of financial pressure. The reason for this is two fold in the event that the person’s level of whole person impairment is not less than 15% but less than 25%:
- Firstly after the person relaxed to pursue common-law damages against their employer, their weekly payments of compensation reduce to 70% for three months, then 50% for the next three months and after six months they cease.
- Secondly, from the date of the election The workers compensation insurer is no longer liable to pay for stature tree expenses which include rehabilitation costs and medical costs.
By the time the injured person makes a common law election there will often be no significant medical treatment that is needed, such as surgical intervention. The reason for this is that if the injured person needed significant amounts of medical treatment then the approved medical practitioner who provided the assessment would not have given them a percentage impairment. They would’ve provided the injured person with certificates stating that the condition has not stabilised.
Obtaining reports that whole person impairment is less than 15%
As I have stated previously, it is a requirement that the injured person obtains an assessment that their whole person impairment is not less than 15%. This is the threshold for the matter to proceed to a common law workers compensation claim. The matter then proceeds to court in the district court of Western Australia.
At trial, a judge would assess whether the injured person, after assessing all of the medical evidence, has a whole person impairment of not less than 15%. If the person is found to have a whole person impairment that is less than 15% then their case fails and they will be awarded nothing.
One of the first methods for insurance companies use to defeat of the workers compensation common-law claim is to send the injured worker for several assessments with doctors that they have found to give relatively low assessments of whole person impairment. It is often the case these doctors will state that the injured person has a whole person impairment of less than 15%. The only way that this can be countered is to get more opinions indicating that the injured person as a whole person impairment of not less than 15%.
If the injured person is to be successful in a common-law claim, then they must prove that their employer was negligent. This contrasts with the situation in a workers’ compensation claim, which is a no fault system and in most cases the workers claim will be accepted if they can show that they suffered an injury in the course of their work.
It is often a very hard choice for an injured worker to determine whether they should pursue a common-law claim because they have a limited amount of information about whether there was any negligence causing their claim. In many claims this is limited to the injured persons own version of events.
In the event that an injured worker elects to pursue common-law damages the workers compensation insurer will usually engage investigators to take statements regarding the claim. If allowed to do so they will take a statement from the injured worker about the circumstances of the accident, though it is normal for personal injury lawyers to recommend the injured person does not agree to be interviewed so as to provide a statement to the insurer. The reason for this is twofold, firstly, the insurer will know the version of events that the injured person is likely to present a trial and will be in a better position to prepare their case, secondly, the insurer will be in a position to use that statement has a prior inconsistent statement at trial to the extent that there is an inconsistency.
If you have made a claim for workers compensation, and I considering making a common-law claim, it is recommended that you obtain the services of a trained personal injury lawyer specialising in the workers compensation area.