Quick Answer: Are You Losing Out on Compensation?
If you’ve been injured on the job in Western Australia, you might be leaving hundreds of thousands of thousands of dollars on the table by relying only on Workers’Compensation. Many injured workers don’t realise that they may also have a personal injury claim – and that could mean a MUCH bigger payout.
Not pursuing all of your options can cost you BIG TIME.
Workers Compensation vs Personal Injury: What’s the Difference?
Most injured workers in WA assume they’re only entitled to Workers’ Compensation. That’s a big mistake because, in many cases, you could be eligible for a personal injury claim (common law claim) – which often results in a much higher payout.
Here’s how they compare:
Feature | Workers’ Compensation (WorkCover WA) | Personal Injury Claim (Common Law Claim) |
|---|---|---|
| Fault Requirement | No-fault system | Requires proof of negligence |
| Compensation Coverage | Covers medical expenses, vocational rehabilitation, lost wages, and some permanent impairments | Covers general damages, such as pain and suffering, future medical treatment and economic loss assessed by a judge and gratuitous services. |
| Pain & Suffering Damages | NOT covered | Covered |
| Payout Limits | Capped under WorkCover WA | Higher caps apply for a limited work injury common law claim but otherwise very limited caps apply. |
| Dispute Resolution Process | WorkCover WA is the dispute resolution body. They resolve disputes about entitlement to compensation, however, WorkCover cannot assess how much your claim is worth in totality. | Personal injury common law claims are usually brought in the District Court of Western Australia which has an unlimited jurisdiction for personal injury or illness. A judge will assess the value of your personal injury law claim. |
BIGGEST MISTAKE – There are two main ways you could be entitled to bring a District Court personal injury claim:
- If your employer’s negligence contributed to your injury giving rise to your workers compensation claim, you could be eligible for common law damages if you have a whole person impairment of not less than 15% and can prove negligence. Many people settle for WorkCover payments and lose their right to a bigger claim.
- If a person or company other than your employer was negligent and that caused your injury, then you can bring a District Court common law action against that person or company. You do not need a whole person impairment.
What’s Covered Under Each Claim?
To understand the potential difference in payouts, let’s look at what each claim covers in detail:
Workers’ Compensation (WorkCover WA) – Limited, No-Fault Benefits
WA’s Workers’ Compensation and Injury Management Act 2023 sets clear limits on benefits:
- Medical Expenses: Up to $158,692 (indexed annually). Can be extended in limited circumstances.
- Weekly Payments: A weekly amount which is usually your pre-injury earnings for 26 weeks, and thereafter at 85% of pre-injury earnings. The maximum amount is capped at $264,487. This amount can only be extended if you are permanently totally incapacitated.
- Lump Sum for Permanent Impairment: If you have undergone an assessment by an Approved Permanent Impairment Assessor (APIA), you may be eligible for compensation for your permanent impairment.
- Pain & Suffering: You CANNOT claim compensation for pain and suffering under Workers’ Compensation.
Personal Injury (Common Law Claim) – Higher Payouts, Negligence-Based
If your employer was negligent (e.g., unsafe work conditions, lack of training, failure to provide PPE), you may be able to sue for common law damages.
If you are assessed by a judge as having a whole person impairment of not less than 15% but less than 25% then you have a limited common law claim. The maximum entitlement in the person from 1 July 2024 to 30 June 2025 is $555,426 minus the workers compensation entitlement you have received to date.
If you are assessed by a judge as having serious injuries in that you have a whole person impairment of not less than 25% then the potential award against your employer is not limited.
Who Qualifies for a Workers Compensation (Common Law Claim) in WA?
To make a common law claim, you must meet two requirements:
1️⃣ Prove Employer Negligence: You must show that your employer’s actions (or failure to act) caused your injury.
2️⃣ Permanent Whole Person Impairment (PWPI) of at least 15%:
- PWPI is a medical assessment that measures the impact of a permanent injury.
- Assessed by an approved medical specialist following legal guidelines.
- Under 15%? You CANNOT pursue a common law claim in WA.
Negligence-Based Claims: Real-Life Examples in WA
Negligence-based claims apply when an injury is caused by someone else’s negligence. Here are real WA case examples:
- Construction Worker Accident: Injured due to unsafe scaffolding collapse.
- Nurse/Healthcare Worker: Assaulted by a patient due to lack of security.
- Retail Worker: Slipped in a stockroom with no hazard signs.
- Truck Driver: Injured in a vehicle crash due to employer’s failure to maintain brakes.
Common Law Claim Risks & Challenges
Many assume common law claims = easy big payout. However, there are challenges:
- Proving negligence: Strong evidence is required to win a claim.
- Timeframe: Common law claims take longer than WorkCover claims (12-24 months on average).
- Legal Costs: If unsuccessful, you may have to cover some costs.
Common Mistakes That Cost Injured Workers BIG Money
1️⃣ Assuming Workers Compensation is the Only Option
Many workers don’t realize they might qualify for a personal injury claim as well.
- WorkCover helps, but it’s NOT full compensation.
- A personal injury claim could cover pain and suffering + higher lost income payouts.
2️⃣ Accepting a Low Payout Offer Without Legal Advice
Insurers push for quick, low settlements. If you don’t know your rights, you could be missing out on thousands.
- Always speak to a workers comp lawyer before accepting a WorkCover settlement.
- Once you settle, you CANNOT file a personal injury claim later.
3️⃣ Waiting Too Long to Take Action
- Workers’ Compensation: Must be reported as soon as possible.
- Personal Injury Claims: Must be filed with the District Court within 3 years.
⏳Missing these deadlines can mean losing your entire claim.
WA Case Study: Coming Close to a $250,000 Mistake
Typical Case: A WA construction worker suffered a serious back injury when scaffolding collapsed.
- The Workers Compensation Insurer offered him a lump sum of $85,000 (for medical + lost wages).
- He spoke to a personal injury lawyer, who proved employer negligence.
- Common Law Claim secured him $335,000 – a $250,000 difference.
LESSON: Don’t settle too soon – explore all your options first.
FAQs: Key Questions About Workers Compensation and Personal Injury Settlement
Will my workers compensation claim be accepted if I Have a Pre-Existing Condition?
You will have a right to compensation if you suffered a recurrence, aggravation or acceleration of a pre-existing condition to a significant degree.
If you bring a WorkCover WA application for medical treatment you could potentially be unsuccessful on the basis that you would have required that treatment anyway, but you may still be eligible.
WorkCover Settlements – What Are the Pros & Cons?
If you accept a lump sum, you might waive your right to a personal injury claim. However, sometimes, settling quickly is beneficial for financial certainty.
Negotiation tip: Consult a workover lawyer to maximize your payout if you are unsure about a settlement offer or your rights to receive a settlement amount. The workers compensation scheme can be complex, so if you want to know whether you will receive fair compensation for your past and future losses in a lump sum payment then it is best to seek legal advice.
How Long Does Each Compensation Claim Process Take?
| Claim Type | Process Duration | Do You Need a Lawyer? |
|---|---|---|
WorkCover Claim | Usually takes about 12 months for the condition to stabilise. Generally once settlement is received it takes about 6 – 8 weeks for the settlement and payment to be made. | The workers compensation process can be very difficult so it is recommended that you have a lawyer. |
Common Law Claim | 12-24 months from commencement of legal proceedings (varies) | It is very difficult to bring a common law claim without the assistance of a lawyer. |
Can I Change Lawyers Midway?
You should speak with your existing lawyer before making a change.
Yes, you can switch personal injury lawyers at any stage. Firms like Foyle Legal can usually take over cases with no upfront cost.
If your previous lawyers are no win no fee lawyers, you may need to talk to them about your legal fees before switching to a new lawyer. Often, your new lawyer should be able to negotiate on your behalf.
What Happens If My Employer Goes Bankrupt?
Workers Compensation is a statutory scheme with provisions that state that if your employer goes bankrupt then the workers compensation insurer needs to take over the payments regarding your claim.
Can I claim both Workers Compensation and a Personal Injury claim?
Yes! You can receive WorkCover benefits first and file a personal injury claim later.
However, workers compensation payments may be deducted from your final settlement.
What if I’m partially at fault for my injury?
The workers compensation scheme is a no fault system which means that usually you can receive workers compensation benefits even if you are at fault.
If you are in a common law claim, you will still receive damages, but your compensation payout may be reduced under contributory negligence laws.
For example, if you’re found 20% at fault, your payout is reduced by 20%.
How do I prove negligence for a personal injury claim?
You need evidence like:
- Safety records & maintenance logs
- Witness statements
- Medical reports & accident reports
Foyle Legal helps WA workers gather evidence and maximize their claim.
Additional Questions Injured Workers Need to Know
What If My Workers Compensation Claim Is Denied?
If your workers compensation claim is denied you can make an application to WorkCover WA. A workers compensation lawyer can help gather evidence to challenge the denial. You should act quickly as claims seldom improve with age.
Third-Party Negligence & Dual Claims
If a third party (e.g., contractor, manufacturer) contributed to your injury, you may sue them separately. Defective equipment, unsafe work conditions, or third-party actions could entitle you to more compensation.
Psychological Injuries & Mental Health Claims
You can claim Workers’ Comp for work-related stress, PTSD, or mental health conditions. If your psychological injury was caused by employer negligence, you may also have a personal injury claim.
What If My Employer Retaliates Against Me for Filing a Claim?
Your employer CANNOT legally fire you for making a claim. If you experience workplace retaliation, a lawyer can help you protect your rights.
Does My Immigration Status Affect My Right to Compensation?
Temporary visa holders can still claim Workers’ Compensation. WorkCover WA does not discriminate based on visa status. Consulting a lawyer can help ensure your rights are protected.
How Much Compensation Can I Realistically Expect?
Compensation depends on injury severity, lost income, and future medical costs. A lawyer can assess your case to provide an estimated payout range.
Returning to Work After an Injury
You are not required to return to work until medically fit. Employers must provide suitable duties if you are recovering. If forced back too soon, you may have a legal case for compensation.
What Happens If I’m Injured While Working Remotely?
Injuries sustained while working from home may still be covered. You need to prove your injury occurred during work-related activities. Proper documentation and legal advice can strengthen your claim.
What to Do Next: Protect Your Rights & Maximize Your Payout
1️⃣ Report your injury within 30 days.
2️⃣ Gather evidence – take photos, get medical reports, collect witness statements.
3️⃣ Talk to a lawyer BEFORE accepting a settlement.
4️⃣ Check your eligibility for a personal injury claim.
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Final Thoughts: Don’t Get Underpaid
If you’ve been injured at work in WA, don’t assume Workers Compensation is all you can get. A personal injury claim could mean a much larger payout.
🚀 Get expert advice today. It costs you nothing to find out if you’re eligible.
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