Injury Compensation Payouts Guide

In Western Australia, people often seek compensation for a workplace injury, car accident injury, medical negligence, public place injuries, crime victims, and Total and Permanent Disability payouts from the insurance company.

If you think you may have a car accident claim, workers compensation claim, TPD claim, or other types of personal injury claim, there two ways we can help to confirm your claim eligibility.

• Contact Foyle Legal for your obligation free claim review. This is the most accurate way to confirm you claim eligibility.
• Conduct a Free online injury claim check. Foyle Legal offers online WorkCover claim check, online motor vehicle accident claim check, online TPD claim check. These online claim checks provide a high degree of accuracy. However, it does not provide you with advice on how to progress your claim. Thus, it’s best to contact Foyle Legal for your obligation free claim check.

At Foyle Legal, we deal with all types of injuries with different severity, from minor injury to catastrophic injury circumstances. It doesn’t matter what injuries and accident circumstance; we can help you.

The most common type of injury compensation claims include but not limited to:

• back injury claims, 
• whiplash injury,
• hand injury.
• wrist injury,
• spinal injury claims,
• soft tissue injury,
• brain damage due to traumatic brain injury,
• shoulder injury compensation,
• knee injury compensation,
• PTSD claims and psychological injury due to stress.

The best way to help to maximise your compensation amounts is to engage a personal injury lawyer specialises in the type of your injury claim.

Yes, absolutely. You can make a personal injury claim by yourself. But the claim process is complicated and you are likely to get higher lump sum payment with the help of a personal injury lawyer. This is because you can leverage the skills and experience of a compensation lawyer to get a fair permanent impairment rating and negotiate a better settlement amount for your personal injury claim.

If you have engaged a lawyer, your lawyer will help you to make an ICWA claim.

If you are making a personal injury claim by yourself, you may want to:

• Visitor WorkCover WA website. This is because workers compensation claim in WA is administered through WorkCover WA.
• Visit the Insurance Commission of WA (ICWA) website. This is ICWA is the CTP insurer in WA. When you claim compensation for a motor vehicle accident in WA, you are claiming against ICWA.

There is lots of information and hotline on both websites to get you started with your claim process.

Please be aware that they are either program administrators or insurers. They are not on your side. When you call Workcover or ICWA, you get to talk to a support officer who may not have sufficient legal training to answer your legal questions.

Age plays an important part in how much compensation you receive. It affects your economic loss, your ability to return to work, and the insurance company often argued that age-related degeneration is the cause of your injury.

Most personal injury claims do not go to court. Most personal injury claims settle prior to going to court for a trial. If a matter is going to court, the legal cost often increases exponentially or both sides, the plaintiff (injured person) and the defendant (represented by the insurance company).

In most cases, it costs you nothing to make workers’ compensation claim or any other type of personal injury claim.

Generally Foyle Legal helps injured people to obtain the medical evidence they need to pursue their claim. For example, if an injured person is seeking legal assistance with back injury compensation claim then Foyle Legal would generally assist that person by obtaining medical evidence from their General Practitioner and an Orthopaedic Surgeon.

The average payout for personal injury depends on the type of injury, your age, your income before the injury, your degree of disability and permanent impairment resulting from the accident.

An experienced personal injury lawyer can often provide you with a reasonable estimate on the range of compensation amount you can expect if the solicitor has all the information (e.g. medical evidence). The other side’s resistance also plays a big role in the likely compensation payout amounts for a car accident or workers’ compensation claim. This is a very subjective factor, although there some patterns in behaviour, it is challenging to predict what will happen to your claim. Therefore, it is important to engage an experienced personal injury lawyer to ensure you are equipped with the knowledge, experience and dedication to handle all situations.

Future economic loss is generally calculated by reference to medical reports and certificates regarding a compensation claim. The amount of money available varies depending on the type of claim. For example, the compensation available for a car accident/motor vehicle common law claim or a public liability claim is much higher than the amount available for a workers’ compensation claim.

In a workers’ compensation claim the amount available for bodily injury is calculated by reference to a person’s whole person impairment.

In the year ending 30 June 2021, the maximum amount payable to an injured worker for weekly payments and permanent impairment compensation (which can only be extended if a person is permanently totally incapacitated) is $235,971.00.

Each part of the body has a set percentage of the prescribed which is used to calculate the amount payable. Consider the following example:

“Bob works as a tradesman. He is lifting a bucket of sand when he suffers a back injury to his lumbar spine. Bob is assessed as having an injury pursuant to Schedule 2 of the Workers Compensation and Injury Management Act 1981 being Item 76 – Impairment of the back (thoracic spine or 75% lumbar spine or both). The maximum amount payable in the year ending 30 June 2021 is $176,978.00. An approved medical specialist assesses Bob as having a 15% impairment. Therefore, his permanent impairment benefit is $26,546.70″

In a car accident case amounts for general damages (non-pecuniary loss) are assessed as percentages of the worst-case and the maximum amount in the year ending 30 June 2020 is $432,000 (100% of the worst case).

In a common law claim regarding an injury at work, a legal action regarding public liability and medical negligence claims there is technically no limit to the amounts for general damages (non-pecuniary loss). A judge will generally use precedent to set the amount paid to an injured person.

General damages (non-pecuniary loss) includes pain and suffering, loss of enjoyment of life and loss of amenity. It is often referred to as non economic loss.

In a trial regarding personal injury, the Plaintiff (injured person bringing the claim) will usually give evidence regarding the nature and extent of their injuries. The Plaintiff will undergo cross-examination (questioning by the Defendant’s lawyers). A judge will decide whether they believe what the injured person is saying about all of the evidence.

Often, a Plaintiff will call ‘lay witnesses’. These are usually family, friends, and the Plaintiff’s employer who can give evidence about the injured person, their need for care services, and their future employability.

In most cases, the most convincing evidence comes from an injured person‘s treating doctors, physiotherapists, psychologists and other allied health workers. Still, it is prevalent for evidence to come from medico-legal providers who have reviewed the injured person.

In most cases, a lump sum payment is negotiated between the Plaintiff and Defendant or in the case of a workers’ compensation claim between the workers’ compensation insurer and the worker.

How the negotiations take place is often by correspondence (sending emails or letter). Still, settlement can be agreed at an ‘informal conference’ which is a meeting between the injured person and insurer which occurs outside of court proceedings or WorkCover proceedings.

A settlement can also be agreed at a meeting (such as a pre-trial conference, Conciliation Conference or Pre-Arbitration conference. These hearings are part of a formal WorkCover process or District Court process.

Compensation for past economic loss is usually quite easy to calculate. Settlements are generally taxation free, so it is customary to use the net rate of pay to calculate economic loss. The amount claim is usually calculated using the following equation:

[Net weekly earnings] x [weeks of economic loss period] = [Claim for Economic Loss]

Interest can also be claimed on past losses.

Future economic loss is more complicated. The positions taken by the parties are usually informed by the actions of the injured person (e.g. returning to work), earnings in the past and medical evidence.

Generally, injuries (and the people who have the injuries) are very different. Hence, most of the time, it is unhelpful to compare injuries, even injuries arising from the same circumstances as the progress and outcome will be quite different.

Compensation payout calculators are not accurate. These calculators assume that two people with the same injury will have the same outcome. They will not.

At Foyle Legal, we have clients with different injuries, from minor injury to catastrophic injury. They all need to be treated differently. There is no one size fits all solution!

Whilst settlement offers can be made orally this is relatively uncommon. Generally, an approach to the relevant insurer or their solicitor will be made in writing or as part of an informal conference, pre-trial conference, or a WorkCover WA Conciliation Conference or Pre-Arbitration Conference.

Generally, an injured person should not consider settling their personal injury claim until their condition has medically stabilised.

Medical stabilisation often occurs approximately one year from the date of injury or one year from the most recent significant surgical intervention (e.g. fusion surgery, knee replacement microdiscectomy).

It is common for the insurer to make an early offer of settlement but consider the following example which demonstrates the dangers of taking a lump sum settlement to early.

“Ben works as a jockey. One day, while riding his horse, the horse rears up, throws ben from the horse, and then lands on Ben’s pelvis. Ben can no longer maintain an erection and has significant scarring in his urethra. Ben is in significant pain and is sick of workers’ compensation. Ben calls the workers’ compensation insurer and asks for a settlement. Ben is offered $40,000.00, which he accepts. After settling his claim, Ben learns he still has the same injury and is advised by his urological surgeon that he requires surgery to fix his condition costing $70,000″.

A settlement is a lump sum compensation amount in full and final compensation payment of any incident or injury claims. Accepting a settlement will generally preclude or bar a person from claiming the same injury.

All workers’ compensation and common law damages claims against your employer, or their insurer, for the injury and any aggravations or recurrences, will be finalised.

Your claim and entitlements to receive weekly compensation payments and other workers’ compensation benefits, such as payment of medical expenses, will cease either immediately or at a time agreed by the parties.

Your future treatment and other expenses relating to this injury will be your own responsibility and cannot be claimed against your employer or their insurer and may not be able to be claimed against Medicare or on private health insurance.

You may be precluded from receiving benefits from Centrelink, for a period of time, due to the settlement. Such a period of time will be determined by Centrelink. If you have been receiving Centrelink benefits, you may have to repay some or all of them.

Any medical expenses, including any hospital expenses, for any medical treatment that you have received (including surgery), which are outstanding will be your own responsibility and cannot be claimed against your employer and their insurer

If liability is accepted for a car accident or workers’ compensation claim a settlement is generally calculated based on the evidence regarding the nature and extent of the injury, loss of work capacity (need for weekly payments of compensation), medical treatment, and other services.

Sometimes when claims or not accepted or an insurer indicates they should not be liable for a claim, then it is common for offers of settlement to be made on a ‘commercial basis’ which often corresponds with the irrecoverable amount the insurer will spend on legal fees and disbursements in defending the claim.

Compensation claims are very complicated. You should obtain legal advice before making an offer of settlement.

The most important step in maximising your personal injury settlement is to hire an experienced compensation solicitor. Once you have the right legal representation on your side, please be sure that you follow the legal advice, keep track of your medical expenses, and attend medical appointments and other appointments relating to your compensation claim.

Generally, a personal injury settlement is not considered income and you don’t need to pay tax on the compensation money you received.

A settlement is usually paid by cheque or electronic funds transfer.

In workers compensation claims the settlement process is lengthy and often takes in the vicinity of 8 weeks as it usually necessary for the parties to complete a settlement deed, and then submit the settlement deed to WorkCover.

At or around the same time that you are paid your compensation, the insurer will pay 10% of your total settlement (inclusive of legal costs and disbursements like medical report fees to Medicare.

After that, Medicare will send you a Notice of Past Benefits. They will ask you to select the services that relate to your personal injury claim.

After Medicare receives the Notice of Past Benefits they will assess whether there is an amount payable to Medicare and in most situations, a refund will be sent to you;

If you have received Centrelink benefits, then Centrelink may have some recovery from your personal injury case.

In circumstances where a Medicare Notice of Charge (a document stating how much is owing to Medicare) is not available at the time of settlement pursuant to Section 33B of the Health and Other Services (Compensation) Act 1995 a compensation payer or insurer will usually make an advance payment to the Commonwealth in respect of the compensation payable under a judgment or settlement. The advance payment must be an amount equal to 10% of the amount of compensation payable under the judgment or settlement (this includes legal costs and disbursements such as medical reports and court filing fees).

If a compensation payer or insurer makes an advance payment, Medicare must give to the compensable person a written notice setting out the total amount of eligible benefits paid by the Commonwealth in respect of services and care rendered or provided in the course of treatment of, or as a result of, the compensable person’s injury. In most cases, the Notice of Past Benefits is required to be given within 3 months after receiving notice of the intention to make an advance payment or the advanced payment being made.

If the advance payment is less than the amount of the advance payment, the difference is payable by the Commonwealth Government to the compensable person. This amount is payable on the last day that Medicare is required to give the notice to the compensable person. In most cases, this is 3 months after receiving notice of the intention to make an advance payment or the advanced payment being made.

In very unusual circumstances the amount owing to Medicare will 10% advance payment and an amount will be payable to the Commonwealth Government. The vast majority of cases receive a significant refund.

If a compensation payer is liable to pay compensation to a claimant or a determination has been made that compensation is payable to a claimant and the claimant has received a compensation affected payment either for a periodic period or a lump sum then Centrelink may give the compensation payer a notice that Centrelink proposes to recover from the compensation payer the amount specified in the notice.

The compensation payer will normally pay this amount before paying any compensation to the claimant. The amount to be paid is subject to rules that are difficult to understand. Centrelink provides an estimate calculator, but claimants should be aware it is often inaccurate.

Should you have, any questions about this feel free to contact Medicare Compensation Recovery on 132 127 or Centrelink Compensation Recovery on 1800 777 653. If you are overseas, you can call +61 3 6216 0864.

Offers of the settlement are usually made as a ‘Calderbank offer’ or by Order 24A Offer of Settlement.

Calderbank Offers

A Calderbank offer is an offer of settlement made by one party to another to resolve the dispute. It must be a genuine compromise open for a reasonable period of time. An important feature of a Calderbank offer is that it is made ‘without prejudice, save as to costs’. This means that neither party can present the offer as evidence in court, except when determining which party must pay costs and the amount of those costs.

Calderbank offers aim to prevent settlement offers from being rejected unreasonably. Further, these offers can help avert unnecessary litigation. These offers also assist the Courts by providing an added incentive to settle outside of Court.

A court may feel your rejection is unreasonable if an offer is a reasonable compromise, expressed clearly and precisely. If this is the case, the court may order you to pay the other party’s court costs.

Suppose you do not accept the offer and proceed to a trial where you obtain a judgment on the claim not more favourable than the terms of the offer. In that case, the court may order that you be entitled to an order against the Defendant for your costs regarding the claim up to and including the day the offer was made. The Defendant shall be entitled to an order against you for the Defendant’s costs thereafter.

Order 24A Offer of Compromise

An Order 24A Offer of Compromise is an offer of settlement made on a specific court form by one party to another in an attempt to resolve the dispute.

Suppose you do not accept the offer and proceed to a trial where you obtain a judgment on the claim not more favourable than the terms of the offer. In that case, unless the Court otherwise orders, you will be entitled to an order against the Defendant for your costs regarding the claim up to and including the day the offer was made. The Defendant shall be entitled to an order against you for the Defendant’s costs thereafter.

The rationale of the workers’ compensation system is to facilitate workers returning to work.

A worker is classified as partially fit for work, and they have an obligation to participate in a return to work program. During this time, workers will generally have restricted hours of work, days of work or restrictions or modifications to their duties. Whilst on a return to work program, weekly payments of compensation will continue.

Workers should be aware that payments by the workers’ compensation insurer will come to an end if they ‘return to work’, which has a technical meaning set by legal precedent which is broadly ‘return to work as a settled member of the workforce without the need for workers’ compensation.

Generally speaking, a common law claim takes a longer time to resolve than a workers’ compensation claim. Generally, the amount the claim is the worth and possible payout is higher, and the issues are more complicated as there is a greater focus on the percentage impairment (whether the injured person has a permanent impairment of not less than 15%) and on whether there is negligence associated with the injury.

A WorkCover Approved Medical Specialist (AMS) conducts a permanent impairment assessment in a workers’ compensation claim. The AMS will assess your level of whole person impairment having regard to the American Medical Association Guide to the Evaluation of Permanent Impairment and the WorkCover WA Guides to the Evaluation of Permanent Impairment. See ‘how much can I get for my bodily injury above.

Whiplash injuries usually occur as a result of a car accident. In a motor vehicle accident claim, there are limits on the amount that you can be awarded for general damages (non-pecuniary loss). In the event that damages for general damages are assessed at less than $22,500.00 (correct as at early 2021) the injured person will receive nothing for general damages. This roughly corresponds to 5% of the worst case.

A medical negligence claim is a claim arising from the negligence of a doctor or other medical providers, such as a chiropractor or physiotherapist.

Section 5PB of the Civil Liability Act 2002 relevantly, states that:

“An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice.” Please note this arduous provision does not apply to an act or omission of a health professional in relation to informing a person of a risk of injury or death associated with the treatment proposed for a patient or a foetus being carried by a pregnant patient; or a procedure proposed to be conducted for the purpose of diagnosing a condition of a patient or a foetus being carried by a pregnant patient.

Generally, in motor vehicle claims, workers compensation claims, public liability claims and medical negligence claims, the insurer will make a contribution towards legal costs over and above the settlement amount. Generally, this covers most of the legal costs payable by the injured person.

In criminal injuries, TPD and income protection claims the costs are paid by the injured person directly.

It is rare for injured workers to be ordered to pay legal costs in a workers compensation case. Section 264(5) of the Workers’ Compensation and Injury Management Act 1981 states that “

“A dispute resolution authority is not to order the payment of costs by a worker unless the dispute resolution authority is satisfied that the costs relate to an application made by the worker that was frivolous or vexatious, fraudulent or made without proper justification.”

Generally, in motor vehicle claims, workers compensation claims, public liability claims and medical negligence claims if you lose your case you will be ordered to pay the legal costs and disbursements of the Defendant.