Workers’ Compensation in Western Australia: The difference between workers’ compensation claims & common law claims?

by Evie Coles on August 18, 2015

Workers’ Compensation Insurance is Compulsory for all Western Australian employers

In Western Australia, the Workers’ Compensation and Injury Management Act 1981 (the Workers Compensation Act) creates a legislative compensation system which exists to assist injured workers to claim compensation for their injuries on a no fault basis.  The purpose of this system is to ensure that injured workers in Western Australia receive assistance with their medical bills, wages and rehabilitation whilst they cannot work or have work restrictions due to their injuries in the course of their employment. It also allows for a system of compensating injured workers for their permanent disabilities upon settlement of their claim.

It is compulsory for all employers in Western Australia to hold workers compensation insurance for injuries their workers may sustain in the course of their employment.

Under the Workers Compensation Act, there are 2 pathways injured workers can follow to seek compensation. By far the more common of the two is a statutory no fault workers compensation claim.

Who is the insurer for injured workers in Western Australia?

When an injured worker makes a claim for workers compensation, the claim is met by the employer’s insurer.

This is unlike the Queensland system where the workers compensation insurer is one government entity, in Western Australia there are several private insurers who offer workers compensation insurance. The approved insurers for workers compensation are:

  • Allianz Australia Insurance Ltd;
  • Catholic Church Insurances Ltd;
  • AAI Limited trading as GIO;
  • Guild Insurance Ltd;
  • Insurance Aust. Ltd trading as CGU Workers Compensation;
  • QBE Insurance Australia Ltd;
  • WFI Insurance Ltd;
  • Zurich Australian Insurance Ltd; and
  • Insurance Commission of Western Australia (RiskCover) Insurance Covering WA State Government Workers

Some of the larger businesses in Western Australia have established their own workers ‘compensation insurance under the Workers Compensation Act, and these employers are called “self-insurers’’. As at 27th of May 2015, there are 26 self-insurers established under the workers ‘compensation scheme in Western Australia, including Aloca, ANZ, BHP, Bluescope Steel, BP Australia, Brambles, CSR, Fletcher Building, Holcim, Inghams, Metcash, Myers, Primary Health Care, St John of Gold Health Care, Wesfarmers, Westpac, Woodside, Woolworths. Here is a link the a full list of self-insurers in Western Australia.

Western Australian injured workers are entitled to a no fault workers’ compensation claim

In Western Australia the Workers’ Compensation Act states that if an injury occurs in the workers employment (subject to various exclusions in the act) they may claim regardless of whether of whether someone else was to blame for the injury.

Statutory benefits that injured workers are entitled to under the Workers’ Compensation Act include:

  • Weekly payments of compensation for any periods of incapacity for work or periods when the worker has work restrictions;
  • Reasonable medical, hospital pharmaceutical and other treatment expenses;
  • Vocational rehabilitation to assist you in returning to your job;
  • Travel expenses associated with medical treatment; and
  • Should the work injury result in a permanent impairment of a body part or function then there will be an entitlement to a payment for that impairment.

The most recent workers compensation ‘prescribed amount’ can be found on the WorkCover WA website.

There a many reasons that an injured worker may choose to “settle” their workers compensation claim. If the injured worker enters into a settlement, they will not entitled to any further compensation under the Workers Compensation Act for the claim. A settlement may include lump sum compensation for incapacity, medical expenses, rehabilitation and/or permanent impairment. A settlement will also prevent workers from pursuing a common law damages claim against their employer.

Workers compensation benefits provide limited statutory compensation

Section 178(1)(b) of the Act states that workers compensation claim is to be made within 12 months though certain exceptions can apply. After a claim is made it runs for an indefinite period of times but the compensation workers receive is limited. Claims are normally settled following stabilisation. This occurs when medical practitioners consider there is no further treatment that can be provided to the worker which will improve the workers injury.

Unlike a workers’ compensation claim, a Common Law Claim for Damages provides compensation for all loss and damage

Common law claims are commonly referred to as a “law suit” against your employer in court. Similar to a statutory workers compensation claim, it is usually your employers’ workers compensation insurer who has to meet this claim.

Unlike a statutory workers compensation claim, which is a “no fault” system, in the case of a common law claim for damages for work injury, injured workers have to prove that their employer was negligent and/or breached a relevant statutory duty that their employer has to them.  In addition, injured worker must obtain an opinion from an Approved Medical Specialist that their level of Whole Person Impairment (WPI) is not less than 15%.

If it is proven that employer is at fault, injured workers can then pursue limited common law claim or unlimited common law clam. “Limit” means there is a cap in the compensation amount that injured worker is entitled to. Workers with a permanent whole of person impairment of not less than 25 per cent will continue to receive the statutory benefits in accordance with the provisions of the Act, and there is no cap on the amount damages they can receive.

Please note that pursuing a common law claim may affect your workers compensation entitlement. In addition, the above section on common law claim only apply to injury occurred after 15 November 2005.  For more information about common law claim, please refer to WorkCover WA website.

Get the most out of your workers’ compensation claim

On search, you may find several compensation claims lawyers in Western Australia who don’t charge injured workers upfront legal fees, and your first consultation is free if you choose not to proceed. If you choose them to act for your case, they provide no win no fee* legal representation for workers compensation claims.

Evie Coles
Evie Coles is a freelance blogger and she shares well researched information on different issues especially on finance, business and personal laws.

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