Compensation Benefits vs. Damages: what’s the difference?

If you have been injured at work you may be entitled to workers compensation benefits as well as damages (i.e. compensation) if the injury resulted from your employer’s negligence and/or the negligence of a third party.

These two different types of claims are commonly referred to as “workers’ compensation claims” and “damages claims” and it is important to understand the differences between those claims and how they interact.

Workers’ Compensation Benefits

If you have suffered an injury, illness or disease at work you may be entitled to lodge a claim with your employer’s workers’ compensation insurer (this will usually be WorkCover Queensland, but there are some employers who are self-insured).   

A work injury may be a completely new injury, but can also include an aggravation or deterioration of a pre-existing injuries or diseases caused by your work.

You don’t need to prove that your employer was at fault to make a workers compensation claim. You just need to show that:

• You are a worker;

• You suffered a personal injury;

• You suffered the injury in the course of [your] employment (there are some exceptions to this requirement, for example, if you are involved in a motor vehicle accident whilst driving to or from work); and

• Your employment was a significant contributing factor to the injury.

If eligible, you may be entitled to the following statutory benefits:

• Medical and hospital expenses

• Rehabilitation costs

• Weekly benefits for lost wages

• Reimbursement of some out-of-pocket expenses such as medications and travel for appointments

• Lump-sum compensation for permanent injuries

When should you lodge a claim for compensation benefits?

Generally, an application for workers compensation must be lodged within 6 months of suffering the injury; however, the workers’ compensation insurer may be able to waive this time frame in particular circumstances. For example, if the injury was sustained over a period of time and you were not assessed as being unfit for work (whether partially or totally) straight away the insurer may elect to accept the application provided it is lodged within 20 business days of that assessment taking place. 

The statutory benefits claim will only continue until your injuries are ‘stable’. At that point, you are entitled to be assessed by the insurer to determine whether you have suffered any degree of permanent impairment and, if so, be offered lump-sum compensation. The offer is made in a document called a ‘Notice of Assessment’.

It is really important that you seek legal advice immediately upon receiving a Notice of Assessment because:

• if you need to challenge the medical assessment determining your degree of impairment you only have 20 business days to do so;

• if you accept the lump sum compensation it may forever prevent you from pursuing a damages claim.  

Damages Claims

If you can establish negligence on the part of your employer and/or a third party, and that negligence was the cause of your work injury, you may also be able to pursue a damages claim.

The types of damages you may be able to recover are: 

• General Damages (which includes pain and suffering);

• Past loss of income if your injuries prevented you from working at your full capacity, or at all

• Future loss of income arising from any reduction in your capacity for work due to your injuries

• Loss of superannuation

• Past and future medical and rehabilitation costs;

• Out of pocket expenses such as travel and medications.

When should you lodge a claim for damages?

There are strict time limits for pursuing a damages claim against your employer in Queensland. You must serve a compliant Notice of Claim for Damages on your employer and its workers’ compensation insurer within 3 years.

In some cases, it is simple to identify the date the 3-year time limit commences (e.g. where the injury is suffered in a single incident on a specific date), but that is not always the case. It is therefore important to obtain legal advice as soon as possible after suffering a work injury to ensure you receive time limit advice as early as possible.

There are some circumstances under which the 3-year time limit can be altered or extended; however, this can be a complex question and we recommend you seek advice.

Even if you think your claim might be out of time, it is always worth seeking legal advice to make sure there are no options available to you. Give our team at Southside Legal a call today.