Please note that this blog is no longer relevant due to legislative changes that were enacted in 2020. We are often asked about how the workers' compensation system operated before this change and thought that it was appropriate to continue to host this blog for reference purposes. If you would like to learn about the legislative amendments that changed the workers' compensation termination date you can read about it here.

What is a 'Form 36 Notice to Worker About Termination Date for Election'?

If liability in your workers' compensation claim has been admitted, a Form 36 Notice to Worker About Termination Date For Election should be sent to you by your employer or their insurer. The purpose of the Form 36 Termination Date Notice is to inform you that, if you intend to make a common law damages claim, you must elect to do so prior to the Termination Date. The Form 36 Termination Date Notice is sent approximately 26 weeks before the Termination Date. 

A Termination Date sounds scary. What does it really mean?

Put simply, the Termination Date is the date, 12 months from the date on which the injured worker lodged their workers' compensation claim with their employer. Particular importance is placed on the Termination Date as it is the date by which you must elect to pursue a common law claim against your employer.

Contrary to common misconceptions the Termination Date is not:

• the date when injured workers that are receiving workers' compensation are terminated from their employment;
• the date when injured workers receiving regular workers' compensation payments have their payments cut;
• the date when a workers' compensation claim is settled or finalised; or
• the date by which all treatment in regards to a workers' compensation claim must be completed.

When do Termination Dates not apply?

Termination Dates do not apply:

• if you are making a claim for specified industrial diseases like asbestosis, pneumoconiosis, lung cancer, diffuse pleural fibrosis or chronic bronchitis. Different rules apply to these types of claims and specific clauses in the Workers' Compensation and Injury Management Act 1981 are applied in these cases;   
• in a work related motor vehicle accident claim, where the accident occurs due to the negligent driving of a person other than the injured worker;
• when suing any other (third party) entity which is not the employer; and
• when the whole person impairment assessment arising from the work injury is less than 15%.

Extending the Termination Date

Termination Dates can be easily extended by a further 12 months, making the total period 2 years within which to elect to make a common law claim. This is, however, on the proviso that the worker has seen an Approved Medical Specialist before the first 12 months expires and the doctor certifies that the worker's injuries have not stabilised.  

It is highly advisable to engage an experienced personal injury lawyer well before the Termination Date expires to ensure that all of the technical requirements of the legislation have been complied with. Failure to do so could result in the worker suffering a significant loss, in some cases in the hundreds of thousands of dollars. 

What is a common law claim?

A common law claim can be made against your employer (or relevant third parties), and is made in addition to a 'standard workers' compensation' claim made through the Workers' Compensation and Injury Management Act 1981. In order to make a common law claim you must have a whole person impairment assessment of 15% or above and it must be proved that negligence in failing to maintain a safe workplace caused your work injury or illness.

The Termination Date imposes a strict time frame within which common law claims can be made. In order to make a common law claim you must:

• obtain a whole person impairment assessment of at least 15% from an Approved Medical Specialist (this assessment is not required if you are making a common law claim against a third party);
• discuss the circumstances of your injury or illness with a plaintiff injury lawyer and obtain written advice that you have an arguable negligence claim against your employer or relevant third party;
• before the Termination Date lodge an Election to Retain Right to Seek Damages form with WorkCover; and
• work with a plaintiff injury lawyer to commence formal legal proceedings against your employer or relevant third party.

Electing to make a common law claim can impact your workers' compensation claim made under the Workers' Compensation and Injury Management Act 1981 and once you have elected to make a common law claim you are not able to reverse your decision. We strongly encourage you to obtain specialist personal injury legal advice in regards to making a common law claim. 

I understand what a Termination Date and common law claim are but why are they such a big deal? 

Put simply a common law claim is an additional claim that you can make on top of a standard workers' compensation claim. Depending on who the claim is made against and / or your level of whole person impairment, a common law claim can significantly increase (in the hundreds of thousands of dollars) the compensation that may be available to you. In a standard workers' compensation claim the concept of 'no fault' is applied. This means that if the work injury occurs due to the fault of the worker, or the employer, the worker is able to make a workers' compensation claim. In a common law claim the worker needs to prove that the work injury occurred due to negligence committed by the employer or a third party. If you would like clear and down to earth advice on whether you may be able to make a common law claim and how much it may be worth please call Separovic Injury Lawyers without delay. 

Why are there different classes of common law claims?

In Western Australian a number of legislative amendments took effect from 14 November 2005. These amendments changed how injured workers can make common law claims. The new rules require that Approved Medical Specialists use particular permanent impairment tables and methodology to calculate an injured worker's whole person impairment. Particular classes or categories of work injury related common law claims were established and include:

Common Law Claim Against Employer - 15% to 24% Whole Person Impairment 

In this category the maximum compensation that can be awarded to an injured worker, as at 1 July 2019, is $487,308.00 less any workers compensation benefits already paid.

A range of factors can influence the final compensation payment and include how strong the evidence is that negligence caused the accident, whether this evidence is sufficient to prove that negligence caused the accident and also how much in workers compensation benefits have already been received by the claimant.

Common Law Claim Against Employer - Over 25% Whole Person Impairment

In this category there is no artificial limit or cap on the damages that can be awarded. Here, any workers compensation benefits that have been paid through the course of the claim are paid in addition to any final lump sum compensation payment. 

The final damages award will depend on the severity of the injury, whether the injured worker can return to some form of employment and the extent to which the worker has suffered economic loss.

How are common law claims against third parties different?

If it can be established that a safe work environment was not provided and negligence established, an injured worker can make a unrestricted common law claim against a deemed employer, principal, head contractor or third party. In these claims the injured worker does not need to be assessed with a whole person impairment of 15% or above. Importantly here, the damages claim is not artificially capped by workers' compensation legislation and the damages are awarded through the operation of the Civil Liabilities Act 2002.   

Received a Form 36 Notice to Worker About Termination Date for Election? What are practical things you should you do?

1. If you are represented by a plaintiff injury lawyer inform them immediately that you have received the Form 36 and send them a copy via email;
2. If you are not currently represented you should organise to meet with a plaintiff injury lawyer as soon as possible and request that they provide detailed advice on whether you may be able to elect to make a common law claim;
3. If you are advised that it may be possible to make a common law claim, liaise with your plaintiff injury lawyer and be assessed by an Approved Medical Specialist as soon as possible;
4. Ask your plaintiff injury lawyer to explain how you can get the most out of your appointment with the Approved Medical Specialist; and
5. Ensure that you are able to make the appointment with the Approved Medical Specialist. If there is any reason that may prevent you from making this appointment you should immediately inform your plaintiff injury lawyer.

Seek legal advice well before your Termination Date expires.

As we have explained there are a number of important legal processes that must be completed before an injured worker can successfully elect to make a common law claim. A number of these steps can be time consuming or delayed by circumstances outside of the control of the plaintiff injury lawyer and should be begun at the earliest possible opportunity. Here for example, the injured worker will need to be assessed by an Approved Medical Specialist and in some cases assessment by multiple specialists may be required. 

Once these assessments are completed and the injured worker is assessed as having the requisite level of whole person impairment the plaintiff injury lawyer must then gather and analyse evidence and provide advice on whether there is sufficient evidence to prove that negligence caused the work injury.

Gathering the requisite evidence can often involve taking statements from witnesses, inspecting the site where the accident took place, gaining expert opinion, reviewing CCTV footage and obtaining organisational documentation and considering appropriate legislation and workplace safety standards. Given the importance that these steps are completed in a timely and effective manner it is critical to have a plaintiff injury lawyer working on your common law claim from the earliest possible juncture.  

Recent legal decision which confirms that you should get specialist injury lawyer advice if you want to make a common law claim.  

The case of Reale v Westfarmers Kleenheat Gas Pty Ltd (No 2) (2016) was heard on appeal in the District Court of Western Australia. Westfarmers Kleenheat Gas Pty Ltd ('the Defendant') argued:

• that it had discharged its duties under the Act and provided Reale ('the Plaintiff') with a Form 36 Notice to Worker About Termination Date for Election pursuant to Section 93O of the Act;
• that Reale should not be entitled to damages because she failed to elect in the prescribed manner to retain the right to seek damages as required by Section 93K(4) of the Act which, under Section 93L(4), must be done before the termination day; and
• that the extension of the termination day by the Director was done ultra vires or without the required legal power or authority to do so.

Judge Stevenson DCJ later found that:

• the Defendant's Form 36 Notice to Worker About Termination Date for Election did not comply with its statutory obligation under Section 93O of the Act and was null and void;
• the Director's delegate lawfully granted the Plaintiff's application to extend the termination date on the basis that the Defendant's Section 93O notice was defective because it did not state the correct termination date; and
• the Plaintiff lawfully exercised her right of election under Section 93L of the Act to seek damages as her election was made before the termination date.

This case highlights how important correctly completing relatively simple procedural processes can be to the success of your common law claim, and in fact, whether you are able to make one in the first place. The complications and legal wrangling involved cases like this confirms that making a common law claim can be a complex legal process and that it is prudent to ask a specialist personal injury lawyer to provide you with advice and support on how to do so.  

How can Separovic Injury Lawyers assist you with your Form 36 Notice to Worker about Termination Date for Election?

Separovic Injury Lawyers has over 30 years experience investigating, providing advice on and winning common law claims. Over the years we have successfully settled many common law claims that have involved catastrophic injuries, highly technical or specialised work environments, complex issues attached to proving negligence, involvement of multiple third parties and difficult and disputed contractual arrangements.

If you suspect that your employer or a third party did not provide a safe workplace, may have been negligent and played a part in causing your accident or illness, we strongly encourage you to call us as soon as possible. Our initial advice regarding your potential common law claim will not cost you anything but missing out on making a common law claim could cost you your livelihood.