Injured in a motor vehicle accident at work? Do you claim workers' compensation or road accident compensation?
This seems like a straight forward question. If you have a motor vehicle accident injury while you are at work most of us would assume that your employer is required to assist and that you would just lodge a workers' compensation claim. Unfortunately it is not always that simple and how you proceed can depend on a number of legal factors such as: your employment contract, whether you are self employed, your relationship with your employer and whether the accident was caused by another road users' negligent driving.
Given this information you need to decide whether you should you make:
- A workers' compensation claim;
- A road accident compensation claim against the negligent driver involving the Insurance Commission of Western Australia; or
- Proceed with both claims?
Before making any decisions regarding how you might claim compensation in these circumstances it is vital that you obtain legal advice from a specialist personal injury lawyer to ensure that you claim for ALL the compensation you are entitled to receive.
We usually recommend making a motor vehicle injury and a workers' compensation claim at the same time.
In situations where a worker is injured in a motor vehicle accident, Separovic Injury Lawyers will often advise that in order to fully protect the workers' legal entitlements to compensation both a workers' compensation and a motor vehicle accident compensation claim should be lodged and processed simultaneously. Where both a workers' compensation and motor vehicle accident injury claim are made simultaneously it usually enables the worker to receive two lump sum payments. The first lump sum payment involves settling and finalising the workers' compensation claim and the second lump sum payment involves settling and finalising the claim against the negligent driver and involves the Insurance Commission of Western Australia.
Why might you lodge a motor vehicle compensation claim if you are injured while working?
Essentially, so that you receive full common law damages where you generally receive a larger amount of compensation than what you are entitled to receive in just your workers' compensation claim.
If a worker is injured due to the negligent driving of another party, the worker may be able to bring a common law damages claim against the negligent driver. In these situations the Insurance Commission of Western Australia will be required to pay common law damages to the injured worker in addition to fully refunding the workers compensation insurer who previously paid the injured worker’s weekly compensation payments and treatment expenses.
In contrast to other Industrial work accident negligence claims, when the injury arises from another driver's negligent driving, the injured worker does not have to be assessed as having a 15% or higher Whole Person Impairment in order to be eligible to make a common law damages claim.
Most importantly, in these claims, the amount of common law damages that can be awarded is uncapped and in the vast majority of cases a larger amount of compensation will be payable to the worker, than what the worker receives by way of just workers' compensation payments.
If you are injured in a motor vehicle accident while working, how could a workers' compensation claim assist you?
If a person is injured as a result of a motor vehicle accident whilst they are carrying out their duties as an employee, they are legally entitled to make a workers' compensation claim regardless of whether they were totally or partially at fault for the accident. In contrast to motor vehicle accident compensation claims, you can be entirely at fault for the accident and still be able to make a workers' compensation claim.
It is also important to note that the workers' compensation system has been designed to provide injured workers with financial support within a relatively short time frame following the accident. Here, the insurer is required to make a decision as to whether they will admit the worker's compensation claim within 14 days of having received the application.
Once a workers' compensation claim has been admitted by the insurer the injured worker will start receiving:
- regular weekly compensation payments in place of their usual wage while certified unfit for work; and
- medical treatment expenses including payment for surgery if required.
In contrast, in motor vehicle compensation claims there is often a delay in receiving compensation and the majority of compensation is paid at the end of the claim in the form of a final lump sum payment.
Again, in contrast to the motor vehicle accident compensation system, the potential value of a workers' compensation lump sum payment can vary significantly and is attributable to a range of factors including whether the worker has returned to work, how their treatment has progressed, whether they have been permanently impaired and how much they were earning at the time of their accident.
What are the next steps and how can Separovic Injury Lawyers assist?
As we have identified, being injured in a motor vehicle accident while at work can involve some complex legal issues and it is important to get specialist personal injury legal advice as soon as possible. Separovic Injury Lawyers takes great pride in providing comprehensive, free and no obligation advice to injured workers. Our team regularly deal with clients that have multiple compensation claims against a range of different parties. In these cases it is essential that you obtain detailed legal advice that addresses your very specific set of circumstances.