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What is the Difference Between a Workers Compensation Claim and Work Injury Damages Claim

Workers Compensation Claim and Work Injury Damages Claim

If you have been injured at work, you may be wondering what kind of compensation you can claim from your employer or their insurer. Depending on the nature and severity of your injury, you may have two options: a worker’s compensation claim or a work injury damages claim. But what is the difference between these two types of claims, and how do you decide which one is best for your situation? In this blog post, we will explain the main differences between workers’ compensation and work injury damages claims, and provide some guidance on how to choose the right option for your case.

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Eligibility Criteria for Workers Compensation and Work Injury Damages Claims

Workers’ compensation is a no-fault scheme that provides benefits to workers who have sustained an injury, whether physical or psychological, in their employment. This means that you do not have to prove that your employer was negligent or at fault for causing your injury. You only have to show that your injury arose out of or in the course of your employment and that your employment was a substantial contributing factor to your injury.

Some of the benefits that you can claim under workers’ compensation include:

    • Weekly payments for loss of earnings based on the statutory rate of compensation

    • Reasonable and necessary medical expenses

    • Lump sum payment for permanent impairment resulting from your injury (if you meet the threshold of 11% or more for a physical injury or 15% or more for a psychological injury)

    • Domestic assistance (in limited circumstances)

You should make a worker’s compensation claim as soon as possible after your workplace accident, as there are time limits and notification requirements that apply.

Work injury damages is a negligence claim that allows you to sue your employer for damages if you can prove that they were negligent and that their negligence caused your injury. This means that you have to show that your employer breached their duty of care to provide you with a safe work environment and that this breach resulted in your injury.

Some of the damages that you can claim under work injury damages include:

    • Past and future loss of earnings due to the impairment or deprivation of your earning capacity

    • Past and future loss of superannuation benefits

    • Tax paid on weekly workers’ compensation benefits

    • Legal costs and disbursements

You cannot claim medical expenses or pain and suffering under work injury damages.

You can only make a work injury damages claim if you meet the following criteria:

    • You have been assessed as having at least 15% whole-person impairment due to your injury

    • You have received a lump sum payment for permanent impairment under workers’ compensation

    • You have commenced legal proceedings within 3 years from the date of injury (or obtained an extension from the court)

Making a work injury damages claim will end your entitlements under workers’ compensation.

The Claim Process For Workers Compensation vs Work Injury Damages

The claim process for workers compensation and work injury damages is quite different. Here are the main steps involved in each type of claim:

Workers’ Compensation Claim Process

    • Report the Incident: The first step in a workers’ compensation claim is to report the injury or illness to your employer. This should be done as soon as possible after the incident.

    • Medical Treatment: Seek immediate medical treatment. Your employer or workers’ compensation insurance company may have a network of preferred providers that you are required to use.

    • Claim Filing: Your employer should provide you with the necessary forms to file a workers’ compensation claim. These forms must be filled out accurately and completely, and submitted to the insurance company.

    • Claim Investigation: Once the claim is submitted, it will be investigated by the insurance company. They may request additional information or documentation, and they will determine whether the claim is approved or denied.

    • Benefit Payments: If the claim is approved, you will receive benefits that may include medical expenses, lost wages, and disability benefits.

Work Injury Damages Claim Process

    • Report the Incident: Similar to a workers’ compensation claim, the first step is to report the injury to your employer.

    • Medical Treatment: Seek medical treatment immediately following the incident. In a work injury damages claim, you are typically not limited to a specific network of providers.

    • Consult with an Attorney: Because damages claims are more complex, it’s advisable to consult with an attorney. They can help you determine whether you have a valid claim and guide you through the process.

    • File a Lawsuit: Unlike a workers’ compensation claim, a work injury damages claim involves filing a lawsuit against your employer or another party. Your attorney will help you file the necessary court documents.

    • Discovery and Negotiation: After the lawsuit is filed, both sides will gather evidence (a process known as discovery). There may be negotiations for a settlement.

    • Trial or Settlement: If a settlement isn’t reached, the case will go to trial. If you win, you may be awarded damages for medical expenses, lost wages, pain and suffering, and other costs related to your injury.

How do Compensation Amounts Differ?

One of the most important differences between workers compensation and work injury damages claims is the amount of compensation that you can receive. Workers compensation benefits are based on a statutory formula that takes into account your pre-injury average weekly earnings, your degree of incapacity, and your level of impairment. Work injury damages are based on the actual loss of earnings that you have suffered and will suffer in the future due to your injury, as well as other factors such as your age, education, skills, and prospects of employment.

Generally speaking, work injury damages claims result in higher compensation amounts than workers compensation claims, as they reflect your true earning capacity and potential. However, work injury damages claims are also more risky and costly, as they require you to prove negligence and to go through a lengthy and complex legal process. Workers compensation claims are more certain and straightforward, as they do not depend on fault and can be resolved through an administrative tribunal.

Therefore, you should carefully weigh the pros and cons of each type of claim before deciding which one to pursue.


If you have been injured at work, you may have two options to claim compensation: a workers compensation claim or a work injury damages claim. These two types of claims have different eligibility criteria, claim processes, and compensation amounts. Workers compensation is a no-fault scheme that provides statutory benefits for injured workers, regardless of negligence. Work injury damages is a negligence claim that allows injured workers to sue their employer for damages, if they can prove fault and meet the impairment threshold.

The decision to make a workers compensation claim or a work injury damages claim is not a simple one. It requires careful consideration of various factors, such as the severity of your injury, the degree of impairment, the likelihood of proving negligence, and the availability of legal advice. To make the best decision for your case, you should consult a lawyer who specialises in workers compensation and work injury damages claims. A lawyer can help you understand your rights and entitlements, assess your case, negotiate with the insurer and the employer, and represent you in the tribunal or the court.


What is workers’ compensation?

Workers’ compensation is a form of insurance that provides wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee’s right to sue their employer for negligence.

What should I do if I have a job injury? 

Report the injury to your employer immediately. If your injury or illness developed over time, report it as soon as you learn or believe it was caused by your job. Then, fill out a claim form and give it to your employer to open your workers’ compensation case.

What benefits am I entitled to under workers’ compensation? 

Workers’ comp insurance provides five basic benefits: Medical care, Temporary disability benefits, Permanent disability benefits, Supplemental job displacement benefits, and Death benefits.

What resources are available to me for workers’ compensation? 

You can attend free seminars for injured workers at a local DWC district office for a full explanation of workers’ comp benefits. Also, you can make an appointment with an I&A officer and speak to them privately at your convenience.

How can I find out who provides workers’ compensation coverage for my employer? 

In California, all employers are required to either purchase a workers’ compensation insurance policy from a licensed insurer authorized to write policies in California or become self-insured. To find out which insurer provides workers’ compensation insurance for a specific employer, visit the California Workers’ Compensation Coverage website.

How do I know if I am an independent contractor and not covered under workers’ compensation? 

There is no set definition of this term. Labor law enforcement agencies and the courts look at several factors when deciding if someone is an employee or an independent contractor. Some employers misclassify employees as independent contractors to avoid workers’ compensation and other payroll responsibilities.