Am I Entitled to a Claim?
All workers in the mining industry in WA have workers’ compensation rights.
The definition of a ‘worker’ under the law is broad. It generally covers persons engaged under a contract of service. Even some sub-contractors, part-time workers and casuals can claim entitlements. Even if somebody is engaged under a contract labelling them an independent contractor, this does not mean that at law they may not be considered a “worker” for the purposes of workers’ compensation. The Courts will always look at the facts and may decide the person is a worker. The Court will look at whether the person was dependant on the employer for suppling work, whether direction was given in relation to how to carry out the work and whether the employer supplied the person with equipment etc.
For an injured worker to be entitled to make a claim through a workers’ compensation lawyer, the accident must have occurred during the course of employment. Thus the employee must not be on a ‘frolic of their own’. In most situations a person is not entitled to a claim if they are injured on their way to work. However, quite often in the mining industry, it will be a part of the worker’s duties to travel to work sites. If an accident occurs on the way to a work site in a work vehicle, the worker may be entitled to workers’ compensation. It comes down at the end of the day to determining the scope of the worker’s employment.
In the mining industry, as well as quite commonly in the oil and gas industry and particularly on oil rigs, there will be emergency situations, such as mechanical breakdowns, fires or even explosions. In those circumstances it may be necessary for a worker to come to the aid of another. It has been held that a worker who is injured whilst acting in the course of an emergency at work and who may be performing activities that do not necessarily form part of their normal duties will still be entitled to compensation.
Do I Need a Workers’ Compensation Lawyer?
Specialist advice is essential to a person who is injured during the course of their employment in the mining industry. Quite often, when an accident occurs in the mining industry, the injuries sustained are more serious than injuries sustained from accidents in other industries. Common injuries in the mining industry include crush injuries, amputations, burns, fractures and torn tendons.
The serious nature of injuries sustained is commonly due to the dangerous inherent risks that come with working on a mine site as it is more common for workers to be using dangerous and heavy duty equipment, operating explosives and being exposed to dangerous chemicals. Often shifts are 12 hours long, the worker is exposed to the elements of working in the sun or underground with no natural light. It’s no secret that mining is a high-risk industry!
Injuries that do not occur immediately following an accident but rather have a gradual onset are also claimable. The law requires the employment to be a “significant contributing factor” to the onset of the condition. Conditions can include strain, over-use or stress-related conditions and conditions developed through the inhalation of fumes and gases etc. (It is quite common for truck drivers in the mining industry to gradually develop back problems due to driving on bumpy, rough and uneven surfaces). The law protects workers who develop injuries in this manner. It is important that specialist advice is obtained if your injury had a gradual onset.
Quite often after a workplace accident a worker will experience psychological symptoms. As to whether the psychological condition is a claimable injury or not depends on whether the psychological injury was a primary or a secondary injury. An example of a primary injury is where a worker witnesses a rockfall in an underground mine and sees his colleague being crushed and killed by the rockfall. He then sees flashbacks of his colleague being crushed, can’t sleep and becomes anxious/depressed. This is a primary psychiatric injury which is claimable.
An example of a secondary injury is, a worker sustains a fracture to the vertebrae which renders him unfit for work for a significant period of time which stops him from being able to participate in his favourite sport of cricket. As a result of being in pain, not being able to play his favourite sport and socialise, he becomes severely depressed and is diagnosed with severe depression. The psychological injury of depression is a secondary injury. Once again, this is a technical area and expert advice is vital.
It is also extremely important to note that often a separate claim can be made against a third party for negligence arising out of the same accident. A claim for negligence will not be subject to the financial restrictions contained in the workers’ compensation legislation and hence legal advice should be obtained on making a negligence claim.
What Compensation Am I Entitled To?
What compensation you are entitled to will depend on whether you have a statutory claim, (where your settlement may involve a redemption (payout) of your statutory entitlements) or a common law claim for negligence which involves a lump sum damages payout.
Whilst the worker is unfit for work (or partially unfit for work) they will be entitled to weekly workers’ compensation payments. After the first 13 weeks, the weekly rate is automatically reduced. If you are certified fit for work or there is a suggestion that your unfitness for work no longer relates to your injury, you may be issued with a Notice advising that your weekly payments are going to cease.
There are statutory limits on the total amount of workers’ compensation weekly payments that must be made during the life of a claim. Quite often workers in the mining industry have high salaries which reflect the high risk their positions demand. As a result, the prescribed maximums can be exhausted quickly which then leaves the worker with no weekly income which can be financially devastating.
It is essential that such claims be monitored by a specialist worker’s compensation lawyer who can regularly assess how much has been paid from time to time. It is possible to apply for additional provision under certain circumstances, normally where the worker’s disability results in ‘permanent total incapacity for work’. Legal assistance is highly recommended for an application of this nature.
A redemption of a statutory claim may include:
- future weekly payments;
- future medical treatment expenses;
- vocational rehabilitation expenses;
- Schedule II lump sum amount, in accordance with the permanent impairment rating given by an approved medical specialist;
- travel expenses; and/or
- a contribution towards legal costs and disbursements.
Common Law Claim
A worker can make an election to pursue common law damages against an employer if (a) there has been negligence on behalf of the employer and (b) if the person as a permanent impairment rating of at least 15%.
As injuries sustained in accidents in the mining industry tend to be serious, a common law claim becomes more relevant than in other industries. It is essential that specialist advice is obtained on whether the worker should pursue a common law claim as electing to pursue a claim has serious implications.
A worker will have 12 months from the date of injury to make the election. It is essential that the termination date to make the election is noted as once the 12 month period has expired, the worker loses all rights to pursue a common law claim and their claim will be restricted to a statutory claim only. An extension of time is possible but legal assistance will be required and it is preferable not to bank on a successful application.
Common law workers’ compensation claims face unique complexities and serious consideration needs to be given to, for example:
- is the correct Defendant being sued? Sometimes the employer is not the ultimate controller of the workplace, particularly in relation to mine sites;
- ensuring particulars of negligence are correctly pleaded and there is a strong case for arguing liability by the employer, otherwise proceedings can entirely fail;
- ensuring the applicable legislation has been identified, e.g., whether it’s the Occupational Safety & Health Act 1984 (WA) or the Mines Safety and Inspection Act 1994 (WA) which imposes a non-delegable duty of care to those in charge of mining operations or whether some other specialised mine-specific legislation applies; and/or
- whether the worker would obtain a better settlement from a statutory claim or from a common law claim.
These are technical matters and should be assessed by a specialist workers’ compensation lawyer.
A common law settlement may include the following damages:
- compensation for your General Damages – i.e., for your pain, suffering and loss of enjoyment of life (i.e., with a pure statutory claim, a workers pain and suffering is irrelevant);
- medical expenses;
- future medical treatment expenses;
- loss of earnings;
- future loss of earnings;
- past & future superannuation;
- travelling expenses; and/or
- a contribution towards legal costs and disbursements.
If you have been injured in an accident do not delay in obtaining legal assistance.
We offer free initial phone advice on 9254 0013. Your first consultation is free if you decide not to proceed. Usually we do not require any payments up front and we may even be able to help you with paying filings fees in the Court and for medical reports.