Workers can often claim more than just Workers’ Compensation payments. Depending upon the severity of a worker’s injury, and the circumstances of that injury, a worker may be able to claim “Common Law” damages from their employer. The word “damages” is just a legal word meaning “compensation”
Without going into great detail, a Common Law damages claim is usually bigger and better than a Workers Comp claim. But it is also a tougher claim to prove, with a number of hoops to jump through. One of those hoops is the “Termination Day”.
Here is how the Termination Day is defined in the Workers’ Comp Act:
93M. Termination day defined
(1) If a claim for compensation by way of weekly payments has been made wholly or partially with respect to an injury, the termination day for an election to retain the right to seek damages in respect of that injury is the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by subsection (3) or under subsection (4).
Not very clear is it? This is the advice that WorkCover gives to workers on its Website concerning the Termination Day:
The termination day is the date at which you cease to be eligible to pursue common law damages. The termination day generally falls one year from the date your claim for weekly payments of compensation was made on your employer, however there are some exceptions. For more information contact Advice and Assistance on 1300 794 744.
As can be seen, WorkCover doesn’t say too much about the ins and outs of the Termination Day, and this is for the simple reason that the law is very complicated. Problems can occur determining when the Termination Day runs from, when it expires, the steps a worker has to take prior to the Termination Day to have impairment assessed, whether the Workers comp insurer has given proper notice of the Termination Day, and whether, and in what circumstances, the Termination Day can be extended.
The issue is a legal minefield. The best thing to do is seek advice, which is what WorkCover recommends. If you want advice on the Termination Day from a lawyer with more than 25 years’ experience with Workers Compensation claims, phone our Free Helpline on (08) 9244 2666.