Can I claim an impairment benefit and compensation for pain and suffering?

Claim an impairment benefit and pain and suffering

The short answer is that yes, in many cases you are able to claim an impairment benefit lump sum as well as further compensation pain and suffering.

However, to properly answer this question we need to look at a few things.

You can visit this page if you want to read more about how impairment claims work.

In a nutshell however, an impairment benefit claim is something that a person is a claim that a injured person is entitled to pursue if they have suffered an injury, illness, or condition related to their employment.

That injury, illness or condition must be stabilised.

This means that it must not be getting any better, not be getting any worse. It has to have plateaued.

Further, the injury, illness or condition must reach a threshold in terms of its severity.

A doctor will assesses the injury, illness or condition and grade it. That doctor put a percentage figure on it.

That percentage figure must reach a set threshold impairment level before you will be entitled to claim any compensation.

One important thing to keep in mind here is that an impairment benefit is considered to be compensation for pain and suffering.

I understand that this can seem a bit odd.

Particularly given that an impairment benefit really just involves a doctor putting a figure on your injury or injuries.

So, you could be assessed as having a 10% whole person impairment rating and another person could be assessed as having a 10% whole person impairment rating.

However, the way that the injury impacts your life might be much more significant than the impact on the other person.

However, speaking in a general sense, the impact of the injury on a persons life does not get taken into account in an impairment claim.

It doesn’t matter whether, for example, you are not able to work anymore and the other person can.

It doesn’t matter that you can no longer play sport and the other person can or that you now struggle to get a full nights sleep and the other person can.

What matters is the whole person impairment rating that the doctor puts on your injury, illness or condition.

Further compensation for pain and suffering

In addition to an impairment benefit claim, some people are able to pursue a common law claim for damages and obtain further compensation for pain and suffering.

You can read about common law damages here.

Unlike an impairment benefit, with a common law claim for damages claiming pain and suffering, you will need to show what impact the injury, illness or condition has had on your life.

So those restrictions mentioned above that were not relevant as far as an impairment claim is concerned, are very relevant when it comes to a common law claim.

For example, you could be assessed as having a 20% whole person impairment rating for the purposes of your impairment claim which is a fairly significant rating.

However, if the injury does not impact your life to a significant degree, in terms of comparing how you were before the injury to how you are now, then it is quite possible that you will not succeed in obtaining any further compensation for pain and suffering under a common law claim.

However, you could be assessed as having a 5% whole person impairment rating when it comes to your impairment claim but be very significantly impacted in terms of your day-to-day activities of daily living.

In this case, you would stand a greater chance of succeeding in claiming further compensation for pain and suffering under a common law claim compared to the example above with the person that got assessed as 20% whole person impairment.

There’s a further two considerations here.

With a common-law claim, you need to show that negligence exists. That is that someone else in some way contributed to your injury.

You do not need to show negligence when it comes to claiming an impairment benefit.

So even if you are very significantly restricted and an injury impacts your life to a very significant degree, if you cannot show that there was negligence on behalf of another party then you are not likely to succeed with your further pain and suffering claim.

The other thing to keep in mind is that if you pursue both an impairment claim and a common law claim for damages and you succeed, anything that you were awarded in relation to your impairment claim will be taken into account in your common law claim.

So if you for example obtained a settlement of $20,000 in your impairment claim and your common law claim is assessed on a pain and suffering basis as being worth $200,000 total, then In a very general sense the $20,000 will need to be deducted off the $200,000 and you’ll be compensated a further $180,000 for your pain and suffering.

Conclusion

Yes, you can claim an impairment benefit as well as Further compensation for pain and suffering in some cases.

In order to claim further compensation for pain and suffering under common law claim, you need to show that negligence exists and that your injury, illness or condition impact your life to a very significant degree.

Important to keep in mind that an impairment benefit compensation amount is considered to be compensation for pain and suffering.

Please keep in mind that the information contained on this page should not be considered legal advice and no content on this site should replace the need to obtain advice tailored to the specific facts of your case. The facts of a case can significantly alter the advice that can provided. This site only provides general advice. Read more here.

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To contact Michael or Peter call 1800 746 442 or email [email protected]

Written by the Work Injury Site team