Have you received a Form 36 from the workers compensation insurer? If you have a liability accepted claim the employer must forward to you a Form 36 Notice to Worker about Termination Day for Election, approximately 6 months from the Termination Date.
The Termination Date is the date one year from the date you claim for weekly compensation payments was made. It is the date that you must elect to pursue a common law claim by. A common law claim against your employer is a claim alleging negligence for failing to provide a safe system or work, thereby causing your injury. Such claims are generally litigated in the District Court of Western Australia.
Before you can pursue common law damages, you must;
1) Have a whole person impairment assessed by an Approved Medical Specialist of at least 15%, arising from the injury and;
2) Have an arguable case in negligence against your employer, and;
3) No later than the Termination Date, file an election, and have your whole person impairment recorded by WorkCover WA and;
4) Commence legal proceedings against your employer.
This area of the law is complex and has strict time frames which must be met. If you miss your Termination Date you will lose your right to make a common law claim.
There are also circumstances under which you are able to extend your Termination Date. The purpose of the Form 36 is to advise you of your Termination Date and your basis right to pursue a common law claim. Your employer or workers compensation insurer will not advise you any further with regards to a common law claim. If you have received a Form 36, it is strongly recommended that you seek legal advice to have your rights and entitlements explained fully to you, before it is too late.