We often get questions like the following:
"I was injured in a car accident while I was working, so I am entitled to workers compensation benefits. Do I have to claim workers compensation benefits or can I sue the at-fault driver?"
Workers injured while in the course of their employment, usually have to claim compensation through the Workplace Health, Safety and Compensation Commission (the "WHSCC"). In most cases, a worker cannot bring a court action against the person who is responsible for his or her injuries, due to the prohibition contained in the Act.
If you were injured in a motor vehicle accident while in the course of your employment, however, you have the choice of either applying for worker's compensation benefits, or suing the at-fault driver. You may also elect to sue in certain other transportation related accidents such as helicopter accidents.
The decision whether to sue or accept compensation from WHSCC depends on balancing such factors as the likely financial recovery from a lawsuit compared to what you would recover from WHSCC compensation, the risk involved in the lawsuit, and whether the injured client can financially afford to wait out the period of time a lawsuit will take to get any settlement. As a rule, a lawsuit will result in a significantly higher financial recovery, but this depends on a variety of factors unique to each case. You should consult an experienced personal injury lawyer to determine which course of action would be better for you. Our firm provides this type of consultation without charge or obligation.
You can choose to ask the WHSCC legal department to start a court action in your name against the at-fault driver to recover damages, or they may decide to do so when the period of three months (or six months in the case of a death) has passed. Disadvantages are that the client does not control such a court action, and any funds recovered are used first to repay the WHSCC to compensate it for amounts of compensation it has paid or may in the future have to pay to the injured claimant, in addition to administration charges and the fees of the legal department.
Advantages of suing the at-fault driver (instead of making a worker's compensation claim) are that any money recovered would be yours alone and you would be the person instructing the lawyer of your choice. Pursuing the at-fault driver in a court action would also entitle you to claim the full extent of your losses.