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WorkCover Claims & Claims for Damages
When a worker is injured in the course of their employment, they are entitled to compensation under the WorkCover QLD "no fault" Scheme or their employers' self-insurance. In some cases, an injured worker may also be entitled to further compensation if their employer, or someone else, has caused their injuries.
The difference between the two claims
There are several differences between a WorkCover claim and a common law claim for damages. However, the major difference is that a WorkCover claim is a statutory claim, which is made before making a common law claim. The statutory claim is "no fault", meaning that the worker does not need to prove who caused the injury.
In contrast, a claim for damages is a common law claim and requires the worker to prove that their employer, or someone else, breached their duty of care owed to them, which also caused their injuries. In addition, the worker may also have to prove that they did not cause or contribute to their own injuries.
WorkCover Notice of Assessment
At the end of a WorkCover claim in Queensland, a worker can ask the workers compensation insurer to arrange for a permanent impairment assessment of their injuries. If there is a degree of permanent impairment (DPI) from the injury, the worker will be offered a lump sum offer payout for their injuries. If there is no DPI (0%), the worker will not be offered a payout.
At this point, the worker must decide if they accept WorkCover's findings or not. This is an important decision as it may also determine if the worker can proceed with a common law claim for damages. A worker who receives a Notice of Assessment for an injury which is less than 20% DPI, must choose between:
- accepting the lump sum offer of compensation; or
- pursuing a common law claim for damages.
A worker who accepts a lump sum offer will be forever prevented from pursuing a claim for damages for that injury.
It is recommended for workers to seek legal advice with respect to a Notice of Assessment, before replying to the lump sum offer and Notice of Assessment.
A worker who is assessed with a degree of permanent impairment of 20% or more, may accept the lump sum offer and pursue a common law claim for damages.
Lump sum offer vs claim for damages
There are a number of issues to be carefully considered when deciding whether or not to accept a Notice of Assessment for an injury which is less than 20% DPI. The damages to which workers are entitled at common law are generally significantly higher than the lump sum permanent impairment payouts. WorkCover will make their lump sum offer based on a medical assessment of your current symptoms and pain only.
WorkCover does not consider the injuries’ possible decline into the future, and any past or future loss the worker has or may suffer. Further, the lump sum offer is the same irrespective of the worker’s age or years of experience in their field of work.
In contrast, a common law claim for damages is tailored to each individual worker. Damages are assessed under a number of “heads of damage”. Depending on the nature and extent of the injuries involved a worker can generally seek damages for past and future losses.
A claim for damages will assess the severity of their injuries, age, experience, qualifications, past loss of earnings and medical expenses as well as estimating your future loss of earnings and medical expenses to minimise the impact of this injury on your life.
A work-related injury can have long-lasting consequences, and the end of a compensation claim doesn’t mean the end of your losses.
How we can help
The Compensation Team at Wallace & Wallace Lawyers are experienced in all aspects of Workers Compensation legislation. If you are dissatisfied with your current representation, our experts can also offer a second opinion.
If you or someone you know has been injured at work or is unhappy with a decision of WorkCover, or you want a second opinion, call us now on (07) 4963 2000 or contact us via our online contact form for practical legal advice on how you should proceed.