If you’ve been injured in a workplace accident, chances are you have made a workers compensation claim through WorkCover, Queensland’s largest workplace injury insurer.
At the end your rehabilitation, the claim is usually closed by WorkCover sending you to a doctor for an independent medical examination (IME) and then issuing you with a Notice of Assessment. The notice quantifies your injury with a score from 0-100%.
This score is your assessed Degree of Permanent Impairment and if your injury is determined to be 1% or higher, the notice will also include a lump sum offer of compensation. The lump sum offers are almost always much lower than what you would be entitled to if you made a common law claim for damages instead (however not everyone is entitled to make a common law claim). So never accept the lump sum offer in your Notice of Assessment without talking to a lawyer first – most injury lawyers will discuss this with you for free.
What your Notice of Assessment lets you do
Weekly benefits and treatment funding stop when you accept the offer or when the 20 business days pass. Psychiatric injuries do not attract the additional lump sum. Get advice before you respond to any offer: how a WorkCover common law claim works.
What happens if your Notice of Assessment lists your Degree of Permanent Impairment to be 0%?
If your independent medical examination and subsequent Notice of Assessment quantifies the impairment from your injury to be 0% (no impairment), you aren’t entitled to a lump sum offer of compensation from WorkCover. However, you might still be entitled to make a common law claim for damages against your employer.
Just because your injury was assessed as part of the WorkCover process as 0% does not mean you don’t have a real or serious injury entitling you to serious damages (money). It is entirely possible to successfully sue for hundreds of thousands of dollars after being issued a Notice of Assessment with a degree of permanent impairment score of 0%.
If you choose to pursue a common law claim, you are entitled to get re-assessed by an expert doctor of your choosing. A good personal injury lawyer would be able to make recommendations on which doctor you ought to see for a more reasonable opinion. We frequently schedule reassessments which can result in an additional 5-10%.
Did you know? Statistically, one out of every five common law claims lodged start with a 0% impairment assessment.
What if your rating is low and you disagree with it?
You do not have to accept the percentage. If you disagree with your Notice of Assessment, you must tell the insurer within 20 business days after it is given to you, and ask for one of two things (section 186 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)):
- A new assessment by a different doctor agreed between you and the insurer. The insurer has 10 business days to decide. If it agrees, the original notice is treated as never having been given. You can only make this request once.
- A referral to a Medical Assessment Tribunal. If the insurer refuses a new assessment, it must refer the question to a tribunal anyway.
Could your rating go down? Yes, and that is the main risk. A new assessment replaces the old one, and a tribunal does not have to agree with you. A tribunal’s decision on a medical question is also generally final (section 515). Someone who has been offered a reasonable lump sum could end up with less.
Is it worth challenging? That depends on what you plan to do next:
- If you intend to take the lump sum, the percentage sets the amount, so a wrong rating costs you directly.
- If you plan to bring a common law claim, a low rating may matter less. It does not stop the claim, and your own doctors can give their own opinion on your impairment as part of it.
- If you are close to 20%, take particular care. Below 20%, you have to choose between the lump sum and seeking damages, and that choice cannot be undone. At 20% or more, you can accept the lump sum and still bring a common law claim (sections 188, 189 and 239).
The 20 business days also matters for your other benefits, because your entitlement to further compensation generally stops once you notify the insurer of your decision on an offer, or 20 business days after you receive it (section 190). Get advice as soon as the notice arrives, and before you reply to it. See how WorkCover lump sums work for what each percentage is worth.
What is a common law claim?
A common law claim is a more formal claim process which can be made by injured workers (after completing the workers compensation rehabilitation process) when their injuries were caused by an unsafe workplace environment or the negligence of their employer. The claim is made against the injured worker’s employer directly.
Commencing a common law claim for damages enables you to obtain your own medical evidence and personal injury lawyers can recommend doctors to you for further assessment who may assess your injuries more fairly and in more detail to support your claim.
You generally have 3 years from your injury to start court proceedings for a common law claim. If your Notice of Assessment is given less than 6 months before that period ends, you have 6 months after the notice instead. A notice of claim and a compulsory conference have to come first, so seeking legal representation early is a smart idea. If you haven’t received a Notice of Assessment, it is also worth considering legal representation to ensure you that you will receive one as Notices of Assessment aren’t always issued by the workers compensation insurer.
Making a Common Law Claim
If you are thinking about making a common law claim for personal injuries resulting from a workplace accident in Queensland, consider taking a free claim check with one of the lawyers at Roche Legal to get an idea of what you may be owed.
Roche Legal are expert workplace injury lawyers who operate on a No Win No Fee basis.