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Have you had a workplace injury?

If you sustain an injury at work, it is important that
you undertake the following as soon as possible:

Report the injury immediately to your supervisor.
Complete an incident report.
Make a note of any witnesses to your accident.
Take a photograph of any faulty plant or equipment that caused your injury (if applicable).
Obtain medical attention.
Lodge a workers’ compensation claim
Seek legal advice.

Making a Claim

You must lodge the following documents in order to do so:

1. An Application for Compensation.

This document records the date of your injury, where your injury occurred, how it occurred and the nature of your injuries.

You can download this document from WorkCover’s website: https://ols.workcoverqld.com.au/ols/public/claim/lodgement.wc It is important that you complete this document, not your employer, in order to ensure that the details contained therein are accurate.

2. A workers’ compensation medical certificate.

This certificate must be completed by your treating medical practitioner. It is important that it lists all injuries that you sustained, however minor they may seem.

This includes any psychological symptoms, such as low mood or anxiety, that you suffer as a result of your injuries. | Workers Compensation Insurance.

LODGING A WORKERS’
COMPENSATION CLAIM

You are entitled to lodge a workers’ compensation claim if you sustain a workplace injury.

Requisite Documents

Q: My employer wants me to see their company doctor. What should I do?

A: You can see their doctor. However, it is always best to also see your usual treating doctor, who has your full history on file, and your best interests at heart. Ensure that you tell your doctor precisely what occurred, along with all injuries (however minor) that you sustained.

Q: My employer wants to attend the doctor’s appointment with me. Is this allowed?

A: Your employer does not have a legal entitlement to attend the appointment with you. An appointment with a doctor is personal in nature, and we strongly encourage you to decline any request made by your employer to go into the appointment with you. | Workers Compensation Insurance.

Uploading them to WorkCover’s website

Time Limits

You have six (6) months from the date of your injury to lodge a workers’ compensation claim with WorkCover. If you sustained an injury over a period of time (such as if you developed psychological injuries over the course of several months due to ongoing bullying),

You must lodge a claim within six (6) months from the date that you first consulted a medical practitioner. In the event that your claim is lodged outside of these timeframes, you must provide WorkCover with a reasonable excuse for delay; namely:

there was a mistake;
you were absent from the State; or
there was a reasonable cause.

It is difficult to successfully establish a ‘reasonable excuse for delay’; simply being unaware of the relevant time limits has been found by the Courts to be insufficient. We therefore strongly recommend that you lodge a claim as soon as possible after your injury.

This will mean that all documents are completed as contemporaneously as possible. You will also begin to receive payment for time off work and medical expenses associated with your injuries sooner rather than later. | Workers Compensation Insurance.

YOU HAVE 6 Months

from the date of your injury to lodge a workers’ compensation claim with WorkCover.

ELIGIBILITY FOR WORKERS'
COMPENSATION BENEFITS

Queensland’s workers’ compensation scheme is a no-fault scheme, which means that you do not need to demonstrate that your injuries arose in negligent circumstances (that is, in circumstances where your employer was at fault).

Rather, you will be eligible for workers’ compensation benefits if you meet the following criteria:

You are a ‘worker’
You sustained an ‘injury’
The injury arose out of, or in the course of, your employment.
Your employment was a significant contributing factor to the injury.
Your employment is connected with the State of Queensland

You sustained an injury

An ‘injury’ can include the following:

Physical injuries, such as a fractured ankle or lower back strain
Psychological injuries, such as depression and anxiety disorders
An aggravation of a pre-existing injury or condition
A latent onset injury or condition. This is typically acquired over a period of time but is not immediately obvious, such as asbestosis or mesothelioma.
An ‘over a period of time’ injury, such as industrial deafness, a repetitive-strain injury or psychological injuries that arise over several weeks or months.

You are a worker

You will be considered a ‘worker’ if:

you work under a contract; and
you are an employee for the purpose of assessment for PAYG withholding under the Taxation administration Act 1953 (Cth); in other words, you receive PAYG Payment Summaries from your employer.

Psychological Injuries

The WCRA imposes several additional hurdles for psychological injuries:

Mere dissatisfaction with your employment circumstances does not
amount to an ‘injury’; you need to have been diagnosed with a specific
psychological condition, such as anxiety or depression.
An ‘injury’ does not include psychological injuries which arose out of or in the course of reasonable management action taken in a reasonable way.

What constitutes ‘reasonable management action’ varies depending on the specific circumstances of each case.

Tips

Psychological
Injuries

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You can increase your prospects of successfully lodging a claim for psychological injuries by:

narrowing down the various stressors that contributed to the development of your injuries. For instance, if there were a number of issues that gave rise to your injuries (such as unwarranted criticism, exclusion from certain events etc), try to narrow them down to two or three ‘main’ stressors;
providing WorkCover with a straightforward, concise chronology of the events that led to the development of your injuries; and
providing WorkCover with any statements of support, such as from your co-workers.

The WCRA imposes several additional hurdles for psychological injuries:

An injury will arise out of or in the course of your employment if it occurs in the following circumstances:

At your normal place of employment.
Whilst you are carrying out your work duties at an alternate place of employment (for instance, if you are employed by company X, but are working at a mine site owned by company Y).
If you are travelling to / from work, as long as there has not been a substantial delay or deviation in your journey.
If you are on a recess break (as long as you do not subject yourself to abnormal risk).

Your employment was a significant contributing factor to the injury

There must be more than a tenuous link between your employment and your injury; rather, your employment must be a significant contributing factor to your injury.

Your employment is connected with the State of Queensland

This will generally be straightforward. However, a potential issue can arise in circumstances where, for instance, you are employed by a Queensland-based company but are injured interstate.

When this occurs,

WorkCover will consider various factors

When this occurs, WorkCover will consider various factors, such as:

the employer’s registered address and principal place of business;
your entire work history with your employer;
your intention, and that of your employer’s, in relation to where you work;
the location of work specified in your employment contract;
the location that you regularly attend to report for work, or collect materials/equipment; and
the location where your wages are usually paid.

Example

Ian is employed as a fitter and turner by a mining company based in Queensland, but he only works at the company’s mine site in NSW.

He is employed on a ‘fly-in, fly out’ basis, which means that he works for 7 days in NSW, and then flies home for 5 days. Given Ian only works in NSW, it would likely be considered that his employment is not connected with the State of Queensland. It is not relevant where he spends his time when he is not at work. As a result, Ian would be entitled to workers’ compensation benefits under the NSW scheme, not under Queensland.

WORKCOVER DETERMINES THE APPLICATION

Once you have lodged your claim, WorkCover has 20 business days to determine whether it will accept or reject it.

However, this timeframe may be extended in certain circumstances; for instance, if WorkCover requires additional information or medical evidence to make a decision. As a result, it is common for WorkCover to take more than 20 business days to determine a claim for psychological injuries, given the complexities frequently involved in such a claim. | Workers Compensation Insurance.

WorkCover has

20 Business

Days

To determine whether it will be accepted or rejected.

Decision A

accept the claim

DECISION B

Reject the claim

Decision A

Accept the Claim

Your Entitlements

If your claim is accepted, WorkCover will pay summarized for the following:

1
ANY TIME OFF WORK THAT YOU REQUIRE AS A RESULT OF YOUR INJURIES

WorkCover will pay you weekly compensation for lost wages during the period that you are unable to work due to your injuries. However, you will not receive your full salary. In general, you will be paid a percentage of your normal weekly earnings, which is based on your weekly income from your employment in the 12 months prior to your injury. The calculation of your ‘normal weekly earnings’ is complex. Details of what it includes (and does not include) are summarized below:

Included

Your salary
Overtime
Duties
Penalty rates
Some allowances

Not Included

Superannuation benefits
Allowances that relate to:

travel, meal, car or relocation expenses;
clothing, tools, entertainment and vehicle expenses; and
living away from home

If you are usually paid under an industrial agreement, you will receive the greater of 85% of your normal weekly earnings or the amount payable under the instrument, for the first 26 weeks.
If you are not paid under an industrial agreement, you will receiver 2020 Edition A STEP BY STEP GUIDE Workers Compensation Without The Hassle 16 Speak to A Legal Expert for Free Phone Ayla or Wendy on (07) 3635 7380 for Bookings. the greater of 85% of your normal weekly earnings or 80% of the Queensland full-time adult’s ordinary time earnings, for the first 26 weeks.
This will then reduce to 75% of your normal weekly earnings, or 70% of the Queensland full-time adult’s ordinary earnings.
Your right to continue to receive weekly payments will be reviewed after two (2) years. Your payments may then substantially decrease; for instance, you may receive the equivalent of the ordinary single pension.

This progressive reduction in payments is designed to encourage workers to return to work as soon as possible. Annual and sick leave also accrues whilst you are in receipt of workers’ compensation payments.

2
REASONABLE MEDICAL AND REHABILITATION EXPENSES ASSOCIATED WITH YOUR INJURIES.

What is ‘reasonable’ will be determined by a doctor and may include:

treatment by a General Practitioner (GP), specialist or physiotherapist;
the purchase of equipment such as a wheelchair or crutches; and
medication, such as pain-relieving or anti-depressant medication.

In some circumstances, WorkCover will pay for surgery and hospitalization expenses that you may require as a result of your injuries. However, the need for surgery must be based on medical opinion, and WorkCover may have you assessed by an independent specialist to determine whether the proposed surgery is indeed related to your workplace injury, and necessary due to your workplace injury.

For instance, if you have a pre-existing condition that has been aggravated by your workplace injury, and the surgery is largely designed to address the pre-existing condition, WorkCover will not be required to pay for it.

WorkCover will place more weight on the views of a specialist (such as a neurosurgeon or orthopaedic surgeon) than those of your treating GP.

3
NECESSARY AND REASONABLE TRAVEL EXPENSES, IF YOU HAVE TO TRAVEL MORE THAN 20 KILOMETRES ONE WAY (FOR INSTANCE, TO ATTEND AN APPOINTMENT).

FAQ

I have worked with my employer for less than 12 months. How will my ordinary weekly wage be calculated?

WorkCover can look at the remuneration of another employee, who has worked with the employer for at least 12 months. Furthermore, if you have had more than one employer in the 12 months prior to your injuries, all of your earnings will be taken into account.

My doctor says that I can go back to work, but I have to reduce my hours for several months due to my injury. Will WorkCover still pay my lost wages?

Yes. WorkCover will typically pay you the difference between your ordinary weekly wage and the percentage required to be paid by WorkCover.

Will WorkCover pay my superannuation whilst I am unable to work?

No, WorkCover will not (unless they are required to under any applicable industrial award). However, this can be claimed down the track if you are entitled to bring a common law claim for damages.

WorkCover has declined to pay for surgery on my knee. What can I do?

Ask WorkCover to provide you with a written ‘Reasons for Decision’ in relation to its decision to decline surgery. You are entitled to lodge a review with the Industrial Magistrate’s Court within 20 business days of receiving WorkCover’s reasons. As abovementioned, WorkCover places more weight on the views of a specialist than those of a GP. If you have a treating specialist, it may be worthwhile obtaining an opinion from them (if WorkCover has not already done so) regarding the need for surgery. However, you will likely bear the cost of such a report. It may also be worthwhile speaking with your treating doctor about obtaining a referral to a public hospital or speaking with your private health insurance provider (if applicable) or superannuation fund about whether they can cover the cost of surgery.

Can I schedule my medical appointments during work time?

You should try to schedule your appointments outside working hours. However, if this is not possible, you should provide your employer with as much notice of the appointment as you can.

I injured my knee at work and lodged a workers’ compensation claim for this injury. I am embarrassed to say that I have recently started to feel depressed because of my injury and the impact that it is having upon my life. What should I do?

This is a very common occurrence, and you should not feel embarrassed or ashamed; often people with an injury suffer from an ‘Adjustment to Injury’ disorder. You should speak with your treating GP about how you are feeling. They may develop a Mental Health Plan for you, and refer you to a psychologist for further treatment. You should ask your GP to provide you with an updated workers’ compensation medical certificate that includes details of your psychological symptoms, and recommended treatment. You should then provide this to WorkCover, and request that they formally accept your psychological injuries as part of your claim. If they do accept these injuries, you will be entitled to be reimbursed for out-of-pocket expenses associated with the same, such as the costs associated with attending a psychologist or purchasing antidepressant medication. If WorkCover does not accept these injuries as part of your claim, you are entitled to appeal this decision to the Regulator (see below).

Your Obligations

You have an obligation to mitigate your ongoing losses throughout your claim. This means that you must undergo any reasonable medical or rehabilitative treatment recommended by your treating medical practitioners.

RETURN TO WORK

This means that you have an obligation to engage in a ‘return to work’ process, if it is supported by your treating medical practitioners.

The return to work process is designed to assist you to return to your pre-injury role, where possible. It is premised on the basis that a quicker return to work enhances a worker’s overall health (including mental health) and aids their recovery.

When organizing a return to work program, WorkCover will liaise with various parties, including you, your employer, your supervisor, treating medical practitioners and workplace specialists, such as rehabilitation providers.

SUITABLE DUTIES

It is common for workers to be unable to immediately return to their pre-injury role as a result of their injuries. When this occurs, their treating medical practitioners may deem them fit to return to work, albeit in a reduced capacity whilst they recover from their injuries. In these circumstances, the employer must identify other tasks that you may be able to perform within your limitations, even though they may not ordinarily form part of your normal job. These tasks are called ‘suitable duties’. This may mean, for instance, that an employee who usually works as a truck driver is unable to immediately return to driving trucks, but is capable of performing office-based duties. WorkCover’s rehabilitation and return-to-work coordinator (the coordinator) will then develop a document called a ‘suitable duties plan’. This will be developed with the input of your treating medical practitioner, employer and supervisor, and will outline:

the period that you can perform suitable duties;
the types of duties to be performed;
any restrictions that need to be adhered to, such as lifting no more than 5 kg, and standing for no more than 20 minutes;
any training that you will require to perform the suitable duties; and
when the suitable duties plan is to be reviewed and updated.

The suitable duties plan will need to be signed off by you, your supervisor, the coordinator, and your treating medical practitioner.

NO SUITABLE DUTIES

There may be occasions where an employer is simply unable to provide you with suitable duties. When this occurs, WorkCover will try to find you appropriate short-term ‘host employment’, whereby you attend work with another employer who has agreed to have you at their workplace. Host employment may include, for instance, working at Bunnings in a light role, or at Auto Barn in a sales’ capacity.

WORKCOVER DETERMINES THE APPLICATION

Once you have lodged your claim, WorkCover has 20 business days to determine whether it will accept or reject it.

YOU HAVE 3-6 Weeks

This is the average time that WorkCover will pay your wage if you are on a “Host” employment program

FAQ

I have returned to work on suitable duties but am still experiencing pain. What should I do?

You should notify your supervisor, WorkCover and your treating medical practitioner of the tasks that aggravate your pain. They can then determine whether further adjustments need to be made to your suitable duties plan.

My doctor says that I can’t return to work in any capacity at present, but WorkCover is pushing me to do so. What should I do?

You need to be guided by your treating medical practitioner in this regard. The danger of returning to work too early, against medical advice, is that you may aggravate your injuries. Ensure that your doctor has certified you as ‘unfit to work’ in any capacity, and provide a copy of this certificate to WorkCover. You can tell WorkCover to liaise with your doctor if they have any further queries regarding your capacity to work.

Decision B

Reject the Claim

In the event WorkCover rejects your claim, you will receive a written ‘Reasons for Decision’ explaining why it was rejected.

You are then entitled to lodge an Application for Review with the Regulator (formerly known as Q-COMP). The Regulator is an independent government authority whose role is to oversee Queensland’s workers’ compensation system. There is no cost involved if you choose to lodge an Application for Review by yourself.

You must lodge an Application for Review within three (3) months of receiving WorkCover’s written reasons for its decision. If you fail to adhere to this timeframe, you will usually lose all entitlements to make a claim thereafter. Upon receipt of your Application for Review, the Regulator will review all available material and make a decision regarding your application within 25 business days (although it is common for this timeframe to be extended).

YOU HAVE 3 Months

to lodge an application and have WorkCover review its decision to reject your claim

The Regulator can make one (1) of three (3) decisions; namely:

1
Overturn WorkCover’s original decision, and substitute it with a decision to accept the claim. If this occurs, WorkCover will reimburse you for relevant time off work and out-of-pocket expenses. Your claim will close when your injuries
2
Remit the matter back to WorkCover with appropriate directions, such as obtaining further medical records and then make a new decision.
3
Uphold WorkCover’s original decision to reject the claim.

If this occurs, you can lodge an appeal with the Queensland Industrial Relations Commission (the QIRC). There are strict time limits associated with such an appeal; you only have 20 business days to do so. A Court case will then be held in the QIRC to determine the appeal, which is an expensive process. | Workers Compensation Insurance.

You have 20 Days

To lodge an appeal with the Regulator if WorkCover rejects your appeal

Tips

Appealing WorkCover’s decision

When appealing a decision to reject your claim, you can include material that WorkCover did not have access to when making its original decision.

You should include as much supporting evidence as possible. This may include:

photographs (if applicable);
statements are taken from your co-workers as to how your injury occurred;
any incident reports completed in relation to the circumstances of your injuries; and
any medical records or reports that support your claim.

YOU HAVE 21 Days

To lodge an appeal with the Industrial court if the Regulator upholds WorkCover’s decision to If the QIRC rejects your appeal, you can appeal to the Industrial Court within 21 days of the QIRC’s decision. The decision of the Industrial Court is final.

PERMANENT IMPAIRMENT ASSESSMENT

Closure of Claim

Once accepted, your workers’ compensation claim will not remain open forever. It will close when your injuries are deemed to be ‘stable and stationary’; that is, your injuries will not get any better or worse with further treatment.

Your treating doctor or specialist will usually determine when your injuries have reached stabilisation.

Psychological Injuries

Psychological injuries can, however, only be found to have stabilised by a Psychiatric Medical Assessment Tribunal (MAT), which is comprised of three independent doctors (usually psychiatrists).

You will be required to attend the Psychiatric MAT and answer various questions to enable the doctors to determine whether your injuries have stabilised.

If they determine that your injuries have indeed stabilised, the Psychiatric MAT will proceed to undertake a permanent impairment assessment (see below).

However, if they are of the view that you require further treatment, they will refer you back to WorkCover for further treatment, with a recommendation that you return to the Psychiatric MAT within a certain timeframe (for instance, in three (3) to six (6) months) for review.

Permanent Impairment Assessment

Once your claim has closed, you are entitled to have your injuries assessed in order to determine whether you have sustained a permanent injury under the WCRA. This is known as a ‘permanent impairment assessment’.

WorkCover should arrange a permanent impairment (PI) assessment as a matter of course once your claim has closed. However, it is common for them to omit to do so; if this occurs, you should contact your claims advisor and ask them to arrange the same.

A PI assessment must be conducted by an appropriate doctor:

Physical injuries will be assessed by an occupational physician or appropriate specialist (such as an orthopaedic surgeon).
Industrial deafness will be assessed by an audiologist.
Psychological injuries will be assessed by the Psychiatric MAT (as outlined above).

If you have sustained a physical injury, the relevant doctor will undertake a physical examination and ask you some questions regarding your injuries.

They will also review relevant medical reports, records and radiological examinations. This is a relatively quick process.

If you have sustained a psychological injury, you will attend the Psychiatric MAT and answer various questions about your condition, treatment and how your injuries impact your employment and activities of daily living (such as your ability to concentrate, catch public transport and socialise with others).

This is a very informal process, and a legal representative is not required. The decision of the Psychiatric MAT is generally final and cannot be appealed.

The assessing doctor(s) will then assess your injuries with a degree of permanent impairment (for instance, 2% permanent impairment) in accordance with the Guidelines for Evaluation of Permanent Impairment and the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fifth Edition).

Tips

Attending the Psychiatric MAT

Attending the Psychiatric MAT is an opportunity for you to talk about how your psychological injuries impact upon you on a daily basis. If you think you will be nervous, it is a good idea to write down some notes about this, that you can refer to if required.
events etc), try to narrow them down to two or three ‘main’ stressors;
The Psychiatric MAT will always ask what (if any) medication you are taking for your psychological injuries. Be prepared by having this information, including dosage and frequency, at hand.
If you become tearful and overwhelmed by the questions asked, you can request a short break.

The PI assessment process is artificial in nature given it purely assesses impairment, not an injured person’s residual disability arising from their injuries:

Leah is a lawyer who is right-hand dominant. She lost the tip of her left little finger in a ‘freak’ workplace accident but is still able to continue to work as normal.

Mary is a concert pianist who has also lost the tip of her little finger. Unlike Leah, Mary’s injuries have been career-ending, as she can no longer use her left little finger when playing the piano.

Whilst their injuries have had different effects on their career (for Leah, none, and for Mary, her career as a pianist is over), they will be assessed with the same degree of PI (for example, 3% PI) and offered the same amount of lump sum compensation (for example, $15,000.00).

In contrast to WorkCover’s PI process, a common law claim for damages (see below) will compensate an injured person like Mary for their ongoing disability, such as their pain and suffering, past and future out-of-pocket expenses and, importantly, past and future loss of income as a result of their injuries.

NOTICE OF ASSEsSMENT ISSUED

Choices

You have three (3) choices upon receipt of the NOA; namely, to:

1
Accept the offer:

If you accept the offer, WorkCover will deposit the money into your bank account as soon as possible. Critically, you will be precluded from pursuing a common law claim for damages if you accept the offer unless your injuries were assessed with 20% PI or more.

2
Reject the offer:

If you wish to reject the offer, you must do so within 20 business days of receiving the NOA, by completing the relevant documents.

You can elect to be re-assessed by another specialist, or by the MAT. A re-assessment may assess you with:

the same PI, which would not change the amount of lump-sum compensation offered to you;
a higher PI, which would increase the amount of lump-sum compensation offered to you; or
a lower PI, which would decrease the amount of lump-sum compensation offered to you.

If you are re-assessed by another specialist and still disagree with the assessment, you can proceed to the MAT. As abovementioned, the decision of an MAT is final and cannot, in most circumstances, be appealed.

If you are pursuing a common law claim for damages, there is often little utility in rejecting the offer, as the receipt of the NOA is generally the ‘green light’ to commence this claim.

However, it may be worthwhile rejecting the offer if, for instance, your injuries were assessed with 18% or 19% PI, and you would like to try to reach 20% permanent impairment (which will enable you to accept the lump-sum offer and still pursue a common law claim).

3
Ignore the offer:

If you ignore the offer, it will remain on your workers’ compensation file and can be accepted in the future. As abovementioned, receipt of the NOA is the gateway to commencing a common law claim.

PI Thresholds

Significant changes were made to the WCRA on 15 October 2013, whereby workers were only entitled to pursue a common law claim if their injuries were assessed with 6% PI or more. These changes were ultimately repealed:

Relevant Period

Threshold to Pursue a Common Law Claim

Prior to 15 October 2013

No PI threshold.

15 October 2013 – 30 January 2015

Worker’s injuries must be assessed with 6% PI or more.

31 January 2015 – present

No PI threshold.

COMMON LAW CLAIM FOR DAMAGES

TYPES OF CLAIMS

There are several types of common law claims. These include:

Claims against an employer, whereby a person is injured in negligent circumstances whilst they are at work. These claims are brought under the WCRA.
Claims against a third party; for instance, in ‘slip and fall’ cases where a person slips and falls on a banana at a shopping centre. These are known as ‘public liability claims and are brought under the Personal Injuries Proceeding Act 2002 (Qld) (the PIPA).
Claims against an employer and a third party. The claim against the employer is brought under the WCRA, whilst the claim against the third party is brought under the PIPA. These are often called ‘hybrid’ claims.

Example

Sarah is employed by company X but injures her back whilst working on the premises of company Y.

She may be able to pursue a claim against her employer (company X) under the WCRA, as well as a claim against the owner/occupier of the premises (company Y).

Time Limits

There are strict time limits associated with pursuing a common law claim in Queensland.

The general time limit is three (3) years from the date of injury. This means that a person injured on 1 December 2019 has until 1 December 2022 to bring a claim. The time limit is less clear where the injured person sustains an injury over a period of time. This may occur if, for instance, if they develop psychological injuries as a result of prolonged bullying and harassment at work, or develop a ‘repetitive strain’ injury as a result of regularly undertaking certain workplace tasks.

YOU HAVE 3 months

To pursue a common law claim in Queensland

Legal Fees

Most firms work on a ‘no win, ‘no fee’ basis, which means that you will not pay for any of their legal fees if a successful outcome is not achieved in your matter. This means that they will not ask you for money for legal costs either upfront or throughout your claim. They will also fund disbursements and outlays (such as the cost of obtaining relevant medical reports and records). These costs and disbursements will ultimately be deducted from your settlement in the event that a successful outcome is achieved. This arrangement is very different to that of, for example, a commercial transaction, in which firms usually request a large sum of money, or even payment of the entirety of their fees, upfront. The reason for this difference is that the majority of injured claimants simply do not have the financial means required to pay upfront, particularly if their injuries have resulted in time off work or, worse, the loss of their job.

The ’50 / 50 Rule’

The Legal Profession Act 2007 (Qld) places a ‘cap’ on the amount that lawyers can charge for their fees, called the ’50 / 50 rule’. This rule caps the fees that firms can charge in personal injury matters; it states the maximum amount of legal costs (inclusive of GST) that a law practice may recover is no more than 50% of the net settlement amount. This is designed to ensure that the legal costs do not exceed your ‘in hand’ settlement.

Example

Lauren injured her foot at work when she fell over a box.

Her matter resolves for $200,000.00 clear of the workers’ compensation refund (which means that she will not need to repay monies paid by WorkCover in the course of her workers’ compensation claim). Lauren’s legal costs have been assessed at $40,000.00 inclusive of GST. Her disbursements include a report from an orthopaedic surgeon and occupational therapist, totalling $4,000.00.

The following refunds (totalling $6,000.00) must also be repaid:

Medicare - $2,000.00.
Centerlink - $4,000.00.

On these figures, Lauren will receive approximately $150,000.00 ‘in hand’, calculated as follows:

Settlement sum ($200,000.00) – refunds ($6,000.00) = $194,000.00.
$194,000.00 – disbursements ($4,000.00) = $190,000.00.
$190,000.0 – legal costs ($40,000.00) = $150,000.00.

HOWEVER, if Lauren’s matter resolves for $80,000.00, the ’50 / 50 rule’ will apply:

Settlement sum ($80,000.00) – refunds ($6,000.00) = $74,000.00.
$74,000.00 – disbursements ($4,000.00) = $70,000.00.
The full $40,000.00 in legal costs cannot be charged, as this is more than 50% of $70,000.00. As a result, the lawyer could only charge 50% of $70,000.00 (i.e. $35,000.00) and Lauren would receive $35,000.00 ‘in hand’.
This means that the firm would have to ‘write off’ the outstanding $5,000.00 in legal costs.

WorkCover

As abovementioned, a person who has received an NOA must generally choose between accepting the lump sum compensation offer contained therein (unless their injuries are assessed with 20% permanent impairment or more) or pursuing a common law claim.

It may therefore be better to accept the lump sum compensation offer in circumstances where:

it will be very difficult to establish that your employer was at fault; and/or
the amount of compensation you recover through a common law claim may be less than WorkCover’s lump-sum offer, once legal costs are deducted from a settlement.

Prior to determining whether we will offer to act for you on a ‘no win, no fee’ basis in a common law claim, we will determine whether your case has merit.

There are usually two (2) issues in dispute in a claim which we will closely consider; that is:

liability (that is, who was at fault for your injuries); and
quantum (that is, how much your common law claim is worth).

LIABILITY

As abovementioned, merely sustaining an injury does not entitle you to pursue a common law claim. Rather, you must establish that the other party (the respondent) caused or contributed to your injuries.

In order to do so, you must prove, on the balance of probabilities:

1
The respondent owed you a duty of care:

The following are examples where it has been established that a duty of care is owed by one party to another:

An employer owes their employees a duty of care to its employees to provide them with a safe working environment
An occupier of premises owes a general duty of care to persons on premises under their control.
Doctors owe a duty of care to their patients.

2
The respondent breached their duty of care:

Various matters are taken into account when considering whether a respondent has breached its duty of care, including but not limited to:

whether a reasonable person in the position of the respondent would have foreseen that their conduct may cause you risk of injury; and
if so, what a reasonable person would have done in response to the risk, taking into account:
- the magnitude of the risk;
- the degree of probability of it occurring; and
- the difficulty and expense of taking action to remedy the risk.

Examples where a respondent has breached its duty of care

A.

Louis is a truck driver. He injured his lower back at work as a result of having to sit for long periods of time in the driver’s seat, which was faulty. The seat was partially collapsed, and often ‘bottomed out’, particularly when the claimant drove over rough roads. Louis had previously told his supervisor about the problems with the driver’s seat, but no action was taken to address this.

Louis’ employer will likely be found to have breached its duty of care to him, on the basis that it failed to:

provide Louis with proper plant/equipment (specifically, a seat that was not faulty); and
take action to address Louis’ complaints in a timely manner.

B.

Karen purchased some bread from a bakery on a rainy day. Upon leaving the store, she slipped and fell on a puddle of water, which was caused by umbrellas used by customers in the rain that day.

The bakery will likely be found to have breached its duty of care to Karen, on the basis that it failed to:

put a non-slip mat at the entrance/exit of the store; and
implement an adequate cleaning and inspection system, which would have identified the presence of the puddle.

3. The breach of duty caused or contributed to your injury:

This is often relatively straightforward, such as in the case of a claimant with no history of neck pain, who develops the same after a workplace accident. However, causation is not so straightforward if, for instance, the claimant had a long-standing history of symptomatic neck pain.

Onus & Standard of Proof

The onus is on you to demonstrate that the respondent was negligent (at fault). The standard of proof in a personal injury claim is a ‘civil’ standard of proof; that is, you must prove, on the balance of probabilities, that the respondent was negligent. This means that you need to prove that it was ‘more likely than not’ that the respondent was at fault. This standard of proof is lower than that in a criminal matter, in which the person bringing the charge has to prove the defendant’s guilt ‘beyond reasonable doubt’. The reason for this difference is that an error in deciding a criminal trial will likely have much more serious ramifications for a person, such as an imprisonment for a crime they did not commit, than an error in a personal injuries matter.

Defences

A respondent can defend a common law claim by relying on certain defences, such as the following:

1 Contributory negligence:

This is the most common defence, which involves a respondent arguing that it was the claimant’s actions, rather than those of the respondent’s, that caused or contributed to their injuries. If the respondent can prove this, the damages that a claimant is otherwise entitled to will be reduced. For example, if the claimant is found to have caused or contributed to their injuries to the extent of 50%, the damages they are awarded is then reduced by 50%.

Example

Barry was on his break at work. He was walking through the office, texting on his phone, and did not see a box that his coworker, Jane, had left in the walkway.

Barry tripped on the box and fell forwards, landing on his right elbow.

It is arguable that Barry’s employer is liable for his injuries, given it failed to ensure that there were no trip hazards in the workplace. However, it is also arguable that Barry could have avoided injury by maintaining a proper lookout whilst walking. As a result, Barry’s damages may be reduced to take into account his contributory negligence.

2 Dangerous recreational activity:

A respondent may argue that a claimant was injured as a result of engaging in a dangerous recreational activity.

3. Joint illegal enterprise:

A respondent may argue that the claimant was injured as a result of engaging in a joint illegal activity, such as joyriding in a stolen car whilst drunk.

‘Quantum’ is what your claim is worth. It is made up of different ‘pieces’ called ‘heads of damage’:

General damages (also known as ‘pain and suffering’).
Past special damages / out-of-pocket expenses (and associated interest).
Past economic loss (and associated interest and loss of superannuation).
Future economic loss (and associated loss of superannuation).
Future out-of-pocket expenses.
(In some cases) past and future care and assistance.
(In some cases) Fox v Wood damages.

The calculation of quantum is not a precise science; it invariably involves a degree of hypothesizing and ‘crystal ball gazing’. Furthermore, a claim is only designed to put you in the same financial situation (as much as possible) that you would have been in, but for your injuries.

The different heads of damage are outlined below.

General Damages

General damages are compensation for a claimant’s pain and suffering, and loss of amenities or enjoyment of life, as a result of the subject accident.

Prior to 2002, there were no restrictions on awards for general damages, which meant that claimants could be awarded hundreds of thousands of dollars for their pain and suffering, depending upon the severity of their injuries. However, legislation was subsequently passed in Queensland that placed a ‘cap’ on general damages. This means that general damages now constitute a relatively small component of a claim, and the calculation of same is now largely a mathematical exercise:

Injuries to different parts of the body are now grouped into different categories, called ‘Items’. For instance, cervical spine injuries are grouped together, as are knee injuries, ankle injuries and mental disorders.
Each category or ‘item’ is then subdivided according to severity; that is, whether it is an ‘extreme’, ‘serious’, ‘moderate’, or ‘minor’ injury (such as a ‘minor ankle injury’). Relevant factors as to the severity of an injury include the diagnosis, impairment assessment and ongoing impact.
Each sub-category has a range of numbers, called ‘Injury Scale Values’, which essentially represent a dollar value. The numbers range from 0 to 100. The higher the number, the higher the compensation for pain and suffering.
If you have sustained multiple injuries, the ‘dominant’ injury will be identified, and an uplift (usually up to 25% of the dominant injury) can be allowed to reflect the totality of your injuries and ongoing symptoms.

Past Out-of-Pocket Expenses / Special Damages

You can also claim for past special damages, otherwise known as ‘out-of-pocket expenses’.

Past out-of-pocket expenses can include:

the cost of medication purchased;
gap fees associated with consultations with a treating GP or specialist;
Medicare and private health refunds;
past travel expenses to/from medical appointments; and
the cost of assistive aids such as a wheelchair or walker.

In order to calculate past out-of-pocket expenses, we will ask you to provide us with any receipts that you have for the above expenses. We will also request itemised accounts from pharmacies and physiotherapists (if applicable), along with details of any refunds owing to Medicare and your private health provider.

Interest

Interest is recoverable on past special damages.

Past Economic Loss

You can claim damages for past loss of income as a result of your injuries. It is always calculated with reference to your net income, as settlement monies will be tax-free.

Past economic loss can take into account periods where, for instance, you:

were unable to work at all due to your injuries;
were in receipt of workers’ compensation statutory benefits (given that claimants usually only receive 85% of their ordinary weekly earnings for the first 26 weeks of their workers’ compensation claim);
had to reduce your hours due to your injuries;
were unable to take advantage of overtime that you would have usually been offered, due to your injuries;
had to change roles due to your injuries and, in turn, earned less money than you would have but for your injuries; and/or
missed out on bonuses or pay rises due to your injuries.

Examples of past economic loss (PEL) calculations

Larry works as a telemarketer on a permanent, full-time basis. He earns $1,000.00 net / week. He injured his shoulder at work approximately 12 months ago.

Scenario 1 - Larry is unable to return to work at all as a result of his injuries. PEL = $1,000.00 net / wk x 52 weeks = $52,000.00.
Scenario 2 - Larry required 2 weeks off work, before returning to full-time work. PEL = $1,000.00 net / wk x 2 weeks = $2,000.00.
Scenario 3 - Larry required 2 weeks off work, before spending 8 weeks on suitable duties. He lost $100.00 net / wk during this time as he was unable to take advantage of overtime like he usually would. PEL = $1,000.00 net / wk x 2 weeks = $2,000.00. PLUS $100.00 net / wk x 8 weeks = $800.00. TOTAL = $2,800.00.

Past economic loss is largely calculated with reference to your payslips and your taxation records, generally for the three (3) Financial Years prior to the accident.

The respondent may dispute your claim for past economic loss if, for instance, you failed to mitigate your losses by seeking appropriate employment, or you sustained an unrelated injury that necessitated further time off work. In these circumstances, the respondent will likely argue that the damages for past economic loss should be discounted.

Interest & Superannuation

You can also claim for:

interest on past economic loss; and
past loss of superannuation (generally calculated at 9.5% of the amount claimed for past economic loss, although often calculated at a higher rate for government employees).

Future Economic Loss

The largest head of damage is usually that of future economic loss. Statistics for 2019 District and Supreme Court personal injury decisions indicate that a significant 71% of awards comprised of economic loss (particularly future economic loss):

This means that we focus a lot of our efforts on substantiating your claim for future economic loss.

Anticipated retirement age

Anticipated retirement age
Future economic loss is generally calculated from the present date to your anticipated age of retirement, which is usually taken to be 65 or 67. However, this period may be reduced or extended depending upon your particular circumstances.

Your anticipated age of retirement is usually taken to be 65 or 67

Calculating Future Economic Loss

A number of considerations will be taken into account when calculating your future economic loss, including:

your education and work history;
whether you have returned to the same role following your injuries;
how much time you have had off work;
whether you have had to use sick or annual leave for your injuries;
whether you have lost opportunities for a promotion, increased pay rates or to work on a more lucrative project; and
how your injuries are impacting upon your work (for instance, whether you require assistance from co-workers).

Tips

Future Economic Loss

You can increase your prospects of successfully lodging a claim for psychological injuries by:

narrowing down the various stressors that contributed to the development of your injuries. For instance, if there were a number of issues that gave rise to your injuries (such as unwarranted criticism, exclusion from certain
events etc), try to narrow them down to two or three ‘main’ stressors;
providing WorkCover with a straightforward, concise chronology of the events that led to the development of your injuries; and
providing WorkCover with any statements of support, such as from your co-workers.

Medico-legal reports (see below) will also be relied upon when establishing your future economic loss.

Contingencies

A discount is made in future economic loss claims for ‘contingencies and vicissitudes of life.’

This is designed to reflect that it is normal for a person throughout their working life to have periods of unemployment, or periods where they earn less money due to, for instance, illness or family responsibilities.

Ordinarily, a discount of 10 to 15% is applied. However, this may be increased if, for instance:

you had a pre-existing condition that would have likely impacted upon your ability to work in the future (irrespective of your accident-related injuries);
you have had a sporadic or limited employment history; or
your long-term future in a certain industry (such as mining) is particularly tenuous.

Calculation of Future Economic Loss

Your injuries may impact your earning capacity in different ways and, in turn, the calculation of your future economic loss

Where there is an ‘'identifiable loss'

You may have a clearly identifiable ongoing monetary loss as a result of your injuries. In such a case, their future economic loss may be calculated in various ways. For instance:

Example

Max is currently 50 years of age. He sustained a Traumatic Brain Injury at work when a crane fell on top of him. At the time of the accident, Max was earning $1,000.00 net per week

The medico-legal evidence is that Max will be unable to return to any form of employment in the future.

Max’s future economic loss could be calculated as follows: ongoing loss of $1,000.00 net/week x 17 years (i.e. when Max will reach 67 years of age), discounted by 10%.

Example

Jacob is 35 years old. He was employed as a leading hand electrician at the time of his injuries, earning approximately $1,000.00 net per week.

As a result of injuring his lower back at work, he has had to step down into another role and is now earning $200.00 less per week.

Jacob’s future economic loss could be calculated as follows: Ongoing loss of $200.00 net/week x 32 years (i.e. when Jacob will reach 67 years of age), discounted by 10%.

Global Award

It is sometimes more difficult to demonstrate a specific, identifiable loss, particularly if you have continued to work despite experiencing ongoing symptoms. In these circumstances, it is impossible to calculate future economic loss with any real mathematical basis. As a result, a ‘global’ award for future economic loss may be made. This is a general allowance for the possible impact that your injuries may have upon your future earning capacity. Various factors may be taken into account when making a global award, including your:

age;
literacy and computer skills;
education and qualifications;
employment history;
disadvantage on the open labour market; an
future intentions.

Example

Julia injured her neck when she tripped and fell at a shopping centre.

She has been working as a hairdresser for a number of years. She initially had three (3) weeks off work following her accident but has now resumed full-time employment. She has ongoing difficulties at work due to her neck pain and headaches, but she tries to ‘work through’ these. Julia’s future economic loss will likely be based on a global figure, such as $40,000.00. This figure is designed to take into account, for instance, periods of unemployment, and disadvantages on the open labour market, that Julia may face due to her injuries.

Future Loss of Superannuation

Future loss of superannuation entitlements can also be claimed (generally at 11.5% of the claim for future economic loss).

Fox v Wood Damages

If you have received workers’ compensation benefits for your injuries, you will be entitled to recover the income tax paid on these benefits (which will ultimately be refunded to WorkCover).

Care & Assistance

In some circumstances, you may be able to claim for past and future care and assistance. This encompasses care and assistance provided to you by a family member or friend for free (that is, gratuitous care and assistance) or paid to an external service provider such as BlueCare (that is, paid care and assistance). It can include assistance such as helping you to shower and dress, take you to/from appointments, and doing household chores that you would have ordinarily done yourself. The nature and extent of the care and assistance provided will be based on various evidence, including:

the evidence of your capacity to perform home and self-care duties both before and after the accident;
evidence of your family or friends/care providers; and
medico-legal reports, particularly that of an occupational therapist.

Gratuitous Care & Assistance

There are restrictions on who can make a claim for past and future gratuitous care and assistance:
In general, if you are injured at work (and bringing a common law claim against your employer), you cannot claim for past gratuitous care and assistance. There are, however, some limited exceptions to this.
If you are bringing a public liability claim, you are only able to claim for gratuitous care and assistance if you can demonstrate that you required this care for six (6) hours per week, for six (6) months, as a direct result of your injuries.

Type of Claim	Past & Future Paid Care & Assistance?	Past & Future Gratuitous Care & Assistance?
WorkCover	Limited circumstances only	Limited circumstances only
PIPA		Yes, but only if it can be shown that this care was required for 6 hours per week, for 6 months.
WorkCover / PIPA (‘hybrid’)		Against WCQ – limited circumstances only. Against the public liability respondent – Y

Interest

Interest in past care and assistance can be claimed in some circumstances.

Tips

Care & Assistance

You can assist us to substantiate a claim for past care and assistance (where applicable) by:

keeping a detailed, up-to-date diary of care and assistance that has been provided to you;
providing photographs of, for instance, your unkempt house, unclean swimming pool or your garden which is full of weeds; and
providing us with the names and contact details of your family members or friends who have provided you with care and assistance, so that we may obtain a statement from them in this regard.

GENERAL STEPS INVOLVED IN A COMMON LAW CLAIM

A broad overview of the steps involved in pursuing a common law claim (that is, for either a workplace injuries claim or a public liability claim) is outlined below. It is important to note that some steps may be undertaken earlier than others in certain circumstances, and we will provide you with ongoing advice in relation to the progression of your individual claim.

STEP 2:
EVIDENCE OBTAINED

The respondent has six (6) months from the date of receiving the initiating document to provide a liability response; that is, to determine whether it was at fault for the accident. It is not uncommon for the respondent to take the full six (6) months to provide a response. During this time, we will obtain liability and quantum evidence relevant to your claim. This includes sending a detailed request to the respondent for relevant material, such as:

photographs, plans and/or diagrams of the area where the accident occurred;
any incident reports completed in relation to the accident;
any statements obtained by the respondent in relation to the circumstances of the accident;
any standards, procedures, directives and/or controls in place in order to avoid an accident;
relevant risks assessments;
details of any previous incidents that the respondent is aware of, either before or after your accident, where someone has suffered injuries in similar circumstances;
details of further investigations (including the outcome of same) conducted by the respondent after the accident; and
details of procedures put in place by the respondent immediately after your accident, designed to prevent a similar accident from occurring in the future.

YOU HAVE 6 months

for WorkCover to confirm with you if they think the accident was the employer’s fault

STEP 3:
MEDICO-LEGAL EXAMINATIONS OCCUR

We will obtain medical evidence from a specialist(s) in order to quantify your claim (that is, determine how much compensation you may be entitled to).

To this end, we will arrange for you to undergo an ‘independent medical examination’ (IME) with the relevant specialist(s) once your injuries have stabilised (that is when your injuries will not become any better or worse with further treatment). It usually takes between approximately nine (9) to 12 months for an injury to stabilise. However, in the event you have suffered catastrophic injuries (such as a Traumatic Brain Injury), stabilisation will likely take between two (2) to three (3) years. It is important that we wait for your injuries to stabilise, as the expert will otherwise be unable to accurately assess your injuries and the impact that they may continue to have upon you in the future.

YOU HAVE 9-12 months

For an injury to stabilise

Who will you see?

The specialist(s) that we will send you to for an IME will depend on the nature of your injuries:

orthopaedic

If you have an orthopaedic injury, such as a fracture to your foot, we will send you to an orthopaedic surgeon for assessment.

neurosurgeon

If you have a neurological injury, such as to your neck or lower back, we will send you to a neurosurgeon for assessment.

psychiatrist

If you have a psychological injury, we will send you to a psychiatrist for assessment.

therapist

We may also send you to an occupational therapist for assessment, in the event that your injuries are adversely impacting your ability to work. The occupational therapist will then determine what other jobs may be appropriate for you, in light of your injuries and employment history.

We will usually arrange for you to be examined by an expert whom we have used previously, and who has a reputation of being sympathetic to claimants. This does not mean that the specialist always writes favourable reports for claimants; rather, that they take claimants at ‘face value’ and are not predisposed to being sceptical about claimants and personal injury claims in general.

The specialist(s) will conduct a physical examination (where appropriate) and ask you a number of questions regarding the nature of your injuries and their impact upon your personal and working life.

They will then provide us with a detailed report (called a ‘medico-legal report’) that will discuss:

your diagnosis;
your prognosis (that is, whether the specialist anticipates that your condition will improve or, conversely, deteriorate, in the future);
whether it is likely that you will be able to continue in, or return to, your pre-injury role;
whether your injuries will impact upon your ability to work in other roles that you may otherwise be suited to;
whether any further treatment will be required and, if so, the cost of same; and
whether you will require any care and assistance, either paid or unpaid.

The respondent is also entitled to have you examined by a specialist(s) of their choosing. However, they must first provide us with a panel of three (3) specialists from which to choose. Unsurprisingly, the specialists on the respondent’s panel tend not to be claimant-friendly, as they can take a dim view of claimants.

As a result, there is often a significant difference between the views expressed by our chosen specialist(s) and the respondent(s) chosen specialist(s); it is common, for example, for our specialist will form the view that your injuries will impact upon your ability to work in the future, whilst the respondent’s specialist will opine that you will be able to continue to work with no ongoing difficulties.

FAQ

You get one chance at settling any compensation claim. Once that chance is gone, its' gone forever. Use our flowchart system to make sure you do not leave anything out of your claim.

The specialist has asked me to submit to a urine and blood test. Do I have to?

This is common practice, particularly if you are being examined by a psychiatrist. You will need to submit to these tests unless they create a genuine risk to your health.

I need to take time off work to attend the examinations. Will I be reimbursed for this?

In general, you will not be reimbursed for lost income, given attendance at the examinations is necessary to progress your claim. However, the exception to this is if you are self-employed, and had to pay someone else to perform your duties in your absence.

You will also be reimbursed for reasonable travel expenses associated with attending the respondent’s IME, such as kilometres and parking.

Will the specialist give me advice about how to treat my injuries?

No, the specialist’s role is not to treat you; it is purely to assess you for the purpose of providing a medico-legal report.

Once we have received all the medico-legal reports, we will be in a position to provide you with advice as to what we think your claim is worth.

STEP 4:
LIABILITY RESPONSE RECEIVED

A common law claim is commenced by providing an initiating document to the relevant respondent.

The format of the document varies depending on whether the claim is a worker's compensation claim or a public liability claim. However, the content of the document is largely the same, and includes details of how the accident occurred, who you allege is at fault (and why), and the nature of your injuries.

Within six (6) months of receiving initiating document, the respondent must provide us with a written confirmation as to whether it admits or denies liability (that is, fault).

It is common for insurers to deny liability. However, that does not mean that they will not try to resolve your claim at an early stage.

YOU HAVE 6 Months

for WorkCover to confirm with you if they think the accident was the employer’s fault

STEP 5:

MATTER PROCEEDS TO A COMPULSORY SETTLEMENT CONFERENCE

Once all evidence has been obtained, and the respondent provides its liability response, the matter will be set down for a compulsory settlement conference.

A compulsory conference is an informal process whereby representatives of both parties meet to discuss the merits of the claim. In brief, we will make submissions as to why we are of the view that you have a strong case (in terms of both liability and quantum), whilst the respondent will then outline what they perceive to be the difficulties in your claim.

This is not a lengthy process and, once concluded, the parties separate so that negotiations can begin. The ultimate aim of the conference is to obtain the respondent’s best offer on the day so that we can provide you with advice in relation to:

whether or not this is a reasonable offer; and
should you accept this offer, what you will (approximately) receive ‘in hand’ whilst legal fees, disbursements and refunds owing to any statutory bodies.

Conferences are generally conducted in person, and you will need to attend in order to provide us with instructions.

The conference process is designed to encourage the early resolution of matters, and the majority of matters do resolve at a conference. The benefits of resolving your matter at this stage are that it keeps your legal costs to a minimum and allows you to put the matter to bed and move on with your life.

If the claim resolves

In the event that your matter resolves at a conference, you will need to sign several documents confirming your instructions to settle.

It is important to note:

a settlement finalises your rights to all forms of compensation in relation to your subject injuries. This means that you will be precluded from pursuing a claim for the same accident in the future; and
the terms of the settlement are confidential.

You will receive your monies in approximately six (6) to eight (8) weeks following settlement. You will generally receive these monies as a tax-free, lump-sum payment.

You will receive your monies in approximately

6-8 weeks

following settlement

If the claim does not resolve

In the event that your matter does not resolve at the compulsory conference, both parties are required to exchange a document entitled ‘mandatory written offer’, which sets out the best offer that each offer is prepared to make on the day.

These offers remain open for 10 business days; during this time, either party can accept the other’s offer. Further informal negotiations may also occur during this period.

If neither party’s offer is accepted, the offers lapse and Court proceedings must be commenced within 60 days. These are formal documents called a ‘Claim’ and ‘Statement of Claim’, which set out the circumstances of the accident, the respondent’s role in the accident and why they were at fault, and details of your injuries.

The respondent must then file a ‘Notice of Intention to Defend’ and ‘Defence’, which sets out why they oppose the claim.

YOU HAVE 10 Business Days

after your compulsory conference to exchange and consider Mandatory written offers

YOU HAVE 60 Days

to Issue Court Proceedings after the mandatory written offer stage.

We can then file a ‘Reply’ in response, if required.

It is important to note that merely filing these documents does not mean that your matter will proceed to trial; they must simply be filed to protect your entitlement to pursue a common law claim.

Mediation /Informal Negotiations

Once these Court documents are filed, the parties can agree to participate in a mediation. This is essentially the same process as a compulsory conference, but with the advantage of being mediated by an independent third party

Informal negotiations can also occur between the parties at any time. This simply involves one party putting an offer to the other side, either verbally or in writing. The other party then has an opportunity to consider the offer, and decide whether they will accept it.

Trial

Studies have shown that less than 1% of personal injury matters resolve without the need for a trial

In 2019 for example, only 16 personal injury judgement's were handed down. This is largely because the costs associated with a trial are very high. In addition, there will be a ‘winner’ and a ‘loser’ in a trial, given a Judge will ultimately determine whether you have been able to prove the defendant was negligent and, if so, how much they should be awarded in damages. In some circumstances, the ‘losing’ party will be ordered by the Court to not only need to pay their own lawyers’ costs, but also the costs of the other party’s lawyers. A decision to proceed to trial is one that must not be made lightly, and we will provide you with detailed advice at various stages about your prospects of a successful outcome at trial.

2541 New common law claims

Studies have shown that less than 1% of personal injury matters resolve without the need for a trial
In 2019 for example, only 16 personal injury judgement's were handed down. This is largely because the costs associated with a trial are very high. In addition, there will be a ‘winner’ and a ‘loser’ in a trial, given a Judge will ultimately determine whether you have been able to prove the defendant was negligent and, if so, how much they should be awarded in damages. In some circumstances, the ‘losing’ party will be ordered by the Court to not only need to pay their own lawyers’ costs, but also the costs of the other party’s lawyers. A decision to proceed to trial is one that must not be made lightly, and we will provide you with detailed advice at various stages about your prospects of a successful outcome at trial.

FAQ

How long will it take for my claim to proceed to a compulsory settlement conference?

This will depend on several factors, including the date of your injury and the complexities of your claim (such as if there is more than one respondent).

If your injury occurred several months before contacting us, and is relatively straightforward, we should be able to set your matter down for a compulsory conference within approximately nine (9) to 12 months.

However, this is a very general estimate, as the timeframe for each matter depends on the individual circumstances of that matter. We will therefore provide you with ongoing advice throughout your claim as to when we anticipate being able to set your matter down for a compulsory settlement conference.

If I lose my job whilst my common law claim is on foot, can I request an advance payment of settlement monies from the insurer?

Insurers do not generally provide advance payments on common law claims.

We recommend contacting Centrelink if your financial circumstances change and you need assistance. Please keep in mind that any Centrelink benefits you do receive will need to be refunded at the conclusion of your claim.

We are also able to investigate whether you have any superannuation entitlements (such as Total & Permanent Disability or Income Protection Benefits) that you may be able to draw upon.

On a practical level, the Salvation Army may be able to provide you with assistance and support in a time of crisis: https://www.salvationarmy.org.au/need-help/financial-assistance/

Will the respondent pay my legal costs?

This depends on the type of claim that you bring:

If you bring a common law claim against your employer, WorkCover will generally not pay any legal costs. They will only pay you a nominal amount towards your legal costs if your injury is assessed with 20% PI or more.
If you bring a public liability claim, the respondent will pay a portion of your legal costs in the event that your settlement exceeds a certain amount of money.
If you bring a ‘hybrid’ claim (that is, a claim under the WCRA and the PIPA), the public liability respondent will pay a portion of your legal costs, whilst WorkCover will not pay any legal costs (unless, as above, your injury is assessed with 20% PI or more).

STEPS INVOLVED
IN A COMMON LAW
CLAIM AGAINST
YOUR EMPLOYER

The specific steps involved in a common law claim against your employer, for injuries sustained in the course of your employment, are outlined below.

PRELIMINARY

In order to be entitled to pursue a common law claim against your employer, you must have received a Notice of Assessment from WorkCover

The Notice of Claim for Damages (NOCD) is the initiating document that commences a common law claim against the employer and the insurer. It is a detailed document that sets out:

It is a detailed document that sets out:

how the accident occurred;
why the employer was negligent (that is, a
the nature and extent of your injuries; and
the damages that you are claiming for (such as general damages, past and future loss of income etc). It is important to note that these figures will be highly inflated, as the medico-legal evidence will usually not have been obtained by this stage.

You will need to review and sign the completed document. It will then be provided to the employer and WorkCover; the latter will assume conduct of the claim on the employer’s behalf

Compliance Response

Once the NOCD has been received, WorkCover must confirm in writing whether it is compliant with the relevant provisions of the WCRA (that is, whether the document has been completed correctly).

If the NOCD is not compliant, WorkCover may either waive the non-compliance or require you to address the non-compliance (for instance, by providing further information).

STEP 2:

EVIDENCE OBTAINED

We will then write to WorkCover and request various materials relating to the subject accident. WorkCover has 21 business days to respond to this request.

We will provide you with a copy of any documents received and, if necessary, seek your instructions in relation to the same.

WorkCover have

21 Business Days

to respond to a your lawyer’s request for all information relating to your work accident.

STEP 3:

MEDICO-LEGAL EXAMINATIONS OCCUR

As outlined above in ‘General Steps Involved in a Common Law Claim’.

STEP 4:

LIABILITY RESPONSE RECEIVED

Within six (6) months of receiving the compliant NOCD (or waiving the noncompliance issues), WorkCover must provide us with a written confirmation as to whether it admits liability (that is, fault) for the subject accident. If liability is denied (which it often is), they must provide reasons for the same.

WorkCover have

6 Months

to provide us with written confirmation

STEP 5:

MATTER PROCEEDS TO A COMPULSORY SETTLEMENT CONFERENCE

The matter must proceed to a compulsory settlement conference within three (3) months of the provision of WorkCover’s liability response.

WorkCover have

3 Months

to proceed to a compulsory settlement conference

FAQ

Will a common law claim bankrupt my employer?

No. Settlements are not paid by the ‘at fault’ employer; rather, they are paid by their workers’ compensation insurer (usually WorkCover Queensland). This is why it is mandatory for employers to have workers’ compensation insurance. Insurers recognise that accidents happen, and each year set aside a pot of money from which to pay personal injury settlements. The only real implication for your employer is that its premiums may increase slightly the following year. Queensland’s workers’ compensation scheme is the best in Australia. WorkCover’s own figures, released annually, demonstrate that it has an annual profit of over $500 million, and the average common law payout is almost 15% less than WorkCover’s target amount.

Can I still work for my employer whilst I bring a common law claim, or will I have to resign?

You can continue to work for your employer; indeed, many of our clients remain employed with the same employer whilst pursuing a common law claim. It is also illegal for your employer to terminate your employment on the basis that you are bringing a common law claim.

STEPS INVOLVED IN A PUBLIC LIABILITY COMMON LAW CLAIM

The specific steps involved in a common law claim against a public liability respondent are outlined below.

STEP 1:

PART 1 NOTICE OF CLAIM PROVIDED

The Part 1 Notice of Claim (NOC) is the document that commences a common law claim against the public liability respondent.

It sets out how the accident occurred, why the respondent was negligent (that is, at fault), and details of your treatment providers.

You will need to review and sign the completed document. It will then be sent to the respondent, whose public liability insurer will assume conduct of the claim on their behalf.

There are time limits associated with the provision of the Part 1 NOC; it must be provided within either nine (9) months of the date of the accident, or one (1) month from the date that you instruct a law firm to act on your behalf, whichever is earlier.

Failure to lodge a Part 1 NOC within this timeframe requires a ‘reasonable excuse for delay’.

YOU HAVE 6 months

from the date of the accident

or 1 month

from the date that you instruct a law firm to provide The Part 1 Notice of Claim

Compliance Response

Within one (1) month of receiving the Part 1 NOC, the respondent must confirm in writing whether:

the document is compliant with the relevant provisions of the PIPA (that is, whether the document has been completed correctly); and
it is the proper respondent to the claim.

You have 1 Month

Respondent must confirm The Part 1 NOC

Part 2 Notice of Claim

We will then provide the Part 2 NOC to the respondent, which contains information regarding the nature and extent of your injuries. This document must be provided to the insurer within two (2) months of receipt of the respondent’s compliance response.

2 Months

Respondent must confirm The Part 1 NOC

STEP 2:

EVIDENCE OBTAINED

We will write to the respondent and request various materials relating to the subject accident. The respondent has one (1) month to respond to this request. The respondent in a public liability claim does not need to provide as much material as WorkCover does in a claim against an employer

STEP 3:

MEDICO-LEGAL EXAMINATIONS OCCUR

As outlined above in ‘General Steps Involved in a Common Law Claim’.

Respondent Has 1 month

To respond to this request

STEP 4:

LIABILITY RESPONSE RECEIVED

Within six (6) months of receiving the Part 1 NOC, the respondent must provide us with a written confirmation as to whether it admits liability (that is, fault) for the subject accident. Unlike common law claims against employers, the respondent in a PIPA claim does not need to provide reasons for its denial of liability.

STEP 5:

MATTER PROCEEDS TO COMPULSORY SETTLEMENT CONFERENCE

Unlike claims against employers, there is no specific timeframe in which a PIPA claim must proceed to a compulsory settlement conference. A PIPA claim is therefore usually conferences upon receipt of the liability response, along with all liability and medico-legal evidence.

6 Months

The respondent must provide us with written confirmation as to whether it admits liability

Steps Involved in a public liability common law claim