Getting a WorkCover Qld Common Law Payout

man sat on a couch expressing pain due to whiplash

Getting a WorkCover Qld Common Law Payout

Under the Queensland workers’ compensation scheme, workers have a right to sue their employer if they feel they contributed to their injury through negligence. This process is called a common law claim.

What are common law damages in workers' compensation?

Common law damages are amounts that an individual may claim against an employer, provided that they can prove negligence.

An award of damages to a worker is intended to compensate them for the loss that they have suffered or will suffer, due to their work related injuries. 

What can you claim in a WorkCover Qld common law claim?

Under common law, a worker can make a claim for compensation under a number of ‘heads of damage’. The amounts which a worker may recover include:

Head of Damage Description
General damages (to compensate for pain and suffering and loss of enjoyment of life) To compensate for pain and suffering and loss of enjoyment of life
Special damages For out of pocket expenses such as treatment, medication, surgery, travel and aides
Interest on past special damages Interest claimed at a statutory rate on the out of pocket past special damages incurred
Loss of earnings Amounts claimed for the past loss of earnings and the future loss of earnings, which a Court may allow
Interest on past loss of earnings Interest claimed at a statutory rate on the past loss of earnings, net of any amounts paid by way of workers' compensation
Lost superannuation benefits Lost superannuation claimed at relevant rates having regard to the superannuation guarantee and any contract of employment
Fox v Wood The tax withheld component of weekly compensation benefits paid by WorkCover Queensland

Average payout for a common law claim in Qld

For 2021 – 2022 financial years, the average payout for common law claim was $175,772.00.

According to data from the Office of Industrial Relations’ Statistics Report, the average amounts paid, under various heads of damage, on common law claims finalised in the period 1 July 2021 to 30 June 2022 were as follows:

Description Average amount paid
General damages $25,269.00
Treatment $39,237.00
Past loss of earnings $69,948.00
Future loss of earnings $148,409.00
Care $7,689.00
Other $4,790.00

List of WorkCover Qld Common Law Payout Amounts

The following is a list of common law claim payouts over the past three (3) years, as awarded by the Queensland State Courts: 

Common Law Case Name Common Law Payout Amount
Reddock v ST&T Pty Ltd & Anor [2022] QSC 293 $1,360,387.34
Tyndall v Kestrel Coal Pty Ltd (No 3) [2021] QSC 119 $1,483,318.57
Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329 $967,383.39
Schafer v Glendale RV Syndication [2022] QDC 263 $397,952.93
Nkamba v Queensland Childcare Services Pty Ltd [2022] QDC 292 $197,013.98
Norsgaard v Aldi Stores (A Limited Partnership) [2022] QDC 260 $162,390.97
Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd [2022] QDC 3 $755,282.78
Mason v State of Queensland [2023] QDC 80 $148,114.85

For more information about these recent Queensland cases, see our article, Queensland Common Law Claim Payouts: Real Cases and Actual Results.

Why do workers make common law claims?

Most people are concerned for their future after they suffer a workplace injury. In our experience, there are two (2) main reasons why workers choose to pursue a common law claim and these are:

  1. Dissatisfaction with WorkCover Queensland during the statutory claims process.
  2. Disappointment with the actions by, or treatment from, their employer. 

There is absolutely no reason for workers to feel embarrassed or greedy for pursuing a common law claim.

The majority of individuals who pursue common law claims have never made a claim for personal injuries before. Common law damages are designed to compensate workers for their reasonable losses suffered due to their employer’s negligence.

When can I start a WorkCover Qld common law claim?

A worker can start a common law claim when their statutory claim comes to an end. 

A statutory workers’ compensation claim comes to an end, when the earlier of the following occurs:

  1. The worker’s injury is stable and stationary;
  2. The worker has received weekly compensation for the maximum statutory period of five (5) years; 
  3. The worker has received the maximum statutory compensation prescribed by the legislation. 

Before a common law claim is started, a worker’s degree of permanent impairment must be assessed for at least one (1) of their work related injuries.

A common law claim is commenced by serving a Notice of Claim for Damages on the employer and WorkCover Queensland, before the expiration of the  limitation period.

There are strict time limits associated for bringing a common law claim for damages in Queensland.  The general time limit is three (3) years from the date of your injury but it is longer in certain circumstances, so it is important to seek legal advice as soon as possible about making a common law claim.

The importance of receiving a Notice of Assessment

A worker must have a Notice of Assessment before starting a common law claim (unless they have a terminal condition). 

When a statutory workers’ compensation claim comes to an end, a worker may request that they undergo an assessment of their degree of permanent impairment (DPI), for a work related injury.  WorkCover Queensland must then issue a ‘Notice of Assessment’ to the worker which contains a lump sum offer based upon the DPI assessment.

Should a worker disagrees with the DPI contained in the Notice of Assessment for a physical injury, the worker can be referred to a Medical Assessment Tribunal (MAT) for assessment of their DPI. The MAT’s decision is final.

Where the DPI is 20% or more, then a worker is able to accept the lump sum offer and then pursue a common law claim against his or her employer.

If the DPI is under 20%, then a worker needs to make an ‘irrevocable’ election. If the worker accepts the lump sum offer, then no common law claim can be brought against the employer and the claim is finalised.  The worker is forever prevented from making a common law claim.

If the worker rejects or defers the lump sum offer, then a common law claim can be commenced against the employer. However, once a common law claim has been started, the worker cannot later on accept that lump sum offer.

To find out more about Notices of Assessment and DPI see our previous article here

Can I claim common law damages for injuries that have not been accepted during the statutory claim?

Additional unassessed injuries can be claimed when commencing a common law, as long as the claimed injury has not been previously rejected by WorkCover Queensland or your self-insurer.

These injuries are described as ‘unassessed injuries’. Unassessed injuries should be noted in the Notice of Claim for Damages if there is sufficient evidence that it was directly linked or caused by the workplace accident.

Upon receipt of the Notice of Claim for Damages, WorkCover Queensland will then review existing medical reports and records on file to determine if any of the unassessed injuries claim will be accepted. If existing medical reports and records are insufficient to determine acceptability of the unassessed injury, the worker will then have a period of time to provide medical evidence in relation to the unassessed injuries. In addition, the worker will require independent expert evidence confirming that they have suffered the unassessed injuries. This evidence can be obtained after the common law claim has commenced.

It is important for a worker to claim for all of their injuries in their common law claim because once the claim has resolved, the worker will be unable to seek any other damages for injuries arising out of the incident. 

If a worker identifies other injuries which they have suffered after the Notice of Claim for Damages has been delivered, the worker may include those within their claim for damages, provided that the worker can supply independent expert evidence in support of those injuries.

How long does a common law claim take?

It generally takes around nine (9) months to progress to a common law claim to a settlement conference, after the Notice of Claim for Damages has been served. Most claims are resolved at or prior to the conference. 

How long does Workcover Qld take to pay in a common law claim?

After a settlement is reached at the Compulsory Conference, WorkCover Queensland will release the settlement funds within approximately four (4) weeks after clearances/ refunds are obtained from statutory bodies like Centrelink, Medicare, DEEWR, Comcare and the NDIS.

WorkCover Qld permanent impairment lump sum versus common law payout

We strongly encourage workers to obtain independent legal advice when deciding whether to accept, reject or defer a lump sum offer which is contained in a Notice of Assessment.

If a worker decides to accept the lump sum offer and their DPI is less than 20%, they are unable to both pursue a common law claim and accept the lump sum offer from WorkCover Queensland. It is best that a worker considers their options carefully because if a common law claim is unsuccessful, a worker will not be entitled to a lump sum later.

However, a worker can accept the lump sum offer and also make a common law claim for damages if their DPI is 20% or more.

If a worker decides to reject the lump sum offer and commence a common law claim, the compensation amount will normally be higher compared to that of the lump sum payment. This is because, the amount will be based on factors such as compensation for pain and suffering, past loss of income, future loss of income and future out of pocket expenses.

Lump sum offers only compensates a worker for their injury which is dependent only on their degree of permanent impairment.

Do I have to go to Court to get a WorkCover Qld common law payout?

The answer is no. A WorkCover Queensland common law payout can occur during the pre-court process by way of informal negotiations or, at a Compulsory Conference. Less than 1% of common law claims actually proceed to a trial. 

If a claim does not settle informally or at Compulsory Conference, a claim may still settle out of court during the litigated stage. Every claim is different and expert representation improves your chances of finalising your case at the earliest possible stage.

Take action for fair compensation and support

If you find yourself unable to return to work due to a work-related injury and are navigating the reality of your workers’ compensation claim coming to an end, it is crucial to take action and seek the support you need.

Contacting a reputable law firm specialising in workers’ compensation, like Denning Insurance Law, can make a significant difference in your case. Experienced lawyers can provide personalised guidance, advocate for your rights, and work towards securing fair and just common law damages for your injuries. Reach out to us for the expertise and support necessary to navigate the process effectively.