What is the difference between a workers’ compensation (WorkCover) statutory claim and a common law claim?

There are two type of claims that you might consider making if you are injured at work in Queensland.  These are:-

• Statutory Claims; and
• Common Law Claims.

All claims must first start as a statutory claim. WorkCover is the insurer for most work places in Queensland, however some employers are self-insured.

Statutory Claims

The statutory claim system is a ‘no fault’ system.  This means that injured workers may make a claim for benefits regardless of who is at fault for their injuries.  Statutory benefits include payment of income lost as a result of the injury, medical and treatment costs, travel expenses and a lump sum to compensate for permanent impairment caused by the injury.  Lump sums offered at the end of a statutory claim are usually quite small.

Common Law Claims

A common law claim can only be started after a statutory claim has been lodged and accepted by WorkCover (or the self-insurer).  To be eligible for compensation in a common law claim a worker must be able to prove negligence on the part of the employer.  In most cases, injuries in the workplace are avoidable, which usually will entitle a worker to pursue a common law claim.

In a very small number of claims, a worker may need to have sustained a certain degree of permanent impairment to be eligible for common law compensation.

Where a worker is able to establish negligence against the employer, compensation will be awarded at a significantly higher amount than the lump sum offered at the end of a statutory claim.

Common law damages will include amounts for pain and suffering, economic loss and future medical treatment.

WorkCover laws are very complicated and it is important that you seek advice from an expert personal injuries lawyer as early as possible to ensure that you receive your maximum entitlements.

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What is the Statutory Law Process?

  1. Once your claim has been lodged with WorkCover Queensland, a claims representative will be allocated to determine your claim. WorkCover may speak to you and your employer to get as much information as they need to make a decision about accepting your claim.
  2. You must submit a Work Capacity Certificate to WorkCover with your application for compensation.
  3. Once your claim is accepted WorkCover will assist you with the following. Weekly compensation for lost wages, medical and rehabilitation expenses, travel and other allowances, death benefits and funeral expenses and returning to work support.
  4. Your statutory workers’ compensation claim will cease when your injury is stationary and stable.

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What is the Common Law Process?

  1. WorkCover and the employer are served with a document called a Notice of Claim for Damages. This is a document usually prepared your lawyer. It contains information about you, your injuries, why they think the employer was responsible for the injury and an offer of settlement.
  2. Once the Notice of Claim has been served, WorkCover contact the employer to obtain any information that may assist WorkCover to make an assessment of the prospects of success of the claim and the likely compensation payable.
  3. WorkCover may engage an investigator to determine how the injury occurred. WorkCover may also obtain information from your treating doctors, previous employers or any documents relating to previous claims.
  4. Copies of all relevant documents collected by WorkCover during their investigation are provided to the your lawyer.
  5. Once WorkCover’s investigations are complete, WorkCover will advise your lawyer whether they accept liability or not, and then start informal settlement negotiations, usually by telephone or correspondence.
  6. If the informal settlement negotiations do not result in a settlement of the claim, a formal settlement conference will be held. This is a face to face meeting between you and your lawyer, and WorkCover and their lawyers. A representative of the employer will be invited to attend.
  7. If the claim does not resolve at the settlement conference, you will be required to issue court proceedings and proceed towards a trial.
  8. Most claims resolve before or at the settlement conference.

Time Limits For Your Compensation Case

These are very important.

For Statutory Benefits:

If you have not already applied for workers’ compensation benefits, an Application for Workers’ Compensation must be lodged with WorkCover Queensland (with a current medical certificate confirming you are unfit for work) within 6 months from the date of your accident or the onset of symptoms.

For Common Law Damages:

A compliant Notice of Claim for Damages must be served on WorkCover Queensland within 3 years from the date of your accident.  If this does not occur, your common law damages claim becomes statute barred.  This means that you will lose all of your rights to recover common law damages for your injury.

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