When a worker has been injured and left with an ongoing impairment or disability from a work-accident, WorkCover will ultimately issue a Notice of Assessment.
The Notice of Assessment is a very important document which has legal consequences or implications.
When WorkCover is satisfied that an injured workers’ injuries (both physical and psychological) have stabilized or reached maximum medical improvement, they can or will issue a Notice of Assessment.
- The Notice of Assessment creates an entitlement for an injured worker to pursue a common law claim for damages if they wish to do so.
- The Notice of Assessment will also contain an offer of lump sum compensation if there is a degree of permanent impairment.
If an injured worker has sustained a significant injury and has been assessed as having an impairment of whole person which is 20% whole person or more, it is called a certificate injury.
- A certificate injury simply means either the physical and/or psychological injury has been assessed as causing a degree of whole person impairment which is 20% or greater according to the Guides to the Evaluation of Permanent Impairment.
- A certificate injury allows an injured worker to accept the lump sum offer and also pursue a common law claim for damages.
A non-certificate injury is any injury which is assessed as being less than 20% whole person impairment.
If an injured worker receives a Notice of Assessment and the impairment rating is less than 20% whole person and they accept the lump sum offer from WorkCover, they cannot pursue a common law claim as they have made what is called an irrevocable election.
In our experience, there are many non-certificate injuries which translate well to a common law claim for damages and with substantial damages outcomes being achieved.
In other words, you do not need a certificate injury to justify a common law claim for damages.
In our experience, most injured workers do not achieve a certificate injury and that does not mean that a common law claim should not proceed.
When the Notice of Assessment has been issued by WorkCover, and if an injured workers has not already obtained legal advice regarding their rights and options, we strongly recommend doing so.
It is also important to remember that there is a three-year time limit to commence the common law claim for damages.
If the three year time limits is about to expire and a Notice of Assessment has not yet been issued, a request to WorkCover to issue the Notice of Assessment will provide an extension of the limitation period so that when the Notice of Assessment issued, the injured worker then has six months to start the common law claim.
WorkCover will either issue the Notice of Assessment without receiving a request from the injured worker or, if a Notice of Assessment has not been issued, an injured worker can simply ask WorkCover to issue the Notice of Assessment or their lawyer can attend to this for them.
The main benefit of having a certificate injury is that you can accept the lump sum offer and also sue for damages plus if you have a certificate injury you are entitled to some but not all of your legal costs being paid by WorkCover if the claim is successful.
If you have a non-certificate injury, you are only entitled to some of your legal costs being paid if the matter proceeds to trial and you exceed your written final offer at the compulsory settlement conference.
In our experience, most but not all common law claims are capable of resolution prior to trial and many cases are able to be resolved at the compulsory settlement conference with the lawyers who act for WorkCover.
One of the key takeaways is for injured workers to be aware of their rights and options with respect to access to common law damages and to always seek advice before the three-year time limit expires regarding their WorkCover claim.
