An efficient and timely way to access common law compensation
Upon the ceasing of injury rehabilitation and support provided by WorkCover Queensland (or an employer’s self-insurer where applicable) an injured worker can, subject to certain conditions, elect to make a claim for common law damages. Such a claim is available where it can be established that an injury has occurred due to a breach of duty of care owed by the employer to the worker. This derives from the law of negligence, which is essentially a court based set of legal principles and rules, and indeed many years ago the only way an injured worker could bring a claim for common law damages was to sue in court.
Fortunately this was replaced some time ago by a mandatory pre-court process. This process is designed to resolve claims for common law damages before commencement of a claim in court is necessary. It essentially involves 3 basic steps:
- The notification of a claim for common law damages;
- The response to the notification by WorkCover Queensland (or an employer’s self insurer) as the insurer of the employer; and
- The holding of a Compulsory Settlement Conference attended by all the parties.
Only once that process has been completed can an injured worker commence a claim in court, but it is fair to say that the pre-court process in generally a successful process in resolving these claims begore court filing is necessary.
Looking at these steps in somewhat more detail, the initial claim notification document (called the Notice of Claim for Damages) is prepared by the injured workers’ lawyer and is a comprehensive statement of who the injured worker is, how they were injured, why it is alleged that the employer has breached its duty of care and particulars of the common law damages compensation sought on behalf of the injured worker.
That assessment of compensation also forms the basis for an offer of settlement contained in the Notice of Claim for Damages. So the Notice of Claim for Damages is a very important document which also has effect of detailing what is being claimed for right at the start of the process.
A copy of the Notice of Claim for Damages is delivered both to the employer and to WorkCover Queensland, and from there, WorkCover Queensland as the employer’s insurer (or a self insurer as the case may be) has the conduct of the claim. WorkCover will then investigate the claim in consultation with the employer. It may also seek to have the injured worker medically examined. Then, within 6 months, WorkCover is required to deliver what is called its liability response – a document that states whether WorkCover is making any admission of liability and/or any counter offer of settlement.
The compulsory settlement conference is to be held within 3 months following the date the liability response is issued. It is a meeting attended by the injured worker and their lawyers, and by WorkCover and its lawyers, with a view to negotiating a resolution of the claim.
As previously indicated, the “strike rate” of settling claims at the Compulsory Conference is relatively high, but if for whatever reason the claim does not resolve it is then open to the injured worker to commence a claim in court which must be done within 60 days following the date of the settlement conference.
This 9 month framework (6 months for WorkCover’s liability response + 3 months for a settlement conference) provides an efficient structure for the timely resolution for claims in a way that does not burden the parties worker with the obligations and costs of participating in actual court proceedings.
Of course this is no more than the most general overview of the WorkCover common law pre-court claims process. Legal representation in that claims process by an expert injury compensation solicitor is absolutely essential.
