The answer is yes.
If you have been injured at work and with injuries sufficiently serious to justify a common law claim for damages and your employer no longer exists or has gone out of business, you can still pursue a claim for damages and recover compensation.
Let’s have a quick recap on the difference between a statutory claim and a common law claim and the importance of the Notice of Assessment issued by WorkCover.
If you have been injured at work, and regardless of fault, you can lodge a claim with WorkCover. At the end of the WorkCover claim and if you have sustained an injury leaving you with a permanent injury or disability, you will be eligible to receive a Notice of Assessment which will contain an offer of lump sum compensation.
If the whole person impairment is equal to or more than 20%, you have achieved a certificate injury which allows you to accept the lump sum offer and sue for damages. If less than 20%, you need to make an irrevocable election which simply means you decide whether to accept the lump sum offer or pursue the damages claim but you cannot do both.
An injured worker can request a Notice of Assessment from WorkCover or WorkCover will often issue a Notice of Assessment when they are intending to finalise a statutory claim.
A statutory claim with WorkCover will often or usually finalise when an injured worker’s injury or injuries have stabilised or reached maximum medical improvement.
WorkCover will organise for a doctor on their panel who has done the necessary training to conduct a medical assessment and then send a written report to WorkCover and if the doctor considers the injury or injuries to be stable and stationary or having reached maximum medical improvement then WorkCover will issue the Notice of Assessment.
The Notice of Assessment is a particularly important document which has significant legal implications for all injured workers.
All injured workers should seek legal advice regarding their rights and options when the Notice of Assessment has been issued.
Clients or potential clients often seek advice from a lawyer when they are considering their options about whether to accept a lump sum offer from WorkCover or to pursue the damages claim.
If you have been on WorkCover for a period of time and your employer goes out of business or closes for whatever reason, it is normal for clients to wonder whether they can still pursue a damages claim if the employer no longer exists.
WorkCover Queensland is the insurer for most employers in Queensland. If your employer failed to take out a WorkCover policy and you are injured at work, WorkCover will still accept your claim and then pursue the employer for the cost of your claim.
If your employer closes or becomes insolvent while you are on WorkCover, you can still pursue a damages claim. There is a section within the Workers Compensation & Rehabilitation Act 2003 which allows an injured workers to commence court proceedings by naming WorkCover Queensland as the Defendant if the employer was an individual and can not be adequately identified, is dead or can not practically be served or if the employer was a corporation and has been wound up.
In plain english, this simply means that instead of naming the employer as the defendant you can name/sue WorkCover Queensland and WorkCover will respond and will continue to indemnify the employer as if it still existed.
If the claim has merit and is successful, WorkCover will pay out the claim which is the same situation if the employer still exists.
If the matter proceeds to trial and the injured worker is successful, WorkCover will pay the value of the judgment award and any legal costs if legal costs are ordered in favour of the injured worker.
If the employer no longer exists, this might or may have a potential impact on the claim for past and future economic loss as it won’t be possible to assert that the injured person was likely to have a long or ongoing career or job opportunity with this particular employer, however, this issue or concern might be addressed or even easily addressed by the injured person being able to explain their relevant work experience and their prospects of finding alternative employment had they not been injured with a different employer on the open labour market.
