This is an exceptionally good question and one that we are regularly asked by our clients to provide advice on.
If a worker is injured at work and is left with physical impairment or disability, an injured worker can request WorkCover issue a Notice of Assessment.
A Notice of Assessment is a particularly important document.
Our advice to our clients is to always seek legal advice regarding your rights and options with respect to any Notice of Assessment issued by WorkCover Queensland.
If the Notice of Assessment contains an assessment of whole person impairment which is less than 20%, then you cannot take the lump sum offer and also sue for common law damages. This is known as the irrevocable election.
If you have received a Notice of Assessment with an impairment of whole person equal to or more than 20% then you can accept the lump sum offer and sue for common law damages.
There are some cases although less common where the injuries are profoundly serious and life changing but there is no negligence or breach of duty of case.
There are also cases where there is a strong liability or negligence case, but the impairment rating is low and the injured worker is back to work and largely back to normal. In this situation, our advice might be to accept the lump sum offer rather than pursue a common law claim due to the economic viability of the case. There is simply no point pursuing a common law claim for damages if the costs of pursuing the claim is going to erode much of the damages or exceed the value of the case.
The key takeaway here is to get quality advice on both prospects of success and also the quantum [or full value] of the claim. You really need a winnable or strong liability case and sufficient quantum or damages to make the process of pursing a common law claim for damages worthwhile. If both don’t stack up, then the client might be better to take the lump sum offer. This is why it is really important for your solicitor to carefully look at the case and from all angles and perspectives before final advice is given on the overall viability of the claim.
While many law firms offer a ‘free case assessment’ not all free case assessments are the same. Much will depend on the amount of work that is undertaken by the solicitor or law firm and also their skill and expertise. Clients should ensure that they are with a solicitor with many years of experience in personal injury law and with a highly regarded law firm who specialize in personal injury law.
Some personal injury lawyers but not all have been recognized by their peers for their skill and expertise in a publication called the Doyles Guide to the Legal Profession. Several experienced and highly regarded personal injury lawyers can be found in the Doyles Guide and this can be a particularly good starting point for a client who is on the journey of finding their right lawyer for them and their case. Here is a link to the Doyles Guide to the Legal Profession: https://doylesguide.com/
The writer and the other owners/directors of vbr Lawyers are regularly featured in Doyles Guide.
Returning to the Notice of Assessment and offer of lump sum compensation issued by WorkCover Queensland, it is important to know and understand that injured workers have the right to request the Notice of Assessment be issued by WorkCover if WorkCover has not issued the document.
The Notice of Assessment is critical because it regulates an injured workers’ access to pursue a damages claim. In other words, you cannot generally commence a common law claim for damages without the Notice of Assessment. There are some exceptions to this general rule if a time limit is about to expire.
An injured worker can request the Notice of Assessment, or the injured worker can ask their solicitor to attend to this.
If an injured worker is unhappy with the offer of lump sum compensation in the Notice of Assessment, the injured worker can request a further medical assessment with another doctor on WorkCover’s panel. It is wise to obtain legal advice on this point as some doctors on WorkCover panel have more experience than others in areas of medicine and some are known for being more reasonable or more generous than others. An experienced and skilled personal injury lawyer will know whether it likely to be worthwhile to request a further medical assessment or not.
If you are unsure of whether to take the lump sum offer or not, it won’t cost you anything to obtain a case assessment from us and this should provide you with some peace of mind and confidence about whether you should take the lump sum offer or sue for common law damages or take the lump sum offer and sue for common law damages if your whole person impairment is 20% or more.
