In this blog, I will be discussing what is meant by a statutory claim and a common law claim with respect to workers compensation.
What is a Statutory Claim?
A statutory claim is a reference to a compensation claim made with WorkCover Queensland (“WorkCover”) or any self-insurer.
If a worker is injured at work and time off work is required and also medical treatment, there are a few ways to commence the statutory claim with WorkCover which are all quite simple and easy.
A claim can be lodged with WorkCover by telephone, online, via email or via your GP.
In the writer’s experience, the most efficient way to lodge a WorkCover claim is when the injured worker is visiting their GP for some initial treatment and medical advice, the GP can simply fax a workers compensation medical certificate to WorkCover and the claim process will begin at this point.
A claim file number and claims office will be allocated, and the claims officer will then go about obtaining information from the employer and the injured worker regarding the work accident or injury or illness and then a decision will be made to accept or reject the claim.
The WorkCover legislation provides that WorkCover is to make a decision about accepting or rejecting the claim within 20 business days.
If WorkCover cannot make a decision within 20 days, WorkCover will send a letter explaining why it has been unable to make a decision within the 20 business days. This generally not required unless the claim relates to a pure psychological injury such as bullying and harassment. WorkCover will regularly take more than 20 business days to make a decision to accept or reject a pure psychological injury and this is often due to witnesses being identified and interviewed for the employer and the injured worker.
If the claim is straightforward and uncontested, WorkCover will then accept the claim and then organize for the payment of the injured worker’s replacement wages and funding for medical treatment and rehabilitation.
The payment of the replacement wages is generally at 85% of the injured workers’ normal weekly earnings for the first six months and then it drops down to 75% for up to 18 months. At 2 years post-injury if the injured worker is still unable to work, WorkCover will arrange for an assessment of whole person impairment and if the impairment is 15% whole person or higher then the injured worker can remain on 75% of their normal weekly earnings until the claim ends.
The statutory claim will end when the injured worker’s injuries have stabilized or reached maximum medical improvement.
WorkCover will then issue a Notice of Assessment which is a very important legal document which regulates access to common law damages.
Generally speaking, an injured worker cannot commence a common law claim for damages until a Notice of Assessment has been issued.
What is a Common Law Claim?
A common law claim is simply a reference to a claim for compensation or damages being pursued after the conclusion of the statutory claim.
If or when an injured worker accrues the right to sue for damages, a Notice of Claim for Damages needs to be prepared and delivered to WorkCover and the employer.
If an injured worker has suffered a long-term injury which has had an ongoing impact on their ability to work and for the future, then seeking advice from a lawyer with experience and expertise in WorkCover common law claims or personal injury law in general is a good idea.
Many lawyers and law firms with experience and expertise in personal injury law will offer a free case appraisal or assessment before the injured worker is required to sign a client agreement or retain the law firm.
A common law claim can achieve a financial outcome which is often superior or significantly superior to simply accepting a lump sum offer from WorkCover when the Notice of Assessment is issued which coincides with the end of the statutory claim.
If a Notice of Assessment is issued and the injured worker has a whole person impairment equal to or greater than 20% then they can take the lump sum offer and sue for common law damages. However, if the impairment is less than 20% then the injured worker cannot do both. If the injured worker wishes to pursue a common law claim, then they cannot accept the lump sum offer if the impairment is less than 20% whole person.
A common law claim will allow an injured worker to recover damages or compensation for some or all of the following:-
- Pain & suffering and loss of quality and the enjoyment of life;
- Out of pocket expenses such as medication, travel, pharmaceutical costs;
- Past loss of income;
- Future loss of income;
- Past loss of superannuation;
- Future loss of superannuation;
- Future medical treatment;
- Future retraining costs
Before commencing a common law claim for damages, it is important for an injured worker to receive legal advice regarding prospects of success, the likely quantum [or full value] of the claim, the likely legal costs of pursuing the common law claim and the likely or projected ‘in hand’ figure if the common law claim proceeds and is successful.
