You can make a common law claim for lump sum compensation against your employer if they (or another worker) somehow caused or contributed to your work injury through negligence, wrongful act, or omission. Workcover Queensland represents your employer in such cases (unless your employer is self-insured), and meets any payments to be made in response to the claims.
The first step in the claims process if you have been injured at work and want to pursue a claim for common law compensation, is to serve WorkCover and your employer with a Notice of Claim. This must be done within three years of the date your injury occurred.
The Notice of Claim is formal document that sets out:
Once the Notice of Claim is served, WorkCover will determine whether to accept or reject the claim based on the details you provided.
If WorkCover rejects the claim, you may be able to appeal to WorkCover’s Regulatory Authority, QComp and above QComp, the Industrial Magistrates Court.
Your Notice of Claim must be lodged with WorkCover within three years of the date of your injury. If you do not lodge a Notice of Claim within three years, you are barred from proceeding with a claim for lump sum compensation.
Complications can occur in circumstances where a worker has an injury that has accrued over time, or one that arises as a consequence of an earlier incident. Many claims have focused solely on the question of exactly when the injury occurred.
The safest course is always to lodge a Notice of Claim at the earliest possible opportunity.
Once WorkCover accepts your claim, they have 6 months to investigate before advising you whether they accept or reject the liability and make an offer of settlement.
No matter what WorkCover’s response is regarding liability, it is usually necessary for you to have:
Once WorkCover has completed their investigation, you and WorkCover will participate in a “compulsory conference” to try to negotiate a settlement. If you can reach agreement, you and WorkCover will enter into a Deed of Settlement, compensation will be paid, and the process ends.
If you can’t reach agreement at the compulsory conference, you need to start court proceedings. Depending on the nature of your injury, the court proceedings will involve the Magistrates Court, the District Court, or the Supreme Court of Queensland.
To commence proceedings, you file a claim and a Statement of Claim. WorkCover will respond in a Notice of Intention to Defend and Defence. You will then file a Reply to the Defence before you can engage in formal disclosure to one another.
At the conclusion of disclosure, you will participate in a court ordered mediation. This is similar to the compulsory conference, but with the involvement of a mediator to help you reach an agreement. A mediator is usually a senior barrister or a Queen’s Counsel (QC).
If you can reach agreement, you and WorkCover will enter into a Deed of Settlement, compensation will be paid, and the process ends.
If your claim is still not settled at the end of a mediation, the claim will proceed to a trial, where the judge will make a determination on your claim by ruling:
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