Wondering what claim to make when something goes wrong at work? In the stress of the moment, it can be hard to know what steps to take next.
For many, a question that arises is how to tell the difference between a WorkCover claim and a common law claim. Are they the same? If not, what differentiates them? Read on to answer these questions and delve into the details.
WorkCover claims vs common law claims
A WorkCover claim and a common law claim are two different types of compensation claims available to workers injured in Queensland.
- A WorkCover claim is a "no-fault" statutory claim that provides set benefits, while a common law claim requires proving employer negligence and can result in larger lump sum payouts.
- A WorkCover claim is the first step and must be made before pursuing a common law claim.
- WorkCover claims have time limits for weekly payments and medical expenses, while common law claims provide compensation for future losses.
Common law claims are more complex and typically require legal representation. While some claims won’t progress past WorkCover, other cases may call for a common law claim where employer negligence must be proven.
WorkCover statutory claims
A WorkCover statutory claim is the initial step for any worker injured in Queensland. Some key points to note about WorkCover claims:
- They are "no-fault" claims, meaning you don't need to prove your employer was negligent.
- You can claim as long as your employment was a significant contributing factor to the injury. This also includes injuries on your journey to and from work (known as ‘journey’ claims).
- Benefits include weekly payments to cover lost wages, medical expenses, and rehabilitation costs.
- There are set time limits. Weekly payments are generally capped at five years, and medical expenses at five years after payments cease.
At the end of a WorkCover claim, you may receive a lump sum payment if you have a permanent impairment.
To make a WorkCover claim, you need to:
- Notify your employer of the injury as soon as possible
- See a doctor and obtain a work capacity certificate
- Lodge a claim with WorkCover Queensland (or your employer's insurer if they are self-insured)
WorkCover aims to decide on claims within 20 business days. If accepted, you'll start receiving benefits to support your recovery and return to work.
Common law claims
A common law claim is a civil legal action against your employer for negligence. Unlike WorkCover claims, you must prove your employer breached their duty of care which led to your injury.
Key aspects of common law claims to note:
- They can only be pursued after a WorkCover claim
- You must prove employer negligence
- They typically result in larger lump-sum payouts
- Compensation covers past and future losses, including pain and suffering
- There is a 3-year time limit from the date of injury to start a claim
Common law claims are more complex than WorkCover claims.
The process generally involves receiving a notice of assessment for permanent impairment from WorkCover and deciding whether to accept a lump sum offer or pursue a common law claim. You would then engage a lawyer to prepare and lodge a Notice of Claim for Damages and negotiate with the insurer on your behalf – or proceed to court if necessary.
How the two claims differ
Let’s delve into more detail on how and why these two claims differ.
Fault and liability
For a WorkCover claim, there is a no-fault system. You only need to show your employment contributed to the injury.
For a common law claim, however, you must prove your employer was negligent and that this caused your injury.
Types of compensation
There are set benefits under WorkCover, including weekly payments, medical expenses, and rehabilitation costs.
Common law claims calculate a lump sum payment covering past and future economic loss, pain and suffering, and medical expenses. This sum will be different for each case based on the circumstances.
Claim process
The WorkCover process is relatively straightforward; a claim form is lodged with WorkCover Queensland, and WorkCover will decide whether you are eligible.
Common law claims involve a more complex legal process requiring evidence gathering, negotiations, and possibly court proceedings.
Time limits
You must lodge a WorkCover claim within 6 months of the injury or becoming aware of it.
Generally, a common law claim must be started within 3 years of the injury date.
Legal representation
WorkCover can usually be managed without a lawyer, while a common law claim almost always requires legal representation due to complexity.
WorkCover as the first step
It's important to understand that a WorkCover claim is always the first step in the compensation process. You cannot skip straight to a common law claim. This is because:
- The WorkCover process provides immediate support and benefits while you recover.
- It allows your injuries to stabilise, which is necessary for assessing permanent impairment.
- The permanent impairment assessment at the end of your WorkCover claim determines your eligibility for a common law claim.
Only after receiving a Notice of Assessment from WorkCover can you decide whether to accept a lump sum offer or pursue a common law claim.
Potential benefits of a common law claim
While WorkCover provides valuable support, there are potential benefits to pursuing a common law claim:
- Larger compensation: Common law claims can result in significantly higher payouts, especially for serious injuries with long-term impacts.
- Future losses covered: Unlike WorkCover's time-limited benefits, common law compensation accounts for future economic losses and ongoing care needs.
- Pain and suffering: Common law claims include compensation for pain, suffering, and loss of enjoyment of life.
- Holding employers accountable: Common law claims can motivate employers to improve workplace safety.
Keep in mind, however, that common law claims also carry risks. If unsuccessful, you may not receive any additional compensation beyond your WorkCover benefits. It's crucial to seek legal advice to understand your options and the strength of your potential common law claim.
Check your rights: Smith’s Lawyers are work injury compensation experts offering risk-free claims with no upfront costs and free initial consultations.
