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Advance Payment on Damages Guidelines

Purpose of Guidelines

The purposes of these guidelines are to consider where it is appropriate for an advance payment on damages to be made.

A claimant may submit a request for an advance payment on damages within 30 days following confirmation of receipt by WorkCover of the Notice of Claim.

WorkCover will consider these requests on a case by case basis to determine the appropriateness of any advance that maybe made.

Criteria

  1. The Claimant will provide WorkCover written correspondence (either directly or through their solicitor) that they are facing financial hardship and seek an advance on their damages, setting out the following matters in that correspondence:
    1. Reference to their Notice of Claim.
    2. A statement from their claimant’s solicitor advising that the claimant is facing financial hardship (e.g. inability to repay mortgage, living expenses) and the claimant has instructed their solicitor to contact WorkCover Queensland to seek an advance on their damages.
    3. Evidence in relation to their impecuniosity such as bank balances, outstanding bills from creditors or other financial institution.
  2. WorkCover’s decision is entirely within its discretion, and not open to challenge. WorkCover will review requests for the advance of damages, taking into account the following matters:
    1. Consideration of the genuineness of the financial hardship that has been advised, and review of supporting information.
      1. In some circumstances, WorkCover may seek additional information regarding the claimant’s financial hardship. This will be dealt with on a case-by-case basis and may require the claimant to furnish evidence of their hardship (e.g. statutory declaration).
    2. Review of the common law claim.
Note

In order to consider the advance on damages, WorkCover must be satisfied that upon review of the facts, it is clear that:

  • the employer was at least 80% liable for the injury that is the subject of the claim;
  • the claimant has entitlement to seek damages; and
  • that the claimant is facing genuine financial hardship.

Where there is the possibility of a third party sharing liability to pay damages, WorkCover will need to be satisfied that any advance does not exceed its likely contribution to damages.

  1. WorkCover will endeavour to respond to the request for the advance on damages within 14 days of the request. If there are any unforeseeable delays, WorkCover will promptly notify the Claimant’s Solicitor and provide a revised time frame in which WorkCover will respond to the request.
  2. If WorkCover is satisfied with the request, it will agree to a one-off advance of up to 20% of the damages that would be payable to the Claimant. The calculation of the 20% of the damages is based upon a quantum assessment undertaken by WorkCover. The advance must not be used to cover any outlays that have been incurred during the course of managing the Claimant’s common law matter.
  3. The Arrangement must be formalised in a short form agreement between WorkCover and the claimant that sets out:
    1. The advance against damages:
      1. Is an advance of a general nature and is not an admission by WorkCover Queensland of its liability to pay any head of damage, nor the quantum of any particular head of damage;
      2. Is advanced without admission by WorkCover Queensland that the subject matter of the advance, or any part of the advance, is properly recoverable by the claimant from WorkCover Queensland by way of damages in connection with the claim;
      3. Is to be set off against past heads of damage in connection with the claim and the parties agree that, to the extent that such damages are set off, no interest on past heads of damage will be recoverable by the claimant.
      4. For the purposes of sub-clause (c) hereof, the advance is to be set off in the following
        order of priority:
        1. Past general damages.
        2. Past special damages.
      5. Is to be deducted from any settlement or judgement in favour of the claimant after the
        payment of any statutory refunds and before the balance settlement or judgement monies
        are to be paid to the Claimant.
    2. Within 14 days of signing the Agreement the parties must agree to a date for a compulsory
      conference to progress the common law claim.
    3. The Arrangement will not be brought to the attention of any Court of competency until after any
      judgement has been entered into.
    4. If WorkCover becomes aware of any additional facts or circumstances that changes its view on
      liability, WorkCover may take steps to recover the advance payment in full.