Making common law claims – injuries between 15 October 2013 and 30 January 2015

For workers who sustained injuries between 15 October 2013 and 30 January 2015, the Workers' Compensation and Rehabilitation Act 2003 (the Act) in force at the time restricts access to damages to only those workers who have been assessed with an injury greater than 5% degree of permanent impairment (DPI).

This guide explains how WorkCover will typically approach a number of common scenarios for workers who are claiming damages. Every claim will be considered on its own facts however, as WorkCover takes its responsibility as a model litigant seriously, we will be firm but fair in applying the Act. WorkCover still seeks to resolve claims as expeditiously as possible, minimising the costs for workers and employers.

This policy is not intended to impact any rights a worker may have to disagree with the assessment of their permanent impairment under section 186.

Scenario 1 – all injuries for an event are assessed in a Notice of Assessment

WorkCover will arrange a permanent impairment assessment for all injuries that have been claimed as part of a statutory claim under section 179. We will then issue a Notice of Assessment (NOA) under section 185 once the DPI for all injuries has been assessed.

To ensure all accepted injuries are assessed, we will notify a worker and their solicitor of the injuries we have accepted prior to making the referral for an assessment. If the worker claims additional injuries at this time, we will need to investigate those injuries and make a decision about whether they are an "injury" within the Act prior to arranging assessment. If those additional injuries are rejected, the worker can apply for a review to the Workers' Compensation Regulator.

A worker can seek damages for all their injuries if they have greater than 5% DPI. In the case of physical and psychiatric injuries, whilst these cannot be combined to determine DPI (section 179(4)), if only the physical or the psychiatric DPI is greater than 5%, the worker can still claim damages for all their injuries.

If the NOA is issued within the last six months of the worker's limitation period, their limitation period is extended by section 302(1)(b). In urgent cases, sections 276 and 298 are available to be utilised, invoking section 302(2)(a). The determination of whether there is an urgent need to commence proceedings is at the discretion of WorkCover under section 276(5).

If WorkCover waives compliance with section 275 it will be subject to the acceptance of standard conditions that include:

A compliant Notice of Claim (NOC) must be lodged within 20 business days of receiving an NOA with greater than 5% DPI
The claim is withdrawn if DPI is ultimately assessed at less than 6%
Time limits for steps in the pre-proceedings process won't begin until the worker has both:

lodged a compliant NOC and

received an NOA with greater than 5% DPI.

Scenario 2 – the worker had an accepted statutory claim for the injury or injuries but they have not been assessed for permanent impairment

In most cases, workers will recover and return to work fairly promptly after their work injury. In this scenario, WorkCover will not arrange a permanent impairment assessment. However, a worker or their solicitor can request this assessment under section 179. The simplest way to do this is by uploading the request via our website. WorkCover will then arrange the assessment as quickly as possible for the accepted injuries and follow the process outlined in scenario 1.

If this request is made at least six months before the worker's limitation period has expired, their limitation period is extended by section 302(1)(c).

A worker does not need to have an impairment that is stable and stationary prior to making the request under s179. The assessment will only occur when the assessor is satisfied that the impairment is stable and stationary. This step will preserve a worker's rights.

In urgent cases, sections 276 and 298 are available to be utilised, invoking section 302(2)(a). The determination of whether there is an urgent need to commence proceedings is at the discretion of WorkCover under section 276(5). If WorkCover waives compliance with section 275 it will be subject to the acceptance of standard conditions discussed at scenario 1.

Scenario 3 – the worker's statutory claim was rejected and is on review or appeal

This applies to a very small proportion of claims. Until the claim is accepted, WorkCover cannot arrange a DPI assessment and the worker cannot lodge a Notice of Claim for Damages.

Scenario 4 – the worker has received a Notice of Assessment for some injuries but is now claiming additional injuries

Scenario 4A:

If the worker's DPI has already been assessed at greater than 5% DPI, they can lodge a Notice of Claim for Damages for all their injuries, including those that have not previously been assessed. WorkCover will investigate and assess these claims as part of the entire damages claim.

Scenario 4B:

If the worker's DPI has been assessed at 5% DPI or less, they can apply for the assessment of additional injuries under section 132A of the Act using the approved form and with evidence that satisfies section 105 of the Workers' Compensation and Rehabilitation Regulation 2003. WorkCover will then make a decision about whether the claimed injuries are an "injury" within the Act. Workers and employers can appeal this decision under chapter 13, part 3 of the Act.

If the additional injuries are accepted as an "injury", WorkCover will arrange assessment of the worker's DPI. If the worker's earlier DPI is impacted by this further assessment because the additional injuries have resulted in greater than 0% whole person impairment, a new DPI will be assessed applying section 179(4) and a new NOA issued.

Scenario 5 – the worker has not made a statutory claim for any injuries from an event

Workers can apply for the assessment of their injuries under section 132A of the Act using the approved form and with evidence that satisfies section 105 of the Workers' Compensation and Rehabilitation Regulation 2003. WorkCover will then make a decision about whether the claimant was a "worker" and whether their claimed injuries are an "injury" within the Act. Workers and employers can appeal this decision under chapter 13, part 3 of the Act.

If the additional injuries are accepted, WorkCover will arrange assessment of the worker's DPI and a NOA will be issued. If the worker's DPI is greater than 5%, they can then lodge a Notice of Claim for Damages.