Skip to content

Common Law Unassessed Injuries

This process may be applied where a claimant has already received a Notice of Assessment for the injuries accepted during their statutory claim and the Notice of Claim for Damages (NOC) identifies additional unassessed injuries. The onus of proof remains with the claimant to demonstrate that additional injuries claimed in the NOC are as a result of the original event. If an injury has previously been rejected it cannot be included as an unassessed injury. See: Connor v Queensland Rail [2016] QSC 270.

This process does not apply in circumstances where section 185 (2) of the Workers' Compensation & Rehabilitation Act 2003 (the Act) applies.

The aim of this process is to work with the claimant's solicitor to:

  • Avoid delays in resolution of claims caused by waiting on medical evidence for the determination of unassessed injuries.
  • Avoid costs in obtaining medical reports where they are not required.
  • Set clear timeframes that will help expedite the unassessed injuries process.

When does this process apply?

Where possible we would prefer to expedite the resolution of claims utilising the unassessed injuries process. This process only applies if:

  • The claimant already has a Notice of Assessment for previously accepted injuries from the same event.
  • The claimant is prepared to use the unassessed injuries process and does not require us to make a formal decision.
  • The unassessed injuries will not have a significant impact on the quantum or settlement amount.
  • The unassessed injuries are not part of a common law only statutory claim.
  • The unassessed injuries are not considered to be the dominant or primary injury.

What happens if we apply this process?

If we apply the unassessed injuries process to the claim:

  • We will make no formal decision about whether or not to accept the additional injuries.
  • Permanent impairment cannot legislatively be assessed, therefore no Notice of Assessment for the additional injuries will be issued.
  • If appropriate we will only make an allowance during settlement for the additional injuries if the claimant produces evidence to support the additional injuries.
  • We will settle the claim for all injuries from the event (both assessed and unassessed).
  • If the matter doesn't settle during pre-proceedings we undertake to make all reasonable efforts to determine the injury during the 60 days following the compulsory conference.

What does the process entail?

On receipt of a NOC claiming additional injuries we will review existing medical reports and records on file to determine if any of the unassessed injuries' omission from the Notice of Assessment was an oversight or if those medical reports and records demonstrate sufficient evidence of an "injury" for the purposes of section 32 of the Act. If there is unequivocal evidence of the injury and its link to the event, we will make a determination and accept the injury.

If at the time of receiving the NOC there is insufficient evidence to support the acceptance of the unassessed injury we will issue a compliance response that details:

  • The unassessed injuries process may be appropriate in this particular claim.
  • The decision regarding whether the unassessed injuries process will be applied will depend on whether the claimant provides supporting information within 30 days of the date of the compliance response.
  • The responsibility lies with the claimant's solicitors to provide, within 30 days of the date of the compliance response, medical evidence in relation to the unassessed injuries, or if that is not possible, a clear response as to how and when the claimant will proceed and provide medical evidence.
  • If no evidence is supplied within 30 days (or any agreed exemption) of the date of the compliance response, the unassessed injury will be rejected and the claimant will be provided with Reasons for the Decision.

If we have received little to no evidence within the 30 days however the claimant has submitted a clear response as to what undertakings they will be conducting and a reasonable timeframe for when this will be occurring, we may be prepared to schedule the compulsory conference.

However, should we still not have the evidence we require to make a decision after the claimant's response timeframe has expired, we will continue onto compulsory conference but on the basis that all injuries (assessed and unassessed) will be included in the settlement and in the discharge.

These unsubstantiated unassessed injuries will not be taken into consideration for quantum and offer purposes. In the event the matter does not resolve at compulsory conference we would make every effort to issue a formal decision regarding the additional injuries within 60 days.

Additional injuries added after receipt of NOC

If the claimant requests the addition of an unassessed injury after the Notice of Claim has been served, we will request the claimant submit a statutory declaration containing further information on the unassessed injury including:

  • date of onset of symptoms
  • nature of symptoms
  • severity of symptoms in comparison to those arising from the assessed injury
  • name and address of practitioners consulted.

We will also request the claimant provide within 30 days of the date of receipt of the statutory declaration, medical evidence in relation to the unassessed injury or a clear response as to how and when the claimant will proceed to obtain and provide that medical evidence.

WorkCover will not consider the unassessed injuries process for injuries added in Court pleadings.