Seeking compensation from your employer without a statutory claim

30 January 2023

Dominic Jorgensen | Rees R & Sydney Jones

Dominic Jorgensen

Senior Solicitor, Litigation

I’ve been injured at work. What kind of compensation can I receive?

If you’ve sustained an injury in the course of your employment, there are two avenues you can take to seek compensation – a statutory claim and a common law claim. Statutory claims are commonly known as workers’ compensation claims or compo claims.

In most cases, if a worker wants to claim common law damages for a workplace injury, it is necessary to have an accepted statutory claim with your employer’s insurer from the outset.

A statutory claim offers benefits from your employer’s insurer (usually WorkCover Queensland), regardless of who was at fault for causing the injury. These claims typically involve the payment of weekly compensation benefits during periods of incapacity and also the provision of rehabilitation services and medical treatment aimed at returning the worker to the workforce as soon as possible.

Once your injuries are deemed to be “stable and stationary”, WorkCover will arrange for the assessment of your injuries prior to issuing a Notice of Assessment. The Notice of Assessment will usually contain an offer of lump sum compensation. This process effectively finalises your statutory claim for benefits. After you receive your Notice of Assessment and lump sum offer you should obtain advice from a lawyer, as accepting a lump sum offer may impact your ability to recover damages from your employer in the future.

In addition to receiving statutory benefits, some workers may seek to recover further compensation for their injuries in what is known as a common law claim. This is a fault-based scheme which requires you to establish that the injury was sustained in circumstances where your employer’s negligence caused your injury. Because a common law claim takes into account your individual circumstances, it often provides greater compensation than a statutory claim.

It is important to note that you cannot commence a common law claim until after you have received a Notice of Assessment from WorkCover Qld.

I have never lodged a statutory claim for workers’ compensation benefits – can I still pursue a common law claim for damages against my employer?

Over the years, I have found that it is a common perception amongst our clients that they must have an accepted statutory claim with WorkCover before they can seek common law damages for a workplace injury. As it turns out, this is not necessarily the case.

Section 132A of the Workers’ Compensation and Rehabilitation Act enables an injured worker who has never received workers’ compensation benefits to open the gate on a common law claim.

I recently acted for an injured worker who was encouraged by his employer not to lodge a statutory claim after a serious workplace accident. He was hopeful of returning to work with the same employer but this never eventuated and he was left without any financial means of support.

By the time that he contacted me, he was out of time to lodge a statutory claim with WorkCover Qld. After investigating his claim and obtaining statements and medical reports on his behalf, I was able to make an application on his behalf under section 132A which was eventually accepted by WorkCover Qld.

This then enabled him to obtain damages for his injuries even though he had never had a statutory claim accepted by WorkCover.

If you’ve suffered a workplace injury, navigating an appropriate course of action to suit your circumstances can be complex. Our expert team of litigation lawyers are here to help you achieve the best possible outcome. Contact us today.

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