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At the end of your statutory WorkCover claim, you may undergo an independent medical examination and then be presented with an offer of compensation within a document referred to as a ‘Notice of Assessment.’ 

The way that you then respond to that offer will impact your legal rights and may potentially preclude you from pursuing a claim for damages (monetary compensation) that you are rightfully entitled to. That claim for damages is called a ‘common law claim[RT1] .’  

To protect your rights, it is essential that you understand your Notice of Assessment, the options available to you and the effect of accepting, appealing or rejecting any offer made by WorkCover.  

To obtain professional advice about your specific circumstances from one of our WorkCover personal injury lawyers, contact us on 3236 1800. 

What is a Notice of Assessment? 

A Notice of Assessment is a document that contains key pieces of information about your work-related injuries. WorkCover should send you a Notice of Assessment after you undergo an assessment of permanent impairment with a suitably qualified doctor. Such an assessment should, however, only occur once an appropriate medical practitioner has found that your injury is ‘stable and stationary’, which means that it has reached maximum medical improvement and is unlikely to improve with further rehabilitation or treatment.

The Notice of Assessment should include: 

1. a list of all the work-related injuries you have sustained; 
2. the degree of permanent impairment associated with each injury, as assessed by the doctor who examined you or, in the case of a psychiatric injury, the Medical Assessment Tribunal; and 
3. a momentary lump sum offer of compensation based on the degree of your permanent impairment you have been assessed as having. 

The lump sum offer is a one-off payment designed to compensate you for any permanent impairment you have sustained as a result of your accepted work-related injuries. As the lump sum offer is calculated on the basis of your degree of permanent impairment alone, it is designed to only compensate you for the injury itself, and does not compensate you for any other losses you may incur because of the injury, such as lost wages or treatment expenses. 

What if I disagree with my Notice of Assessment? 

If you do not agree with your assessed degree of permanent impairment in respect to a physical injury, you are entitled, within twenty (20) business days of receiving the Notice of Assessment, to request WorkCover arrange another examination with a different doctor or the Medical Assessment Tribunal. 

Following any further examination, you will then be issued with a revised Notice of Assessment. Any increase or decrease in your degree of permanent impairment on re-examination will result in a corresponding increase or decrease in WorkCover’s offer of compensation in the revised Notice of Assessment you receive. Importantly, if you are assessed as having a lower degree of permanent impairment on re-examination, you will not be able to accept WorkCover’s prior higher offer. 

If you elect to be re-examined by a doctor and are still not satisfied with WorkCover’s offer, you will then have a further twenty (20) business days from the receipt of the revised Notice of Assessment to request WorkCover arrange for you to undergo a further re-examination by the Medical Assessment Tribunal. 

The decision of the Medical Assessment Tribunal cannot be appealed unless it makes an error of law, which is unusual. 

What is a common law claim? 

A common law claim is a claim for damages that can be made by a person, or in limited circumstances a loved one, who has been injured or suffered a loss as a result of someone else’s negligence. 

In respect to WorkCover claims, to be successful in pursuing a common law claim against your employer, you must establish that, during the course of your employment, your employer breached a duty of care it owed to you such that it was negligent, and that such negligence caused you to sustain an injury.

A common law claim is designed to, as best it can, place an injured person back in the position that they would have otherwise been in, had they not been injured. You may, therefore, be entitled to damages for the loss of enjoyment of life, past and future lost wages, past and future treatment expenses, past and future loss of superannuation benefits, among other types of damages. 

Importantly, as WorkCover’s offer in a Notice of Assessment only compensates you for the injury itself and not any further loss you may incur because of your injury, in some circumstances, the amount of damages that you may be entitled to through a common law claim may far exceed the offer in the Notice of Assessment. 

The law regulating compensation claims is complex and different laws may apply to your entitlements to pursue damages depending on your individual circumstances. Regardless of the circumstances which led to your injury, it is essential that you promptly seek legal advice to understand your entitlements and to protect your rights. 

What happens if I accept the offer in my Notice of Assessment? 

Once you accept the offer in your Notice of Assessment, save for the exception detailed below, you will be forever precluded from pursuing a common law claim for damages. That is so, even if you may have been entitled to a far greater amount of money through a common law claim.

The only circumstances where you will be able to accept the offer in your Notice of Assessment and pursue a common law claim is when you are assessed as having a degree of permanent impairment of over 20%, which is known as a “certificate injury”. 

Hong long do I have to make a decision about the offer in my Notice of Assessment? 

You have twenty (20) business days to either accept, appeal, or reject WorkCover’s offer. 

If you do not respond to WorkCover within that time, the offer will automatically be deferred which means that, whilst you cannot appeal the decision, you can accept the offer at some later time.  

If you lodge a common law claim, however, the offer will automatically be rejected. 

This means that, once the common law claim has been initiated, you cannot return to WorkCover and accept the offer in the Notice of Assessment, regardless of the outcome of your common law claim. 

For this reason, it is best to seek legal advice early in your statutory claim so investigations can be undertaken, particularly with respect to whether your injury was caused, or materially contributed to by, any negligence on the part of your employer. 

Additionally, there is an overarching three year statutory limitation period that applies to any personal injury claim you may wish to pursue. This means that, except in very limited circumstances, if you do not commence court proceedings or take one of a limited number of steps to protect your right to claim damages within that three-year period, you will almost certainly forever lose your right to do so. 

For this reason and because decisions made throughout the course of the statutory (no fault) phase of your WorkCover claim can have a significant impact on you over the balance of your life, it is important you seek professional advice from a compensation lawyer in respect to your entitlements and your prospects of success in pursuing a claim as soon as possible. 

At Fisher Dore Lawyers, our compensation team offers timely and professional advice that is tailored to your individual circumstances. Contacting us early on in your WorkCover claim will allow us to properly investigate the circumstances giving rise to your injuries, their impact on you, as well as whether they were caused by your employer’s negligence. 

We are flexible in the manner in which we can assist you, including by acting on a no win no fee basis. Unlike many other firms, we also do not charge uplift fees or fees for care and consideration which can have the undesired effect of, without really undertaking any additional legal work, resulting in inflated legal costs at the end of the claim. 

Instead, we work strategically from the outset of our relationship with you to progress and investigate your claim which also keeping your legal fees to a minimum. 

If you have been injured at work and want professional advice in respect to your entitlements and prospects of success in pursuing a claim, contact one of our WorkCover personal injury lawyers on 3236 1800.