Asserting Your Rights: Common Law Claim Process
When you initiate a common law claim, you're asserting that your employer failed to provide a safe work environment and breached their duty of care towards you. In such a claim, the responsibility falls on you to substantiate that this breach directly led to your injury, causing not only physical pain but also emotional suffering and typically resulting in a loss of income.
This income loss pertains to both your historical earnings and potential future earning capacity—what you could have earned in the past if the injury hadn't occurred and what you might have earned in the future. The compensation awarded in response to a common law claim to address this income loss is referred to as damages.
A guide to the common law claims process:https://youtu.be/klcQWEexRfs
Navigating Your Choices: Common Law Claim Decision
When you opt to pursue a common law claim, your 'no fault' statutory claim for workers' compensation, if previously filed, concludes. Subsequently, your injury undergoes evaluation by a medical professional or the Medical Assessment Tribunal (commonly known as MAT). They determine the extent of your permanent impairment, known as your Degree of Permanent Impairment (DPI).
Following this assessment, WorkCover might extend a lump sum payment offer through a Notice of Assessment (NOA) letter.
What are your choices? Upon receipt of your NOA letter, a thoughtful review is crucial as you contemplate your decision. Three primary options lie ahead:
- Accept the offer.
- Reject the offer.
- Defer the lump sum payment offer for a later decision.
The choice you make is influenced by your DPI percentage, which falls into two brackets:
If your DPI is less than 20% Should you opt to accept the lump sum compensation payment and acknowledge your permanent impairment, the statutory claim concludes, and you receive the lump sum payment within seven days. This acceptance precludes you from pursuing a common law claim. Declining the lump sum offer leaves the door open for a common law claim, but if unsuccessful, the lump sum entitlement is forfeited. Deferring the decision allows you to decide on the lump sum offer later, but this deferral ends if you choose to pursue a common law claim.
If your DPI is 20% or above You can accept the lump sum compensation and still initiate a common law claim for damages. Notably, the 20% threshold cannot be achieved by combining multiple DPIs (e.g., physical and psychiatric injuries) to reach 20%.
How do you initiate a common law claim? Either you or your legal representative must submit a notice of claim for damages, outlining the allegations of negligence against your employer. Typically, this submission needs to occur within three years from the date of your injury. A legal professional usually handles the documentation, guiding you through the common law claim process. During this phase, you may choose to include additional injuries not initially part of the statutory claim.
Embarking on a Common Law Claim without a Statutory Claim
For some injured workers, the choice may be to initiate a common law claim without pursuing statutory benefits. In such instances, the claim follows the standard investigation and review process, devoid of weekly compensation and lump sum offerings. Upon approval, you receive a Notice of Assessment, outlining the pertinent Degree of Permanent Impairment (DPI).
What unfolds next? Following the claim submission, you transition into the pre-proceeding phase. In this stage, WorkCover delves into the claim, determining whether the employer bears liability for the injury, without weekly compensation or lump sum considerations. Further medical appointments might be necessary. Subsequently, negotiations commence towards reaching a resolution. Explore more about the pre-proceedings phase.