Common Law Unassessed Injuries

The Common Law Unassessed Injuries Process has been developed to support WorkCover Queensland’s (WorkCover) compliance with the model litigant principles. 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. This process ensures such common law claims are dealt with promptly and without causing unnecessary delay.

The objective of this process is to work with claimant solicitors to expedite the resolution of common law claims involving unassessed injuries by:

• Minimising delays that arise from waiting for medical evidence to determine unassessed injuries.
• Reducing costs associated with obtaining medical reports when they are not necessary.
• Setting clear timeframes that will help expedite this process and deal with claims promptly.

When may this process apply?

When a NOC is received claiming additional unassessed injuries WorkCover may, in its compliance response, offer to apply this process upon receipt of the claimant’s agreement that:

• They agree to applying the process and do not require WorkCover to make a formal decision.
• The unassessed injuries are not dominant or primary injuries and 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 were not previously rejected during the statutory claim.
• They agree to provide supporting medical evidence within 30 days of the compliance date or, if that is not possible, a proposed timeframe for providing the evidence that aligns with the objectives of the process.
• Once WorkCover received the claimant’s agreement and, if applicable, the proposed timeframe, it will confirm with the claimant’s solicitor whether it agrees to apply the process.

What does this process entail?

The onus of proof remains with the claimant to demonstrate the unassessed injuries claimed in the NOC are because of the original event.

Application of this process during the pre-proceedings stage of a claimant’s common law claim will entail WorkCover considering the medical evidence provided and:

• Deciding whether to require the claimant to undergo a medical examination pursuant to section 282 the Workers’ Compensation and Rehabilitation Act 2003 (the Act) prior to proceeding to a compulsory conference or reserving its right to an examination should the claim not resolve at conference.
• Making appropriate allowances for the unassessed injuries during settlement only if the available medical evidence supports the injuries.
• Not making a formal decision about whether to accept the unassessed injuries.
• Settling the claim for all injuries from the event (both assessed and unassessed).

If no evidence is received within 30 days or the agreed timeframe and the claimant has failed to promptly provide an undertaking detailing the steps being taken to expeditiously obtain the evidence, WorkCover will exercise its discretion to either:

• Proceed to a compulsory conference on the conditions that:
  • The unsubstantiated unassessed injuries will not be taken into consideration for quantum and settlement offer purposes; and
  • All injuries (assessed and unassessed) will be included in the settlement and in the release and discharge; or
• Issue a formal written reasons for decision rejecting the unassessed injuries.

If a claim under this process proceeds to and fails to resolve at a compulsory conference, WorkCover will then either:

• On the day after the expiration of the written final offers, notify the claimant’s solicitor whether it elects to exercise its reserved right to have the claimant undergo a medical examination pursuant to section 282 of the Act and provide the panel of doctors; or
• Issue a formal written reasons for decision regarding the unassessed injuries within 30 days of the compulsory conference date.

If WorkCover elects to exercise its right to have the claimant undergo a medical examination, WorkCover will make every effort to issue a formal written reasons for decision regarding the unassessed injuries within 10 days of receipt of the medical examination report.

Review rights with the Workers’ Compensation Regulator (Regulator) attach to any formal decision made by WorkCover in relation to the claimed unassessed injuries. WorkCover may exercise its discretion not to participate in a Mediation and/or sign a request for trial date if a review decision from the Regulator is outstanding.

Additional unassessed injuries added post-service of NOC during pre-proceedings 

If the claimant requests the addition of an unassessed injury after the NOC has been served during pre-proceedings, WorkCover will exercise its discretion to decide whether to offer to apply this process. To assist with its decision WorkCover will request that the claimant promptly provide within 7 days of request a signed statutory declaration containing further information regarding the unassessed injury including:

• The unassessed injury/ies.
• Date of onset of symptoms.
• Nature of symptoms.
• Severity of symptoms in comparison to those arising from the assessed injuries.
• Name and address of medical providers consulted.
• Any relevant pre-existing conditions.
• Their agreement to provide supporting medical evidence within 30 days or if that is not possible, a proposed timeframe for providing the evidence that aligns with the objectives of the process

Once WorkCover receives the signed statutory declaration it will confirm with the claimant’s solicitor whether it agrees to apply the process and, if applicable, the proposed timeframe.

WorkCover will not apply this process for unassessed injuries added in Court pleadings.