Should you accept your WorkCover lump sum offer?

If a Notice of Assessment has just landed in your letterbox or inbox, you are probably feeling two things at once: relief that something is finally happening, and pressure to make a decision you don’t fully understand. That is completely normal. This document is one of the most important you will receive in your whole claim, and the choice it asks you to make can be one you cannot undo.

This article explains, in plain English, what the Notice is, how the lump sum offer is worked out, and why one number on the page, your percentage of permanent impairment, can change everything. It is general information, not advice about your situation. But by the end you will understand the decision well enough to ask the right questions before you make it.

What a Notice of Assessment is, and when it arrives

Once your injury has stabilised and is not expected to improve much further, your impairment is formally assessed. Under section 179 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), your injury is examined and given a degree of permanent impairment, or DPI, expressed as a percentage. Who does the assessing depends on the injury: a psychiatric or psychological injury is assessed by a medical assessment tribunal, industrial deafness by an audiologist, and most other injuries by a doctor.

That percentage then drives the document you have received. Under section 185, once WorkCover has the impairment assessment, it must, within 10 business days, give you a notice of assessment in the approved form. The Notice must tell you three things:

1. whether you have a permanent impairment at all;

2. your degree of permanent impairment as a percentage; and

3. the amount of lump sum compensation you are entitled to, if any.

In short, the Notice is WorkCover’s official position on how much your injury has permanently affected you, and what, if anything, it will pay you as a one-off sum for that.

The lump sum offer: what it is, and what it is not

If you have a lump sum entitlement, WorkCover must include an offer of that lump sum in the Notice of Assessment. That requirement comes from section 187.

Here is the part that surprises many injured workers. The amount is set by a formula, not by an assessment of what your injury has actually cost you. Under section 180, the lump sum is calculated under a regulation by reference to your DPI percentage, fixed as at the day WorkCover makes the offer. The higher your percentage, the larger the figure; the lower the percentage, the smaller it is. The dollar figures in the regulation are indexed and change each 1 July, so the current amount should be checked against the regulation in force when the offer is made.

What matters for your decision is this: the lump sum is a measure of impairment, not a measure of your loss. It does not, and is not designed to, account for things like:

1. wages you have lost and will lose into the future;

2. the cost of future treatment, care, and assistance;

3. the effect of the injury on your ability to do your job, or any job, for the rest of your working life; or

4. pain, suffering, and the way the injury has changed your daily life.

Those things are the territory of a common-law damages claim, which is a separate path with very different rules. A lump sum that looks reasonable as compensation for impairment can be far less than the full value of everything an injury has taken from you. That gap is exactly why the next section matters so much.

WorkCover compensation vs common law damages in Queensland

The decision at the heart of the Notice, and why 20% changes everything

This is the most important part of the article, so read it slowly.

When you receive your Notice, the law treats you very differently depending on whether your DPI is 20% or more, or less than 20%.

If your DPI is less than 20%

Where your DPI is less than 20% (or you have no DPI), section 189 requires the Notice to tell you that you must make an irrevocable election. You must choose one of two paths:

1. accept the offer of lump sum compensation; or

2. seek damages for the injury at common law.

You cannot do both. Section 239 makes this explicit: where the Notice states a DPI of less than 20%, you are not entitled to both the lump sum and damages. You have to pick a lane.

And the choice sticks. Under section 239, once you elect to seek damages, that election cannot be changed after you give notice of it to the insurer (or, in the deferral situation described below, after you lodge a notice of claim). The same finality cuts the other way: if you accept the lump sum on a sub-20% injury rather than electing to seek damages, you give up the right to seek damages for that injury, for good.

This is why accepting a lump sum offer without advice can be a costly mistake. If your injury is one that might support a substantial common-law claim, taking the lump sum can quietly close the door on a much larger recovery, permanently, before anyone has worked out what that claim is actually worth.

If your DPI is 20% or more

Here the rules are kinder, and it is worth understanding why. Reading sections 237, 189, and 239 together, if your DPI is 20% or more you are not forced to choose. You may accept the lump sum and still pursue common-law damages for the same injury. Section 237 sets out who is entitled to seek damages, and a worker with a DPI of 20% or more for an injury from the same event falls within that group without having to give up the lump sum first.

So the 20% line is not a small technicality. It is the difference between “take the money or sue, but not both” and “take the money and keep your right to sue”. One number on your Notice decides which world you are in.

“Accept”, “reject”, or “defer”, and the decision period

Under section 189, you do not have to answer on the spot. You can respond to the offer in one of three ways, by written notice, within what the Act calls the decision period:

1. accept the offer;

2. reject the offer; or

3. defer your decision.

There is an important default built in. If you do not tell WorkCover that you accept or reject within the decision period, you are taken to have deferred your decision. Deferral is not the same as walking away; it preserves your position while you get advice and work out the right move.

The decision period is a fixed length of time set by the Act, running from when you receive the Notice. The exact length is the kind of detail that must be right for your particular Notice, so it should be confirmed against the Act or with a lawyer rather than relying on a figure you have heard somewhere. We will confirm exactly how long you have in your case. The safe approach is simple: treat the Notice as time-critical from the day it arrives, and get advice well before any deadline.

What happens to the lump sum if you later sue

A common and sensible worry is this: “If I take the lump sum now and it turns out I could have claimed damages, have I lost that money, or do I have to choose between them?”

For a 20%-or-more injury, where you can do both, the answer is governed by section 207B. Any compensation you have already been paid is a first charge on damages you later recover. In plain terms, if you go on to pursue and recover common-law damages, the WorkCover compensation you have already received has to be repaid out of those damages. You are not paid twice for the same injury, but you are not penalised for having accepted compensation along the way either: the lump sum is effectively reconciled against the larger damages recovery.

This is one more reason the right strategy depends on your numbers and your circumstances, and on getting them assessed properly before you commit.

How to approach the decision

You do not need to become an expert in the Act. You need to make sure that, before you sign or elect, you understand four things about your own Notice:

1. Your DPI percentage, and in particular whether it is at, above, or below the 20% line, because that determines whether you can ever do both.

2. What the lump sum represents. It compensates impairment, not your full financial and personal loss, so it should not be confused with the value of a common-law claim.

3. Whether you may have a common-law claim at all, and roughly what it could involve, because that is the thing the irrevocable election can extinguish for a sub-20% injury. Whether your circumstances meet the legal test for a damages claim, namely that your employer failed to take reasonable care for your safety and that this caused your injury (Civil Liability Act 2003 (Qld) ss 9, 11), is its own question and needs proper assessment.

4. Your deadline, so the decision is made on your timetable and not lost by default.

The single biggest mistake we see is an injured worker accepting an offer because it feels like “free money” or because the deadline is looming, without anyone first checking whether accepting will surrender a far more valuable right. Once made, that choice can be impossible to reverse.

Before you accept or elect, get advice on your rights

A Notice of Assessment asks you to make a decision that the law may treat as final. The lump sum on the page is real, but so is the right you could be giving up to claim it, and for an injury assessed under 20% that surrender can be permanent.

Before you accept the offer or make your election, talk to us. Fraser Lawyers can explain what your particular Notice means, where your DPI percentage leaves you, and what rights are genuinely on the table, so that whatever you decide, you decide it with your eyes open and within time. This is about understanding your rights before a deadline forecloses them, not about pressuring you into anything.

If a Notice of Assessment has arrived, the clock is already running. Contact Fraser Lawyers to understand your position before you sign or elect.

Related reading

• WorkCover claims in Queensland: the complete guide
• WorkCover vs common law: the 20% impairment decision
• How Fraser Lawyers helps with WorkCover claims
• Contact Fraser Lawyers

This article is general information only and is not legal advice. Queensland law and the figures referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.

If you would like to discuss your matter, you can book a consultation or call (07) 5554 6116.