WorkCover vs common law in Queensland: the 20% impairment decision

If you have been hurt at work, you are probably dealing with pain, time off, medical appointments, and a worried household, all at once. Then a letter arrives from the insurer asking you to make a decision, and the language is anything but plain. This article explains, in everyday terms, the two kinds of claim a Queensland worker can have, why one number (20%) matters so much, and why one particular decision cannot be undone once you make it.

We are not here to push you towards a claim. We are here to help you understand your rights before you sign anything.

The two claims: they are not the same thing

Most injured workers assume there is one “WorkCover claim”. In fact there are two separate pathways, and they answer two different questions.

1. The statutory claim: no-fault support

This is the claim almost everyone makes first. You lodge an application with the insurer (usually WorkCover Queensland), and if it is accepted you receive support regardless of whose fault the injury was. You do not have to prove your employer did anything wrong.

A statutory claim can cover things like weekly payments while you cannot work, the cost of medical treatment and rehabilitation, and, where your injury leaves you permanently impaired, a one-off lump sum. Weekly payments are generally 85% of your normal weekly earnings for the first 26 weeks, stepping down to a lower percentage after that, and they stop at the earliest of your incapacity ending, 5 years of payments, or your compensation reaching the statutory maximum (Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 144A, 150, 151). The permanent-impairment lump sum is worked out under a regulation by reference to your impairment percentage, and the dollar figures are indexed and change each 1 July.

There is a strict clock on starting this claim. A statutory compensation application is valid only if you lodge it within six months after your entitlement arises, although the insurer can waive that time limit in defined situations such as a genuine mistake, your absence, or other reasonable cause, with a medical-circumstances waiver available through a tribunal (s 131).

2. The common-law claim: fault-based damages

This is a different animal. A common-law claim is a claim for damages against your employer (and, through the employer, the insurer), and you can only succeed if you can show the employer was legally at fault: that it breached its duty to take reasonable care for your safety, for example by failing to provide a safe system of work, safe equipment, or proper training, and that the breach caused your injury (Civil Liability Act 2003 (Qld) ss 9, 11).

Because it is fault-based, a common-law claim is not automatic and it is not quick. But it is also not capped in the same way as the statutory lump sum: damages are assessed to compensate you for your actual losses. These can include past and future loss of income (capped at the present value of three times Queensland ordinary time earnings, or QOTE, for each week of the loss: Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 306I), future treatment and care, and general damages for pain and suffering, which are calculated under the prescribed WorkCover scale (s 306P).

Here is the key point most people miss: whether you can even bring a common-law claim, and whether you have to give up your lump sum to do it, depends almost entirely on one number.

The notice of assessment and your DPI

Once your injury has stabilised, it may be assessed to work out your degree of permanent impairment, or DPI, expressed as a percentage (s 179). Think of the DPI as a medical measure of how much lasting impairment the injury has left you with, on a standardised scale.

After that assessment, the insurer must send you a formal document called a notice of assessment. It must be issued within 10 business days of the insurer receiving the impairment assessment, and it must tell you whether you have a permanent impairment, what your DPI percentage is, and the lump sum amount that goes with it (s 185). If you are entitled to a lump sum, the insurer must include an actual offer of that lump sum in the notice (s 187).

When that notice lands in your letterbox, slow down. It is not just paperwork. For many workers it is the most important document in the whole process, because of what your DPI figure triggers next.

The 20% threshold: the line that changes everything

Queensland law draws a bright line at 20% DPI. Which side of that line you fall on decides whether you face a choice at all.

If your DPI is 20% or more

You are in the stronger position. A worker assessed at 20% or more is not forced to choose. You may accept the statutory lump sum and still pursue a common-law damages claim for the same injury. You keep one and you can still go after the other.

This is the practical effect of reading several sections together: the people allowed to seek damages include a worker who has a DPI of 20% or more for the injury (s 237), and the “you can’t have both” restriction and the irrevocable election are aimed specifically at workers assessed at less than 20% (s 189, s 239). So at 20% or above, the either/or trap does not apply to you.

If your DPI is less than 20% (or there is no DPI)

This is where you must be most careful. If your notice of assessment says your DPI is less than 20% and you have a lump sum entitlement, the notice must tell you that you have to make an irrevocable election: you either accept the offer of the lump sum, or you seek damages for the injury. You cannot do both (s 189).

The law is blunt about it. Where the DPI is under 20%, you are not entitled to both lump sum compensation and damages for the injury (s 239). You may seek damages only if you have received your notice of assessment, or you have elected under the legislation to seek damages (s 237). One door or the other: not both.

Why “irrevocable” is the word that should make you slow down

“Irrevocable” means it cannot be undone. This is not a cooling-off arrangement and it is not a decision you can revisit if things turn out worse than expected.

Once a worker under 20% elects to seek damages, that election cannot be changed after notice of it is given to the insurer (or, where the election is treated as made automatically under the legislation, once the worker lodges a notice of claim) (s 239). Equally, if you take the lump sum on a sub-20% assessment, you are generally closing the door on a common-law claim for that injury (s 189, s 239).

Picture the danger. A modest lump sum is sitting in front of you. The household is under financial pressure. Accepting feels like relief. But if your injury is one that may worsen, or that quietly ends a career, or that will need surgery and time off years from now, the lump sum may fall a long way short of what a common-law claim could have recognised, and once you have taken it, that pathway can be gone. The reverse risk is just as real: walking away from a certain lump sum to chase damages you cannot ultimately prove, because a common-law claim still requires you to establish your employer’s fault (Civil Liability Act 2003 (Qld) ss 9, 11).

This is precisely the moment to get advice, before you tick the box, not after.

If you pursue damages: the common-law process and the clock

A common-law claim is a formal legal process with its own steps and its own deadlines. In broad terms:

1. Notice of claim. Before you can start a court proceeding for damages, you must give the insurer a notice of claim for damages in the approved form (s 275).
2. Compulsory conference. Before a proceeding can start, the parties must hold a compulsory conference and genuinely try to settle the claim (s 289). Many claims resolve at this stage without ever reaching a courtroom.
3. Time limits. A damages proceeding must be brought within the general limitation period under the Limitation of Actions Act 1974 (Qld), which is three years for personal injury (Limitation of Actions Act 1974 (Qld) s 11). Starting a proceeding late is only possible if a complying notice of claim was given before that period ended, and the proceeding must be brought within 60 days after the compulsory conference (s 302).

Three years can feel like a long time when you are in the thick of recovery. It is not. Evidence fades, witnesses move on, and the statutory steps above take time to work through. The safest assumption is that the clock is already running.

The “gross-to-net” reality: the WorkCover refund

There is one more thing that surprises many workers, and it is better to know it now than at settlement.

If you have already received statutory compensation (weekly payments, medical expenses, or a lump sum) and you later recover common-law damages for the same injury, the compensation you were paid is a first charge on those damages. In plain terms, the amount WorkCover paid you has to be repaid to the insurer out of your damages (s 207B).

So the figure you might see described as a settlement is not necessarily what reaches your bank account. A common-law settlement is reduced by the WorkCover refund. This does not make a common-law claim a bad idea, but it does mean the headline number and the net number in your pocket are two different things, and any sensible decision is made on the net figure, after both the WorkCover refund (s 207B) and your own legal costs.

How to think about the decision

You do not have to become an expert in workers’ compensation law. You do need to make one informed choice at the right moment. A useful way to frame it:

1. What does my notice of assessment actually say? Find the DPI percentage. That single number tells you whether you face a choice at all (s 237, s 189, s 239).
2. Am I above or below 20%? At 20% or more, taking the lump sum does not cost you the common-law claim. Below 20%, it is one or the other, permanently (s 189, s 239).
3. What is my injury likely to do over time? A decision that looks fine today is made for a future you cannot fully see. Future surgery, lost career earnings and ongoing care are exactly the things a one-off lump sum may not capture (the common-law heads of damage in s 306I and s 306P).
4. What is the net, not the gross? Remember the WorkCover refund comes off any damages (s 207B).
5. What is the clock? The limitation period and the procedural steps mean delay is not free (s 275, s 289, s 302; Limitation of Actions Act 1974 (Qld) s 11).

The honest answer to “should I take the lump sum or sue?” is that it depends entirely on your DPI, your injury, your work, and your evidence. There is no one right answer for everyone, which is exactly why a quick decision on a sub-20% notice is so risky.

Before you sign anything, understand your rights

The single most important thing we can tell an injured Queensland worker is this: the notice of assessment is a decision point, not just a form. If your DPI is under 20%, the choice you make on that notice is permanent (s 189, s 239). If your DPI is 20% or more, you may have more options than you realise (s 237). Either way, the figures, the deadlines and the long-term consequences deserve careful thought.

At Fraser Lawyers, we can explain what your notice of assessment means, what your DPI figure does to your options, and what each pathway would realistically involve for your situation, so that you can make an informed decision rather than a rushed one. We are not asking you to “make a claim”. We are inviting you to understand your rights and options before you make a choice you cannot reverse.

If you have received a notice of assessment, or you expect one soon, contact Fraser Lawyers to talk it through before you elect.

Related reading

• WorkCover claims in Queensland: the complete guide
• Should you accept your WorkCover lump sum offer?
• 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.