Once a Queensland workers compensation claim is assessed as having a degree of permanent impairment, the injured worker faces a choice between accepting a lump sum and pursuing a common law claim, and the two paths cannot both be taken in full.
Once a Queensland workers compensation claim reaches a notice of assessment, the injured worker is offered a lump sum for permanent impairment and, depending on the assessed percentage, may face a choice about whether to also pursue a common law claim against the employer. The two paths interact rather than simply adding together, and the choice made at this point can close off options later.
What the notice of assessment sets out
Once an accepted injury is judged to be stable and stationary, meaning it is unlikely to improve further with treatment, the workers compensation insurer, or WC insurer, arranges a medical assessment of the degree of permanent impairment, sometimes called DPI. That assessment, carried out under the Workers Compensation and Rehabilitation Act 2003, converts the lasting effects of the injury into a percentage figure. The notice of assessment records that percentage, sets out the lump sum on offer for it, and explains what accepting or rejecting the offer means for any further claim.
Why the degree of permanent impairment matters
The percentage in the notice of assessment does more than set the size of the lump sum. Below a threshold set by the legislation, a worker who wants to pursue a common law claim for damages must first reject the statutory lump sum offer, since accepting it closes off that further claim. At or above that threshold, a worker can accept the lump sum and still bring a common law claim afterwards. Because the practical effect of the same document differs so much depending on which side of the threshold a worker falls on, reading the percentage correctly, and querying it if the assessment seems low against the medical evidence, matters before any decision is made.
Statutory lump sum compared with a common law claim
| Statutory lump sum | Common law claim | |
|---|---|---|
| Basis | No fault, paid because of the assessed impairment | Fault based, requires showing the employer was negligent |
| What it compensates | The permanent impairment itself, on a fixed scale | Broader losses, including past and future economic loss |
| Time to resolve | Generally quicker, since fault is not in issue | Generally slower, since liability and quantum are both contested |
| Effect of accepting the lump sum | May end the right to a common law claim, depending on the assessed percentage | Not applicable |
The election itself
Where a worker is entitled to choose, the Act requires a formal election, in writing, between accepting the statutory lump sum or preserving the right to sue. This is not a step to take lightly or without advice, since it is generally treated as final once made. A worker considering the election should understand the likely value of a common law claim, including the strength of the negligence case against the employer, before deciding whether to give up the certainty of the lump sum for the possibility of a larger but uncertain result.
What a common law claim requires
A common law claim requires the worker to show that the employer breached its duty of care and that the breach caused or contributed to the injury. Common examples include inadequate training, unsafe systems of work, or a failure to provide proper equipment. Unlike the statutory claim, which does not ask why the injury happened, a common law claim can fail entirely if fault cannot be established, even where the impairment itself is significant. This is why the decision to pursue it is not only about the percentage on the notice of assessment but about the underlying facts of how the injury occurred.
Time limits and why timing matters
Strict timeframes set by the legislation apply both to responding to a notice of assessment and to starting a common law claim, and those timeframes run independently of each other. A worker who delays too long risks losing the right to elect at all, regardless of how strong the underlying claim might be. Our note on time limits for personal injury claims in Australia explains how these clocks generally work.
How impairment assessment connects to other claims
The same injury can sometimes give rise to more than one type of claim, for example a workers compensation claim alongside a compulsory third party claim if the injury happened on a work related journey. Our article on journey claims in Queensland explains how those claims can run together. The concept of assessed impairment also appears outside the workers compensation scheme, including in superannuation and total and permanent disability contexts, which our article on whole person impairment explains in more general terms.
What this means for you
A notice of assessment in a Queensland workers compensation claim is not simply a payment offer. Depending on the assessed percentage, it can require a formal and largely irreversible election between a statutory lump sum and a common law claim, and strict time limits apply to each step. Understanding what the percentage means, and what the underlying facts of the injury might support in a common law claim, are both relevant before any decision is made.