Effect of a Notice of Assessment

It is vital that when you receive a Notice of Assessment from WorkCover that you seek legal advice before making a decision.

The law states that if you are assessed at less than 20% permanent impairment you cannot both accept lump sum compensation and pursue a common law claim for damages.

As discussed above, if there is a breach of duty of care on the part of your employer then you should seek legal advice about the prospects of a claim against your employer for damages.

If you accept the lump sum compensation and you are assessed at less than 20% permanent impairment, then that is the end of your claim.

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Common Law Claim

A common law claim for damages arising out of an injury at work can only be commenced after you have received a Notice of Assessment.

The common law claim is started by way of completion of a document entitled ‘Notice of Claim for Damages’.

This document sets out the circumstances regarding your claim and includes the following details –

  1. Details of all injuries sustained in the accident
  2. Details of the circumstances surrounding your accident
  3. It sets out why you hold the employer in breach of a duty of care towards you

Compliance of the Notice of Claim for Damages

The first step after serving WorkCover and the employer with the Notice of Claim for Damages is to obtain compliance.

Once compliance is obtained a timetable can be set for the progress of your claim.

From the date of compliance WorkCover have 6 months in which to provide their response in relation to their attitude to liability.

A compulsory conference must be held within 3 months of that date.

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Independent Medical Examinations

It is likely during the course of the common law claim for damages that your lawyer will require you to be seen by an appropriate medical specialist.

With respect to an injury such as a neck injury it is likely you would be seen by an Orthopaedic Surgeon.

WorkCover may require an independent medical examination and will provide a panel of three Specialists from whom you can choose to be examined.

WorkCover have a right to such an examination.

Generally speaking when going into the compulsory conference which is a requirement under the WCRA (Section 289) all the medical evidence will have been exchanged between the parties and both yourself and WorkCover will be in a position to make submissions regarding the ongoing consequences of your injury.

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