Who may seek damages

An injured worker who suffers other than a "serious injury" is not entitled to both lump sum compensation for the injury and damages. An injured worker who suffers a serious injury may accept lump sum compensation and make a common law claim for damages.

Once an offer of a lump sum for permanent impairment is made, the injured worker has 20 business days to notify WorkCover of their decision to accept, reject or defer the offer. An injured worker's entitlement to compensation ceases after 20 business days or upon acceptance, rejection or deferral and weekly benefits will cease (section 135).

If the injured worker has not received an offer of lump sum compensation, they may still seek damages if they obtain a damages certificate under section 182D. The injured worker must complete an Application for Damages Certificate form and lodge it with WorkCover. WorkCover will then decide if the injured worker is a worker who has sustained an injury in accordance with the legislation and, if so, arrange for an assessment of permanent impairment.

If there is an urgent need to commence legal proceedings, WorkCover may issue a conditional damages certificate to enable proceedings to start (section 182D).