Common law payments
Common law payments or damages are a monetary payment made to compensate for the losses sustained as a consequence of a work-related injury.
Components that make up a damages payment
A court will consider common law damages in terms of various heads of damages. These include:
- pain and suffering
- past wages or economic loss including interest and loss of superannuation contributions
- future wages or economic loss including future loss of superannuation contributions
- past and future medical, hospital, pharmaceutical, rehabilitation, domestic assistance and care expenses
How damages benefits are calculated
A court will calculate the various heads of damages based on the evidence presented during the life of the common law claim. This evidence includes:
- worker’s age
- where the worker lives and works
- retirement age
- past and current work history
- medical records
- independent medical examinations and reports obtained by WorkCover Queensland and worker’s solicitor during the statutory and common law claims
- Medicare and Pharmaceutical Benefits Scheme (PBS) records
- tax and financial documents including copies of PAYG Summaries, previous tax returns and Australian Tax Office Notice of Assessments
- Centrelink records
- employer records including payroll and personnel file information
- tax invoices and receipts for expenses incurred as a consequence of the work related injury.
The court will also take into consideration previous damages amounts paid on common law cases that are similar in nature to the current common law claim, for example age, work type, location, type and extent of injury etc.
How are common law damages benefits paid?
Your solicitor will inform you:
- when the claim has settled and the amount of the settlement
- the legal fees and claim expenses incurred in managing the claim
- whether we will be paying any costs in addition to the settlement amount.
Before we can pay the settlement to your solicitors’ trust account (held on your behalf), we need to:
- obtain a signed discharge from you, and
- work out the exact amount of the settlement payment.
You'll need to sign a discharge document to confirm the settlement. By signing the discharge, you acknowledge you have no further entitlement to any monies from WorkCover Queensland or the employer for the work-related injuries. Your solicitor will explain the details of the discharge to you before they sign it.
We are required by law to deduct any amounts (also known as refunds) that are owed to the following organisations:
- Health Insurance Commission (HIC) or Medicare
- Centrelink
- Commonwealth Rehabilitation Service (CRS)
- Child Support Agency (CSA)
WorkCover must obtain these notices confirming the amounts owing—even if we are sure there'll be no refund owing. Your solicitor may also obtain these notices.
We also deduct any outstanding monies owed to WorkCover due to overpayments made to during any previous statutory claims, such as overpayment of wages or reimbursement of medical expenses.
Once we receive the notices, we deduct any amounts from the settlement total and forward refund monies direct to the relevant organisations.
We then forward the balance as a settlement payment to the solicitors’ trust account.
Legal costs
The entitlement to claim back additional costs depends on the work-related impairment (WRI) as assessed by WorkCover. The amount that can be claimed is determined by legislation. Anything above the specified amount will need to be paid by the worker to their solicitor. This amount will be included in the settlement payment to the worker’s solicitors.
The worker’s solicitors will then deduct their fees and costs, before paying the remainder of the settlement payment to the worker.