6.3.4 Serious injury
The first response to a common law application is the determination of serious injury.
Steps
The steps in the SI determination phase are:
- WorkSafe receives and allocates the common law application to a Panel Solicitor
- Panel solicitor WorkSafe’s External Investigation Management Unit reviews the common law application and makes recommendations on whether the worker has a serious injury or not
- WorkSafe determines whether the injury is serious or not
- the panel solicitor prepares and sends a response to the worker’s solicitor including WorkSafe’s SI determination
- if determined that the worker does not have a serious injury the worker can challenge the determination by issuing an Originating Motion.
- a court determines whether a worker has a serious injury or not, if WorkSafe maintains its view that the worker does not have a serious injury.
Worker undergoes assessment of impairment
Before making a common law application a worker may make an impairment benefits claim. If such a claim is made, it must be finalised before making a common law application. However it is not compulsory for a worker to make an IB Impairment Benefits claim before making a common law application.
When a worker lodges an impairment benefits claim, they must undergo an assessment of impairment.
See: Impairment
Worker informs Agent of acceptance
Before pursuing a common law application, the worker must inform the Agent that they:
- accept the impairment assessment and if yes whether the entitlement to compensation is accepted or
- have been advised of the Medical Panel Under the legislation, unless inconsistent with the context or subject-matter — Medical Panel means a Medical Panel constituted under Division 2 of Part 12’s opinion about the impairment assessment and accept the entitlement to compensation.
Impairment benefits claim
A worker is not required to make an impairment benefits claim before making a claim for common law damages. However, the worker may only make an application after a period of at least 18 months has elapsed since the event or circumstance giving rise to the injury occurred (unless it is an action by a terminally ill worker).