By Michael Singh · 7 Min Read · Most injured workers know they can make a WorkCover claim. Far fewer know there's a second, separate pathway that can be worth dramatically more — a common law damages claim. The two systems work very differently, and understanding the distinction can change the outcome of your case by hundreds of thousands of dollars.
The Statutory Claim — Your Immediate Safety Net
A statutory claim under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is a no-fault entitlement. You don't need to prove your employer was negligent — only that you were injured in the course of your employment. Statutory benefits cover:
- Weekly wage replacement — 85% of your normal weekly earnings for the first 26 weeks of incapacity, stepping down to a lower rate thereafter
- Medical and rehabilitation expenses — treatment, hospital, physiotherapy, surgery, and approved rehabilitation programs
- Lump sum impairment benefit — a one-off payment if your injury results in a permanent impairment. However, to access this, your injury must reach a threshold of at least 5% whole person impairment (WPI) as assessed under the relevant AMA guides
Statutory benefits provide essential support while you recover. But they do not compensate you for the full economic and personal impact of a serious injury.
The Common Law Claim — The Full Picture
A common law claim is a negligence claim against your employer (or another party responsible for your injury). Unlike the statutory system, you must prove fault — that your employer breached their duty of care and that breach caused your injury. In return, the compensation available is far greater.
Common law damages in a WorkCover context can include:
- General damages — compensation for pain, suffering, and loss of enjoyment of life
- Past economic loss — the income you've already lost between the injury and settlement
- Future economic loss — projected loss of earnings over your remaining working life, often the largest component in serious injury cases
- Past and future care and assistance — including unpaid help provided by family members
- Past and future medical expenses — to the extent not already covered by the statutory claim
The Two-Step Test for Common Law
- Step 1 — Negligence: Your employer (or another party) must have breached their duty of care to you. This requires evidence of what went wrong and why it was the employer's fault — unsafe systems, inadequate training, faulty equipment, or failure to address a known risk.
- Step 2 — Impairment threshold: Your injury must be assessed at 5% or more whole person impairment (WPI). This is the same threshold required for the statutory lump sum, and it's assessed by an independent medical examiner. Without reaching 5% WPI, you cannot access common law damages.
If both tests are met, you can pursue a common law claim. The process typically begins after your injury has stabilised enough for an accurate impairment assessment.
The Election — The Decision You Cannot Undo
This is the most critical point in any WorkCover matter: once you elect to pursue common law damages, you give up your ongoing entitlement to statutory weekly benefits and most future medical expenses under the statutory system. The election is irrevocable.
This is not a reason to avoid common law — for serious injuries, a common law settlement is almost always worth far more than continued statutory benefits. But it means the timing and advice you receive before making the election matters enormously.
When Is Common Law Worth Pursuing?
Common law becomes particularly valuable when your injury has caused significant long-term loss of earning capacity. A worker in their 30s or 40s with a serious back injury, for example, may have decades of reduced earnings ahead — and that loss can be worth several hundred thousand dollars in a common law claim that statutory benefits would never come close to covering.
The starting point is always a free assessment. We'll look at your injury, the circumstances, your age and occupation, and whether the negligence threshold is likely to be met. If there's a common law claim available, we'll tell you what it's worth before you make any decisions.
Frequently Asked Questions
What is the difference between a statutory workers’ compensation claim and a common law claim in Queensland?
A statutory claim is a no-fault claim lodged with WorkCover Queensland. It covers weekly wage payments (85% of your normal wage for the first 26 weeks), medical treatment, and rehabilitation costs, without needing to prove negligence. A common law claim requires proving your employer or another party breached a duty of care that caused your injury. Common law claims can include damages for pain and suffering, loss of future earning capacity, and past and future economic loss — amounts that are often substantially higher than statutory benefits. Many injured workers pursue both pathways, though you cannot recover the same losses twice.
Do I need a minimum injury rating to make a common law workers’ compensation claim in Queensland?
Yes. To pursue a common law damages claim in Queensland under the Workers’ Compensation and Rehabilitation Act 2003, your degree of permanent impairment (DPI) must reach at least 5%, assessed using WorkCover’s own medical assessment process. If your injury is below 5% DPI, you are generally limited to statutory benefits only. A 5% threshold does not guarantee a large common law settlement — the actual damages depend on injury severity, your pre-injury income, your age, and the strength of the negligence case against your employer. The assessment process is important to get right, and legal representation during it is strongly advised.
Can I receive WorkCover benefits while also pursuing a common law claim?
Yes. You can receive statutory WorkCover benefits while a common law claim is being assessed and negotiated. However, you cannot recover the same losses twice. If you obtain a common law settlement, WorkCover will typically seek repayment (called a refund) of statutory benefits already paid from your common law damages. This is standard practice and does not mean you end up worse off — a well-negotiated common law settlement accounts for this repayment. A lawyer can help you structure the claim and timing to maximise the compensation you actually keep after any WorkCover refund is deducted.