Should you take the WorkCover lump sum or common law? (2026)

The rules for choosing a WorkCover lump sum or common law damages depend on your DPI. If it is under 20%, accepting the lump sum ends any right to damages, and the election is final. At 20% or more, you can accept the lump sum and still claim damages. This page explains the rules, not what you should do.

Written and fact-checked by Marshall Fenech, Editor. Legal rules checked against official Queensland sources on 21 October 2026. How we check facts.

Why the WorkCover lump sum vs common law choice matters

When a work injury leaves a permanent impairment, the insurer sends a notice of assessment with a lump sum offer. For many workers, that offer forces a choice between two paths. Our WorkCover claims guide explains both paths. In addition, our guide to the statutory claim vs common law claim compares them in detail.

The choice can be permanent. Under WCRA s 237(3), if you must elect and you accept the lump sum, you can’t seek damages. WorkCover Queensland also warns about the reverse. If your common law claim fails, “you cannot go back and take the lump sum later”. So the WorkCover lump sum and a common law claim can rule each other out.

The WorkCover lump sum vs common law rules by DPI

Your degree of permanent impairment (DPI) sets the rules for the WorkCover lump sum and any common law claim. The table summarises them. Our WorkCover lump sum guide explains how the insurer assesses DPI and calculates the offer.

Lump sum options by DPI. Source: WCRA ss 188, 189, 239; WorkCover Queensland. DPIs from separate injuries can't be added together to reach 20%. Checked 21 October 2026.
DPI in your notice of assessment	Your options	Section
20% or more	Accept or defer the lump sum. You can accept it and still seek common law damages.	s 188
Less than 20%	Accept, reject or defer the lump sum. You can’t have both the lump sum and damages, and the election is irrevocable.	ss 189, 239
No DPI	The same election rules as for a DPI under 20% apply.	s 189(1)(b)

What accepting, rejecting and deferring mean

If your DPI is under 20%, you have three options under s 189. WorkCover explains each one:

Accept: the insurer pays the lump sum, your statutory claim ends, and “you cannot make a common law claim”.
Reject: you may make a common law claim, but you can’t go back to the lump sum later.
Defer: you keep the option of taking the lump sum later. However, WorkCover says “you lose this option if you start a common law claim”.

Deadlines in the WorkCover lump sum vs common law decision

Several deadlines run at once, so it helps to list them. First, the decision period is 20 business days after the notice of assessment (s 186(2)). If you don’t respond in that time, s 189(4) treats the decision as deferred.

Second, statutory compensation stops. Under s 190, further compensation for the injury stops once you respond or 20 business days pass, whichever comes first. This doesn’t affect the lump sum itself. Third, you may never give notice of your election. In that case, s 189(6)–(7) treats lodging a notice of claim for damages as rejecting the lump sum.

Finally, the common law time limit keeps running. Under s 302 and the Limitation of Actions Act 1974 s 11, the general period is 3 years. WorkCover says you usually need to lodge the notice of claim within 3 years of the injury.

Factors in a WorkCover lump sum vs common law decision

No single factor decides this, and the right answer differs from person to person. This page doesn’t recommend accepting or rejecting an offer. Instead, it sets out the matters the law makes relevant:

Certainty: the WorkCover lump sum is a fixed amount, while common law damages depend on settlement or a court decision.
Proof of negligence: a common law claim succeeds only if you prove your employer’s negligence caused the injury and losses.
Contributory negligence: damages may be reduced if you contributed to your injury (WCRA s 305H; WorkCover).
Refunds: statutory compensation already paid is a first charge on damages (s 207B).
Costs risk: for a DPI under 20%, if the court awards no more than the insurer’s final offer, you may have to pay the insurer’s costs from that offer (s 316).
Legal costs and time: a common law claim involves a pre-court process, a compulsory conference and possibly court. The 50/50 rule in the Legal Profession Act s 347 caps speculative legal costs.

If your condition gets worse after you accept

There is a narrow safety valve. Under s 266, some workers who accepted the lump sum may ask the insurer to consider fresh medical evidence. This applies to a DPI under 20%, and you must ask within the period in s 302(1).

The bar is high, though. The evidence must show a further material deterioration of the same injury, adding at least 10% DPI. When added to the earlier DPI, the total must reach 20% or more. In addition, there must have been no reason to expect the deterioration when the DPI was first decided.

Check the DPI and get advice before you choose a lump sum or common law

Before choosing, check the assessment itself. Under s 186, you can dispute your DPI within 20 business days of the notice. You can ask for a new assessment or a medical assessment tribunal decision.

The law also expects you to see the key rules. Under s 189(2), the insurer must also send copies of the key sections with the notice. These are ss 10, 237(3), 239, 240 and 316. Because the election can be final, you may want advice from a Queensland lawyer before you decide. You can learn how we compare firms on our methodology page.

Frequently asked questions

That depends on your circumstances, and this page doesn’t recommend either option. If your DPI is under 20%, accepting the lump sum ends any right to seek damages (WCRA ss 237, 239). That election is final. If it is 20% or more, you can accept the lump sum and still claim damages. A Queensland lawyer can advise on your facts.

The law treats your decision as deferred if you don’t respond within the 20-business-day decision period (ss 188, 189). Separately, further statutory compensation stops once 20 business days pass after the offer (s 190). WorkCover Queensland says you can still take a deferred lump sum later. However, you lose that option if you start a common law claim.

Not if you rejected the offer or started a common law claim. WorkCover Queensland is clear on this. If your common law claim fails, “you cannot go back and take the lump sum later”. Under WCRA s 189(6)–(7), lodging a notice of claim without an election counts as rejecting the lump sum. This applies to a DPI under 20%.

Not if you add them together. WorkCover Queensland says you can’t reach 20% by adding two or more DPIs together. Under WCRA s 179(5), the insurer assesses physical injuries from one event together. However, a psychological injury from the same event gets a separate DPI. So you can’t combine a physical and a psychological DPI to reach 20%.

Only in narrow cases, and only for a DPI under 20%. Under WCRA s 266, you can ask the insurer to consider fresh medical evidence. It must show a further material deterioration adding at least 10% DPI, bringing the total to 20% or more. You must make the request within the common law limitation period.

Lump sum or common law: a quiet Toowoomba street in Queensland

Key takeaways

Under 20% DPI, you can’t have both the WorkCover lump sum and common law damages, and you can’t change the election (WCRA s 239).
At 20% DPI or more, you can accept the WorkCover lump sum and still seek common law damages (s 188).
You generally have 20 business days to respond to the offer. If you don’t, the law treats the decision as deferred.
WorkCover says a deferred offer is lost if you start a common law claim, and lodging a notice of claim counts as rejecting it (s 189).
A common law claim must still meet the 3-year limitation rules and the costs rules for final offers.

Related guides

Sources

This page is general information, not legal advice. How we rank lawyers · Queensland law firm directory.