Let’s look at some common personal injury claims and why they might be denied – and what you can do next!
What is a personal injury?
By law, a personal injury claim involves injury to someone’s body, mind or emotions. It also includes fatal injuries. However, it doesn’t include injury to property, like a car.
A personal injury usually occurs due to someone’s negligence – it’s someone’s fault. Therefore the injured party can claim compensation (damages) from the negligent party, which may be an individual or a business.
Common types of injuries include:
physical: head injuries, back, burns, lost limbs, whiplash, broken bones, cuts and grazes, food poisoning, asbestos poisoning, diseases like cancer
psychological: severe stress, anxiety, depression, PTSD.
It might also include the worsening of pre-existing injuries.
What are damages?
Every personal injury is different, so the loss will be different. Damages – or compensation – is a sum of money awarded to cover various expenses and losses suffered by the injured party, including:
- past and future medical expenses – treatment, hospital fees, medication
- lost past and future earnings – including promotion opportunities
- the cost of domestic care and household assistance – whether it’s provided by family, a friend or a professional
- home modification expenses – such as for ramps, handrails and other requirements
- pain, suffering and loss of enjoyment of life.
Compensation ideally returns the injured party to the position they were in before they were injured. Therefore, the amount of compensation will depend on the individual situation and the extent of harm or loss.
Making the correct personal injury claim
The process for making a personal injury claim depends on the type of accident or injury. Each has its own time frames and requirements.
These missed details are often the reason a personal injury claim is denied.
We recommend seeking legal assistance as early in the process as possible to get it right and prevent mistakes that could delay your much-needed compensation or without the need for appealing a denied personal injury claim.
Motor vehicle accidents
The compulsory third-party insurance (CTP) scheme allows you to sue the at-fault driver’s insurer rather than the driver – or Nominal Defendant if you can’t identify the driver or they’re uninsured. (Don’t confuse CTP insurance with property damage insurance – CTP insurance is for personal injury only.)
Councils and businesses – like supermarkets, retail outlets and event organisers – usually have public liability insurance to cover them for injury or property damage to the public on their premises.
If you’re injured in a public place, you can make a common law claim against the at-fault party’s insurer.
Workers compensation claims are a little different. First, you make a WorkCover claim, regardless of who’s at fault. If it’s accepted, Workcover helps you with medical expenses and wages until you’ve recovered.
However, WorkCover doesn’t cover out-of-pocket expenses, pain and suffering, or lost income and superannuation. For that, you need to lodge a common law claim if your employer was at fault and you haven’t accepted a lump sum offer from WorkCover. You would then sue your employer for compensation through the court system.
Settling claims out of court
Most personal injury claims settle out of court because the law requires both parties (or their legal representatives) to attend informal negotiations to try and agree on a settlement – a compulsory conference. Most cases are settled here and don’t go to court.
But if you can’t agree on a settlement, you can start court proceedings. In this case, the judge decides the extent of fault on both sides and how much you’re entitled to if anything. This process can be expensive, so it’s best to try and negotiate a settlement with assistance from a legal professional.
Why your personal injury claim could be denied
Insurance companies may decline personal injury claims for many reasons. Some reasons are valid, but some insurers look for ways to undervalue or reject claims to save money.
They might find problems with the at-fault party’s insurance policy, such as:
- It doesn’t cover the type of accident that caused your injury.
- It was expired at the time.
- It doesn’t cover the person or business for some reason.
In this case, you would need to sue the other party directly rather than go through their insurer.
Other reasons that your claim might be denied include:
- You can’t prove that your injuries, loss or damage were a direct result of the accident or other party’s negligence.
- Your injuries are very minor with no ongoing impact or loss.
- You can’t prove the accident occurred where it did.
- Your injury was the result of a pre-existing condition or prior accident.
- There was a time lag between the accident and medical treatment.
- Time limits have expired.
- For a workers compensation claim, it didn’t happen in the course of your employment or you’re not considered a worker.
Your options if your claim is denied
At Main Lawyers, we’ve helped many clients get compensation for personal injury after their claim was initially denied. There are several avenues we can explore.
Motor vehicle accidents
If the at-fault driver’s CTP insurer rejects your claim (or there’s no insurer), one option is mediation to try and agree on fault and a settlement amount.
If the other party ignores your request, their insurer denies liability or mediation fails, you still have the option of taking legal action through the courts for car accident injuries.
If WorkCover rejects your workers compensation claim, you can ask the insurer to provide a ‘reasons for decision’ document within 20 business days if they haven’t already.
If you disagree with their decision and believe you’re eligible for compensation, you can request a review of the decision. (Note: Some decisions are not reviewable and must be appealed to the courts, so it’s best to get legal assistance with this.)
There are strict time limits for this option. You have three months from the date you received the decision to lodge an appeal with the independent Workers’ Compensation Regulator.
They review the decision and either confirm, vary or set aside the insurer’s decision. This could take about 25 business days from when they receive your request.
If you’re not satisfied with the review outcome, you can then appeal to the Queensland Industrial Relations Commission within 20 days.
If your common law claim against the insurer of the at-fault person or business is rejected, you can attend a compulsory conference to try to agree on fault and a settlement. But if there’s no agreement, each party exchanges their mandatory final offers and you can start court proceedings. You need to start this process within 60 days of the compulsory conference.
You will then attend a mediation conference after court pleadings to try to settle the matter. But if this fails, the matter progresses to a final hearing before a court, which will make a final decision about your claim and any compensation you’re owed.
Why use a lawyer to appeal your claim?
As you can see, there are many paths to seeking compensation if your personal injury claim is denied, but you can’t do it alone. This area of law is quite complex and there are strict time limits for appealing a denied personal injury claim.
The earlier you can get an experienced personal injury lawyer on your side, the better to:
- learn all your options
- ensure paperwork is submitted correctly and on time – especially if you’re still in the hospital or unwell
- negotiate with insurers on your behalf to get you what you’re entitled to
- help you prepare for court proceedings if necessary.
For these reasons and more, it’s highly beneficial to engage a personal injury lawyer.
How Main Lawyers can help
At Main Lawyers, we have many years of experience and success with these types of cases. We provide you with all the facts and will discuss your situation and answer important questions like:
- How likely is my case to be successful?
- How much compensation can I get?
- How much will each stage of the process cost?
- How long is it likely to take?
We may not be able to provide precise answers in the early stage of your claim, but we can certainly give you likely outcomes and keep you informed the entire way.