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WorkCover and work place injuries

Introduction

If you are a worker and you sustain an injury at work, you may be entitled to make a worker's compensation claim.

Generally, WorkCover Queensland is the State's insurer for workplace injuries, unless you are employed by a large company who self-insures. The process is the same for both, however, and regulated by the same body, Q-Comp. All claims must go through WorkCover Queensland or your company’s insurer first. For a list of self-insured companies and their contact details click here.

For the purposes of this section, the insurer will be referred to as WorkCover. Common law claims for compensation can proceed when WorkCover assessments are not accepted by you. Legal advice is available in order to help you evaluate any offer from the insurer.

A 'worker' (covered under the Workers' Compensation and Rehabilitation Act 2003) is a person employed under a contract, or at piecework rates, for labour only or substantially for labour only. To find out if you are eligible for compensation, click here.

In Queensland, if you are involved in a work accident and you are injured, you may be eligible for compensation for the time you have off work and any treatment or other rehabilitation costs resulting from the injury you sustained in the work accident. You may also be eligible for common law damages, in which case you may be compensated under different, broader heads of damages, including future economic loss and future medical treatment. To find out if you are eligible for Common Law damages for a work accident, click here.

Accident Compensation Advice services provide a genuine no win-no fee service. Accident Compensation Advice retain only the most experiences personal injuries specialist solicitors to deal with your claim. To find out more, click on one of the express links, call our hotline on 1800 700 125, or click here to submit a free, no obligation enquiry.

The law imposes strict time limits. In relation to an accident in Queensland you only have three years from the date of an accident within which to issue legal proceedings. Should you not issue proceedings within this time then you could lose your rights forever and be prevented from claiming. Please contact us by clicking here to preserve your rights.

What should I do if I have been injured at work?

If you have been injured at work, you should take the following steps to apply for compensation.

  1. Report the injury to your employer immediately. WARNING: You have only 6 months to lodge an application for compensation with WorkCover.
  2. If you require medical attention or are unable to continue working, visit you doctor or your employer's doctor (if applicable) for an assessment.
  3. If the doctor agrees your injury is work-related, s/he should give you a Workers' Compensation Medical Certificate. You should give the original copy of the medical certificate to WorkCover (see below) and a copy to your employer.
  4. Fill in an Application for Compensation. This form is available from your employer or nearest WorkCover office.
  5. Obtain and complete an Employment Declaration if you are claiming for lost wages. This form is available from WorkCover offices, your employer, the Australian Taxation Office or your local post office.
  6. Attach your Workers' Compensation Medical Certificate to the Application for Compensation and attach an Employment Declaration if required. WorkCover needs these forms and your Employer's Report to consider your application.

You are obliged to complete all the necessary forms when you apply for compensation.

You must provide accurate and true information to WorkCover at all times. If you are found guilty of fraud or attempted fraud you may:

  1. Lose your entitlement to statutory workers' compensation
  2. Lose your right to claim damages from your employer.

It is important that you cooperate with all persons involved (e.g. WorkCover, your employer, your doctor, your solicitor) and minimise the effects of your injury through appropriate medical treatment and rehabilitation.

So long as you lodge all the required forms and comply with the requests made by WorkCover, WorkCover will process your application.

Some applications are more complicated than others and may take longer to process. To reach a decision, WorkCover may talk to you, witnesses to your injury, your doctor and your employer. As soon as a decision is made, WorkCover will inform you and your employer in writing.

If your application for compensation is of a complex medical nature, WorkCover may refer you to a medical assessment tribunal to assess the matter. Medical assessment tribunals provide a way - independent of WorkCover - of reviewing and assessing injuries and impairment sustained by workers. There are seven medical assessment tribunals, each made up of three doctors who are specialists in the area of your injury.

If you have reached this stage and would like legal advice CLICK HERE to enter your details for specific advice on your case.

In order to protect your rights you must formally apply for compensation with WorkCover within six months of the date of the accident. If your application is rejected, you should lodge an appeal within 28 days of WorkCover's decision rejecting the claim.

After my claim has been accepted and processed

Once WorkCover have accepted and processed your claim, you will be provided with a notice of assessment outlining whether or not WorkCover believe that you have sustained a permanent impairment as a result of your work-related accident.

Should I accept the offer from WorkCover?

If WorkCover believes you have sustained a permanent impairment as a result of your work related accident, WorkCover will offer you lump sum compensation. This is a one-off statutory payment. WorkCover may offer you lump sum compensation if the injury you sustained at work results in permanent impairment. When you are paid lump sum compensation, your entitlement to statutory compensation ceases for that injury (i.e. your weekly benefits, medical and rehabilitation costs).

This offer is calculated in accordance with the percentage impairment provided by a doctor to WorkCover, and the relevant schedule and regulations in the Workers' Compensation and Rehabilitation Act 2003.

If an injured worker has prospects of proving negligence on the part of their employer they can claim for common law damages. If you would like to find out if you can claim for common law damages, click here.

If you are assessed as having a work-related impairment of less than 20% you must choose between:

  • Accepting the statutory lump sum compensation offered by WorkCover. or:
  • Claiming damages at Common Law from your employer.

Your choice - to accept or reject WorkCover's offer of lump sum compensation is called the 'irrevocable election'.

If you are assessed as having a work-related impairment of 20% of more, you have the right to:

  • Accept the statutory lump sum compensation offered by WorkCover and
  • Claim damages at Common Law from your employer.

Note: If you sustain work-related impairment from a psychiatric or psychological injury (less than 20%) and another injury (less than 20%) you cannot combine these to reach 20% or more.

If WorkCover does not believe that you have suffered a permanent, i.e. have assessed you at 0% and have offered you ‘Nil’ read on below, as you may still be eligible for common law damages. Alternatively, click here to make and obligation-free enquiry.

You should seek legal advice before responding to a Notice of Assessment due to the impact it can have on your legal rights, click here.

WorkCover’s offer v. Common Law Damages

WorkCover will terminate your benefits in due course and may make an offer of a statutory lump sum payment. This statutory lump sum payment is determined by the percentage of disability that doctors appointed by WorkCover determine. The percentage disability medically assessed is of the whole body and will determine the amount of the lump sum benefit.

Should you accept this statutory benefit then you will be precluded from proceeding with a common law claim for damages unless your assessment is equal to or greater than 20% WRI (Work Related Impairment). It is important to note sometimes while the permanent impairment percentage is greater than 20%, the WRI can be less than 20% and accepting the lump sum in these circumstances can preclude you from a common law claim.

Therefore, when WorkCover make the offer of the lump sum benefit you must elect to either accept the lump sum benefit, or reject it so that you can proceed with your Common Law claim for damages or defer it.

It is often our experience that the Common Law provides damages in excess of the lump sum benefit. However, negligence must be established in order to proceed at Common Law. If negligence can be established, a court* will award compensation under the following heads of damages:

  • pain, suffering and loss of amenities of life;
  • past economic loss;
  • future economic loss and loss of earning capacity (e.g. if you are no longer able to work, will have to retire earlier, are still working but are earning less);
  • future medical, rehabilitation, pharmaceutical and traveling expenses.

The Lump Sum offer from WorkCover DOES NOT take into account these factors and is based purely on a statutory formula.

*It is very rare that these matters proceed to court. In excess of 96% of matters settle at a compulsory conference between the parties held in accordance with the Workers Compensation and Rehabilitation Act 2003.

The Common Law claim can also award Standard Costs and Outlays in certain circumstances. Standard Costs and Outlays are the basic costs of your Common Law claim (i.e. some of your legal costs may be recoverable).

Please note that a worker cannot proceed with a Common Law claim until he or she has elected to reject the offer of settlement from WorkCover. IF YOU HAVE RECEIVED A LUMP SUM COMPENSATION OFFER from WorkCover, contact us immediately before taking any further steps so that we may advise you further of your rights click here.

We estimate that your Common Law claim should take, in normal circumstances, a period of approximately 12 months to conclude once a Notice of Assessment has been issued and a Notice of Claim lodged. Most matters do not proceed to a court hearing and are settled out of court. Please note, that actions for damages arising out of serious or complicated circumstances, may take longer on the basis that your injuries must stabilise before your matter can be settled.

Common Law Compensation Procedure

If there has been negligence on behalf of your employer, or a person other than yourself was the cause of your work-related accident, you may be entitled to common law damages. If you chose to proceed with common law damages your solicitor will discuss with you the following points:

  • Assessment of permanent impairment
  • Lodging a Notice of Claim
  • Your legal costs and expenses
  • Pre-proceedings process
  • Court process if a claim is not settled in the pre-proceedings process
  • Impact of 'contributory negligence' and 'mitigation of loss' on damages awards

If you have not obtained legal advice, click here to submit your enquiry to receive obligation-free Workers compensation legal advice.

In the event that you are entitled to common law damages, you may be able to claim for any loss or damage arising from the work accident under the following heads of damages:

  • Loss of past income (including interest and superannuation entitlements);
  • Loss of future income;
  • Medical expenses for the past and for the future;
  • Assistance for the future;
  • Pain, suffering and loss of amenities of life;
  • Pharmaceuticals;
  • Contribution to your costs and outlays (basic costs).

Workplace Injury Time Limits

Generally a three year limitation period applies. However if a Notice of Claim form is lodged and deemed ‘compliant’ within the three year period the limitation period is extended until 60 days after a compulsory conference is held. If a Notice of Claim is not lodged and compliant within the three year period your rights may be lost forever. Don't delay, seek appropriate advice today and preserve your rights.

Summary of the Workers Compensation procedure in Queensland

In order to be eligible for compensation you must adhere to the following steps:

  1. Report the injury to your employer immediately
  2. Seek medical attention
  3. If your doctor agrees your injury is work related s/he should give you a Workers' Compensation Medical Certificate. Give the original to WorkCover and a copy to your employer.
  4. Fill in an Application for Compensation from your nearest WorkCover office. WITHIN 6 MONTHS
  5. Complete an Employment Declaration if you are claiming for lost wages.
  6. Attach your Workers' Compensation Medical Certificate to the Application for Compensation and attach an Employment Declaration if required - WorkCover needs these forms and your Employer's Report to consider your application.
  7. You may be asked to attend a medical assessment.
  8. Once your case is assessed by WorkCover you will receive a written assessment and/or lump sum offer.
  9. You should seek legal advice at this stage. You may, at any stage seek legal advice. If you wish to find out about your accident claim you may wish to complete the questionnaire in the Enquiry Section of this site now. If your personal injuries specialist solicitor believes you are entitled to common law compensation, your matter will proceed further.
  10. Once your case is in the hands of a personal injuries specialist solicitor the following steps may be taken on your behalf :
  11. Both sides will attempt to settle out of court. Over 95% of all personal injuries claims settle out of court.
  12. You will be asked to attend medical examinations.
  13. Opinions will be sought from your Barrister, medical and financial experts to determine a reasonable claim for your losses and damages.
  14. At some stage, depending upon certain procedures being exhausted, as well as time limits of your particular case, court proceedings may be issued. The matter may still settle out-of-court.
  15. You will be asked to complete HIC forms - these are Health Insurance Commission details of your medical visits. These are often regularly sent to you to 'tick' updates only and should be returned to us as quickly as possible as they have some bearing on your loss and damages estimations.

Your personal injuries specialist solicitor will be able to help and advise you of when and what steps you need to take. To submit an enquiry, click here now.

The above list is not an exhaustive list of all of the procedures which may be necessary to carry out and should be read as a basic guide only. The purpose of its inclusion is to allow you some overview of how your case is being facilitated on your behalf, even though you may not be aware of all the work involved in bringing your case to a successful conclusion.

Accident Compensation Advice will retain personal injuries specialist solicitors from K M Splatt & Associates. K M Splatt & Associates at all times attempts to keep you informed of the progress of your case. In order to keep your costs down, and allow us the time to work quickly and efficiently on your behalf, we ask that you utilise email to request updates on your case where necessary and re-read these steps for an indication of where your case may be up to.

Different cases take different amounts of time to resolve. On average, work accident claims take approximately 18 months to conclude. Your solicitor will inform you whether your case is straight forward or whether it will take longer. Enquire now about your workers compensation claim (Queensland workers WorkCover claim).