Queensland’s workers’ compensation is complex. In this blog we answer five questions commonly asked by our clients.
How do I lodge a claim?
A workers compensation claim must be lodged within 6 months of sustaining the injury or becoming entitled to compensation (i.e. requiring a medical expense paid or time off work due to incapacity). If a claim is lodged more than 20 business days after the entitlement arises, the insurer is only liable to pay compensation for a period starting no earlier than 20 business days before the application was lodged.
A claim lodged outside the 6 month period will still be considered by WorkCover Queensland if you can show that your failure to lodge the claim in time was due to a mistake, being outside of the State, or any other reasonable cause.
In order to lodge a claim, you will need to notify your employer of the injury as soon as practicable, and lodge a workers compensation claim form with WorkCover Queensland. You will also need to obtain a work capacity certificate from your treating doctor outlining the nature of your injury, the cause (or likely cause) of the injury, as well as details of any incapacity for work or treatment recommended.
Once you have lodged your claim, WorkCover Queensland (or the self-insured employer, if that is the case) must make a decision on the claim within 20 business days after the claim was lodged. Due to strict time limits, we recommend you obtain legal advice immediately if you receive a decision rejecting your claim.
If my claim is accepted – what are my entitlements?
Generally there are four entitlements under the Queensland workers compensation law, including:
Weekly payments of compensation
If you are incapacitated for work as a result of a work injury, either partially or totally, you should have an entitlement to weekly payments of compensation.
The rate of weekly payments depends on whether a worker’s employment is governed by an industrial instrument, i.e. an award of industrial agreement. It will also depend on the earnings of the worker in the 12 months preceding the incapacity for work. It is often a complex calculation for which we would recommend you obtain legal advice.
This table prepared by WorkCover Queensland sets out the amounts of weekly compensation payable under the Act:
Weekly payments of compensation stop when the first of the following happens:
- The incapacity because of the work related injury stops;
- The worker has received weekly payments for the incapacity for 5 years;
- The worker has received the maximum amount of compensation for weekly payments (~$320K)
A worker’s entitlement to all other forms of compensation stops if (b) or (c) above apply.
It is recommeded you get legal advice if you disagree with WorkCover Queensland’s decision to cease your entitlement to weekly payments.
A worker is entitled to the cost of medical treatment or hospitalization that the insurer considers reasonable having regard to the worker’s injury.
For a worker who does not suffer from serious personal injuries, the entitlement to medical expenses stops either when:
- The entitlement to weekly payments of compensation stops; and
- Medical treatment is no longer required because the injury is not likely to improve.
It is recommended you get legal advice if you disagree with WorkCover Queensland’s decision to cease liability for your work-related medical expenses.
Lump sum payment for permanent impairment
Any worker suffering a work injury is entitled to request an assessment to determine whether they are entitled to a lump sum payment for permanent impairment in addition to the abovementioned forms of compensation.
The degree of permanent impairment is assessed by:
- An audiologist for industrial deafness;
- A medical assessment tribunal for a psychiatric or psychological injury
- A doctor for any other injury.
Impairments to separate body parts arising from the same trauma are able to be combined to form an overall degree of permanent impairment.
The overall percentage of impairment will then be multiplied by the maximum compensation payable (presently ~$320k) to determine the lump sum entitlement. For example, a percentage impairment of 10% will entitle a worker to 10% of the maximum compensation payable, i.e. ~$32k.
For workers suffering from industrial deafness, further claims for lump sum compensation can be lodged every 3 years, with compensation being awarded for any additional industrial deafness sustained in that period.
It is wise to get legal advice immediately following any assessment of your degree of permanent impairment.
Workers with accepted claims are entitled to be reimbursed the cost of necessary and reasonable travel expenses for the following attendances:
- Medical treatment;
- Medical Assessment Tribunal appointments and;
- Independent medical examination appointments.
There is no ‘per kilometre’ or standard rate of reimbursement. Travel is reimbursed according to what is the most reasonable method of travel available to the worker. WorkCover generally considers public transport to be the most reasonable method of travel. Short trips of under 20km are generally excluded. WorkCover also won’t pay for travel to a treatment provider if there is a closer treatment provider, but you choose to attend another further away.
WorkCover can also reimburse parking (for medical treatment), meals when required to travel a whole day or overnight, and reasonable itemised chemist expenses directly related to the work injury.
If I lodge a claim, can I lose my job?
One of the main goals of the workers compensation scheme is to return injured workers to work as quickly and efficiently as possible. As such, there are certain protections in place to ensure that employers do not terminate workers’ employment when they sustain a work injury.
All employers in Queensland are required to be insured for injuries sustained to their employees with either WorkCover Queensland or a separate insurer. It is illegal for an employer to, directly or indirectly, charge a worker for compensation for an injury that is, or may be, sustained by the worker.
Do I have to disclose a previous injury or claim to a new employer?
The WorkCover legislation specifically provides that, if requested in writing by an employer, a prospective worker must disclose any pre-existing injuries or medical conditions that a person suspects, or ought reasonably to suspect, would be aggravated by performing the role and duties with that employer. Failure to disclose any pre-existing injuries or medical conditions means that the worker is not entitled to compensation or to seek damages for any work event that aggravates the pre-existing injury or medical condition.
The duty to disclose does not apply to workers engaged by the employer before the worker has had a reasonable opportunity to disclose any relevant pre-existing injury of medical condition. It also does not apply if the employer has requested disclosure but failed to advise the worker (a) the nature of the duties involved and (b) that, if the worker makes a false or misleading disclosure, they will not be entitled to compensation for any work event that aggravates the pre-existing injury or medical condition.
Can I sue my employer?
In certain cases it may be preferable to sue your employer for damages rather than simply seeking the standard entitlements available under the WorkCover scheme. A claim for damages (also known as a “common law claim”) allows you to sue your employer for all losses incurred due to a work injury (for example, limited future earning capacity or future medical expenses, etc.) as opposed to claiming the limited benefits provided by WorkCover.
To be eligible to sue your employer, you must show that:
- You suffered a work injury,* and;
- Your employer (or a co-worker or other agent of the employer) was negligent, and;
- The employer’s negligence caused your work injury.
*If you were injured between 15 October 2013 and 30 January 2015, you will also need to be assessed as suffering from a 6% or greater degree of permanent impairment (“DPI”). There is no DPI for those injured outside that period.
Suing your employer is highly complex and can impact on entitlements available under a workers compensation claim. Given the complexity of such claims, if you think you have sustained an injury resulting from the suspected negligence of an employer, we recommend you seek legal advice as soon as practical.
In order to pursue a common law claim, a worker is generally required to make an election with WorkCover Queensland to proceed with a common law damages claim. This election can impact greatly on your statutory entitlements and we recommend you seek legal advice prior to doing so.
Once the election is made, a worker is generally required to lodge a Notice of Claim for Damages with WorkCover Queensland within 3 years of the date of injury. WorkCover then has six months to investigate the claim and ultimately admit or deny the employer’s liability for the injury.
If liability is admitted, the parties will generally attempt to resolve the claim by way of negotiation. This will involve obtaining detailed evidence as to the extent of your injuries, in order to determine the cost of your work injury over your lifespan.
If liability is denied, or if liability is admitted but the parties are unable to negotiate a settlement, the matter will likely go to Trial and be heard before a Judge. Ultimately, the Judge will decide on whether the employer is liable and on the overall amount of compensation.
Tindall Gask Bentley Lawyers has been helping injured people for more than 40 years. Call us today on 1800-730-842 and book your free initial interview, or register your details here and we’ll be in touch soon.