Injuries can and do occur in the Queensland workplace. If it happens to you it is important you know your legal rights and entitlements.
Workplace injuries can range from serious illness/disease, injury or damage (including amputations, fractures and brain injuries) through to less severe injuries such as strains and sprains (e.g. repetitive strain injury, carpal tunnel syndrome). Work can be the sole cause of diseases or injuries, or it can aggravate or exacerbate existing injuries or diseases.
Mental injuries are treated just as seriously as physical ones. If you are suffering a psychological condition because of stress, or leading to events such as a heart attack or worsening of a pre-existing condition, you may be eligible for workers’ compensation.
Claims generally fall into two categories; workers’ compensation (or “statutory”) claims and common law (or “negligence”) claims.
Workers’ compensation is a statutory scheme of insurance that pays the wages and medical expenses of employees who have been injured in the workplace. WorkCover Queensland is generally the insurer responsible for making a decision on the claim; however, some (usually larger organisations) employers may be self insured.
As workers’ compensation claims are decided on a “no fault” basis, compensation is paid regardless of who was at fault for causing the injury, unless the injury is self-inflicted or caused by serious and wilful misconduct (with some exceptions). As long as employment was a “significant contributing factor” (or, for a psychological claim, the major significant contributing factor) to the injury, you should be entitled to make a claim. There is also the ability to lodge a claim for injuries suffered while travelling for work or while receiving medical treatment for a work injury.
That’s not to say that workers’ compensation has no limits. Your entitlements are limited to your medical and rehabilitation costs and wage benefits until your injury is stable and stationary. There is also usually a limited period under which you will be able to claim wages and/or medical expenses, unless you have very serious injuries. In this sense, workers’ compensation is more like a statutory minimum or safety net.
All claims in Queensland must first be lodged as a statutory claim before a common law claim can be lodged.
Common Law Claims
A common law claim gives the injured worker the opportunity to claim for all the damages and loss incurred as a result of their work injury. It is not limited to the statutory benefits available under the workers’ compensation scheme.
Common law claims will be, in some cases, more desirable. But there is one key requirement for a common law claim: unlike the “no fault” system of workers’ compensation, a claim for common law damages is only possible if the injury was caused, entirely or partially, by the negligence of a third-party (generally your employer or a co-worker). If you, as the employee, were deemed to be responsible for some or all of the damages and loss, the compensation awarded would likely be reduced.
The Workers Compensation Claim Process
If you are injured at work you should:
- Notify your employer immediately;
- See a doctor to get a workers’ compensation medical certificate;
- Lodge a claim with WorkCover Queensland. You can do this by telephone or online at the WorkCover QLD website, or by way of claim form.
Once a claim has been made, a WorkCover Queensland claims representative will be allocated to your matter. Normally, WorkCover will contact both the worker and employer within three business days of the claim being made.
Lodging Common Law Claims
Common law claims go through a dispute resolution process and there is the potential for litigation if a settlement cannot be negotiated between the parties.
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.
Firstly, your lawyer will send a Notice of Claim for Damages to your employer and WorkCover which sets out the allegations against your employer and damages you claim to have suffered. The clock is now ticking. WorkCover has six months to investigate the claim. Its lawyers act on behalf of WorkCover and your employer. At the investigation’s conclusion WorkCover must either admit or deny your employer is liable for your injury.
Parties are encouraged to avoid court and instead make real attempts to negotiate an out-of-court settlement. If settlement can be reached, the worker must agree in writing to release WorkCover and the employer from any further liability and to keep the settlement confidential.
You can expect this process to take about 12 months, but if a settlement hasn’t been reached by this point court action will begin. You may wait up to 12 months before a trial is heard, and it may take weeks or months after the trial for a judgement to be delivered.
How long do I have to make a claim?
You must lodge your worker’s compensation claim with WorkCover Queenlsand within six months of the injury taking place. If you wish to pursue a common law claim, you need to file a Notice of Claim for Damages with WorkCover Queensland within three years of the injury occurring.
It is important that, even if you are considering pursuing a common law claim, you initially lodge a workers compensation claim with WorkCover Queensland.
Despite this time buffer, it is important you act quickly. There are two reasons for this:
- Some injuries are more complicated to diagnose than others. An injury leading from an accident may appear obvious, but injuries that grow and build over time, especially psychological injuries, are harder to pin-point.
- The Queensland workers’ compensation system is complex. Trying to navigate on your own could hurt your chances of a successful claim or maximising the compensation you receive.
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.