Summary

Your employer is under a duty to provide you with safe systems of work and to ensure your health and safety at work is protected. Your employer may also be responsible for the negligent acts of co-workers which cause you injury.

In Queensland, the Workers Compensation and Rehabilitation Act (2003) requires that you must first make a statutory workers compensation claim before you are entitled to make a further claim through common law. A statutory claim helps cover lost wages and get you back on your feet, whereas a common law claim seeks damages for negligence of your employer/co-workers. Damages available through a common law claim are almost always vastly more significant than a statutory claim.

Step 1: Statutory Workers’ Compensation Claim

The first step in a work injury claim is to make a statutory claim for workers’ compensation. Claims are usually made through the most common workplace injury insurer in Queensland, Workcover Queensland.

You do not have to prove that anyone else was at fault for your injuries. You simply must be able to show that:

  • you are injured; and
  • your job was a significant contributing factor to your injury (this means a large part of the cause of the injury).

Typically, injured workers are able to complete this step without the assistance of a lawyer. However, you will need a workers compensation medical certificate from your doctor.

Once the insurer accepts your statutory claim, you will be paid benefits (in the form of weekly payments) whilst you recover and undergo rehabilitation. The benefits typically include compensation for lost wages and funding for your medical treatment and rehabilitation costs.

Step 2: Common Law Claim

The insurer (likely to be Workcover Queensland) will eventually taper off your benefits as you reach the point of maximum medical improvement. When this happens, they will either close your claim as you’re able to fully recover and return to the workforce, or if you continue to suffer pain and disability, they will issue you with a notice of assessment and make you an offer of lump sum compensation. It is important to not accept any offer of lump sum compensation before speaking to a lawyer first – if you accept it, you will be prevented from making a common law claim.

When you have been issued with a notice of assessment, you are entitled to ignore/reject the insurer’s offer of lump sum compensation, and instead make a common law claim.

A common law claim is where the worker seeks damages through the courts. The benefit of taking your claim through the court process is that you are entitled to claim for larger amounts than provided for in statutory claims.

You must be able to show that:

  • you are injured;
  • your job was a significant contributing factor to your injury (this means a large part of the cause of the injury); and
  • your employer’s negligence caused or contributed to your injury.

Sometimes injured workers feel like their injuries were because of their own fault and don’t fully consider how their employer could have prevented the injury. A personal injury lawyer is often able to assist in this regard, and guide you through the common law claim process.

Frequently Asked Questions

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

To make a successful claim, it’s important to do three things immediately:

  1. Report your injury to your employer immediately.
  2. Visit a qualified medical practitioner as soon as possible. You’ll need medical evidence to prove your injury is work related.
  3. Lodge a claim with your employer’s insurer.

You should obtain legal advice before signing any documentation from WorkCover, otherwise you might lose your right to claim damages. ROCHE Legal will guide you through the WorkCover legal process and carefully explain the options available to you.

Do I have a claim for compensation?
Persons who suffer injuries from accidents at work might be eligible to make a compensation claim.

In Queensland, the Workers’ Compensation and Rehabilitation Act 2003 (Qld) requires all employers to hold insurance for each worker/employee to cover the event that someone suffers an injury and makes a claim for damages. This means that claims are usually against the largest workers’ compensation insurer, Workcover Queensland rather than your employer directly.

If you have been injured at work you will be entitled to workers compensation under the statutory scheme irrespective of whose fault it was. In addition you may be able to file a common law claim if you can show fault on the employer’s part.

You may also be entitled to statutory workers’ compensation if you were injured travelling to or from work, but making a common law claim is less likely. Depending on the circumstances, you might also be entitled to additional compensation through CTP insurance if a vehicle was involved.

You may also be entitled to workers compensation if you were travelling because of work e.g. between worksites.

Who can I bring the claim against?

You can bring the claim against your employer but your employer’s insurer will be responsible for paying you compensation if you are successful with your claim.

How do I know if my employer has workers compensation insurance?

All employers in Queensland are required by law to have workers’ compensation insurance. The most common insurer for workplace accidents is Workcover Queensland.

What can I claim compensation for?
For a  Statutory Workers Compensation claim:

May include a lump sum for permanent impairment, and weekly payments for lost wages (usually up to 85% of your ordinary wage), medical treatment and rehabilitation costs, and return to work services (such as retraining).

For a common law claim:

If the injury was not your fault, you may be able to claim compensation for:

  • Pain and suffering
  • Loss of past income
  • Loss of future income / earning capacity
  • Medical, hospital and rehabilitation expenses
  • Future expenses relating to your injury
  • Travelling expenses
  • Cost of return to work services
What has to be proven for my claim to be successful?
For a Statutory Workers Compensation Claim – You have to prove that:
  • you were employed at the time of the injury by the employer; and
  • you were a ‘worker’ in the legal sense; and
  • the accident happened because of or during the course of your employment but not whose fault it was; and
  • you suffered an injury or illness as a consequence; and
  • your claim was made within the time limits.

For a Common Law Claim – You have to prove that:

  • the accident happened; and
  • your employer was at fault; and
  • you suffered an injury or illness as a consequence; and
  • your claim was made within the time limits.
Are there any important time limits to bring a claim?
For a Statutory Workers’ Compensation Claim – In Queensland usually you have:
  • 30 days to notify your employer of your injury.
  • 6 months to lodge a statutory workers compensation claim.
  • If you have been on workers’ compensation and then referred by the insurer to attend an independent medical examination – you will soon be given a Notice of Assessment with an offer of a lump sum by way of compensation. You have 20 business days from the date of receipt of the Notice of Assessment to accept or reject the offer. However, if you take no action, the offer is simply deferred. We recommend that you take no action until you talk to a personal injury lawyer first. This is because if you defer or reject the offer, you are able to make a claim for more significant common law damages through the court provided you can prove the accident was the employer’s fault.

For a Common Law Claim – In Queensland, you need to make a claim within:

  • 3 years from the date of the accident; or
  • 6 months of receiving the Notice of Assessment from the insurer.
Are there any other limits to bringing a claim in Queensland?

Yes. You must have greater than 5% permanent impairment to make a common law claim if the accident happened on or after 15/10/2013 and before 31 Jan 2015. If you suffered an injury during this particular period and you were assessed as having less than 5% permanent impairment, then you can apply to have this assessment reviewed.

Your degree of permanent impairment will be listed in your Notice of Assessment.

For injuries sustained on or after 1 Feb 2015, there is no minimum permanent impairment threshold.

Who pays me the compensation?

Your employer’s insurance company pays your compensation if your claim is successful, regardless of whether you have a statutory claim or common law claim.

How much compensation can I claim?

This depends upon your individual circumstances. At ROCHE Legal we seek the maximum amount of compensation available for your situation.

From experience, making a common law claim usually results in receiving more than 10x the original lump sum offer of compensation made at the end of a statutory claim.

How long does a claim for compensation take?

By law, parties are required to participate in a compulsory settlement conference within 9 months of serving a compliant common law claim on the worker’s employer and their insurer. Your matter has the potential to be resolved at this point if the insurer is prepared to offer an appropriate settlement.

If the amount offered is not fair and you deserve more, the team at ROCHE Legal will advise you. The next step would be to proceed through the court system towards a trial. Most claims do not require a trial and are able to be settled within 9 months. If your matter does require a trial, we endeavour to have the matter concluded within 2 years.

Will my employer sack me if I make a claim?

Employers are not usually prepared to do this as there are laws in place to ensure this does not happen. However, your employer may not keep your job open if you cannot work anymore due to your injuries or illness.

Can I make a claim on behalf of the estate if the injured person passes away?

The law allows for a dependency claim to be made in the event of death. We can also help you determine if there are any death benefits provided for in the deceased’s superannuation fund and in the event the deceased had any life insurance cover.