Workplace Injury Claims – Summary
Your employer has a duty to provide all workers with safe systems of work and to ensure the health and safety of all employees at work is protected. Your employer may also be responsible for the negligent acts of co-workers which cause you injury.
In Queensland, if you have suffered a workplace injury, 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 any offer of compensation made to you in a statutory claim. The difference between the two types of claims can often mean a difference of hundreds of thousands of dollars to you.
Accepting an initial lump sum offer of compensation instead of making a common law claim could be the biggest mistake an injured person makes in their life.
Step 1: Statutory Workers’ Compensation Claim
The first step in a work injury claim is to make a statutory claim for workers’ compensation by completing a simple claim form. Claims are usually made through the most common workplace injury insurer in Queensland, Workcover Queensland. This is the claim process that a lot of Queenslanders unfortunately find themselves reasonably familiar with.
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 Workcover accepts your statutory claim, you will be paid benefits (in the form of weekly payments) whilst you recover and undergo rehabilitation for your specific injuries. The benefits typically include compensation for lost wages and funding for your medical treatment and rehabilitation costs.
Remember, Workcover will only provide you with rehabilitation for the work-related injuries which they are aware about. You need to tell Workcover about all of your injuries to be provided with rehabilitation. For example, if you tripped over at work and suffered a serious knee injury, it is common to develop a psychological injury several months later. It may seem obvious that you require counselling to help you learn to adapt to your new circumstances, however Workcover will not provide you with funding for this unless you specifically request it. Similarly, if you injured your back in a work accident, it is possible to have severely injured your lower back (lumbar spine) but only moderately injured your neck (cervical spine). Because most injured people tend to focus on their main injury (such as the severe lower back pain) it is common for Workcover not to know about the neck pain and therefore let it go untreated.
Closure Of Your Workcover Claim And Your Notice Of Assessment
Workcover will eventually reduce your weekly payments as you complete your rehabilitation and reach your point of maximum medical improvement. Around this time, Workcover may require you to attend an Independent Medical Examination (IME) to confirm that no further treatment would benefit your recovery from your injuries. If the IME confirms that no further treatment is necessary, Workcover 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, issue you with a Notice of Assessment.
If Workcover closes your claim without issuing you with a Notice of Assessment, you are entitled to ask for one.
Your Notice of Assessment Assessment will include a percentage score from 0-100% which grades the severity of your injuries. This is known as your Degree of Permanent Impairment (DPI). If your impairment score is:
- 0% – Workcover will close your claim without offering you any lump sum compensation amount;
- greater than 0% but less than 20% – Workcover will make you an offer of lump sum compensation and you need to make an irrevocable decision as to whether to accept the lump sum offer or proceed to a make a common law claim;
- greater than 20% – you can accept the lump sum offer and proceed to a common law claim as well.
If you have been issued a Notice of Assessment and your degree of permanent impairment is assessed to be between 0% – 20%, it is critical that you don’t 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. By ignoring or rejecting the offer, you can instead make a common law claim for a much larger lump sum compensation pay out.
Step 2: 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 cannot commence a common law claim for negligence against your employer until a Notice of Assessment of permanent impairment is issued.
You also must be able to prove 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 co-worker’s or employer’s negligence caused or contributed to your injury (i.e. your employer breached their duty of care).
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.
Strict time limits apply to making a common law claim and the process is complicated.
Roche Legal are experienced workers compensation lawyers. We offer free initial consultations over the phone and can advise you immediately of your prospects of making a successful common law claim.