Workplace Injury & Workcover Lawyers Brisbane

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 – this is usually Workcover Queensland.

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.

Read our blog post for more details on what to do after a workplace accident.

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.

You can bring the common law claim against your employer but your employer’s insurer (usually Workcover Queensland) will be responsible for paying you compensation if you are successful with your claim.

If you were injured at the premises of another company, you may also have a public liability claim to make in addition to your workers compensation claim.

If you were seriously injured, you may also be able to make a TPD claim in addition to your common law claim.

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

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

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 or breached their duty of care; and
• you suffered an injury or illness as a consequence; and
• your claim was made within the time limits.

Duty of Care

It is well recognised at common law that an employer owes an employee a duty of care.

Breach of Duty

Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) states when an employer will be found to have breached its duty of care.

305B General principles

(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—

(a) the probability that the injury would occur if care were not taken;

(b) the likely seriousness of the injury;

(c) the burden of taking precautions to avoid the risk of injury.

Causation

Even if it can be established that your employer breached their duty of care to you, it is necessary to establish that the breach of duty caused your injury.  In this regard, section 305D states:

 305D General principles

(1) A decision that a breach of duty caused particular injury comprises the following elements—

(a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation);

(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).

(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.

(3) If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach—

(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

(b) any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.

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.

Your employer’s insurance company (usually Workcover Queensland – but not always) pays your compensation if your claim is successful, regardless of whether you have a statutory claim or common law 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 winning common law claim usually results in receiving more than 10x the original lump sum offer of compensation made by Workcover at the end of a statutory claim.

If you are represented on a no win no fee basis, your legal costs such as solicitor fees, disbursements and court costs are then deducted from the compensation payment you receive.

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.

Due to the complex nature of common law claims for work injuries, the first step to making a common law claim is to consult a lawyer as soon as possible. During the first consultation, your lawyer will:

• ask you a series of questions to evaluate your prospects of making a successful claim;
• advise you of any urgent steps that need to be taken to protect your time limits to bringing your claim; and
• provide you with an authority document for your signature to give your lawyer access to your complete Workcover file.

Obtaining Your Workcover File

Workcover keeps a written record of your entire Workcover claim which includes:

• a Communications Report – a log of all telephone communication between Workcover and yourself, your employer, your doctors and anyone else they speak to in relation to your claim
• a Payment History Report – a summary of all expenditure Workcover has paid in relation to your claim, such as weekly compensation payments to you, payments to the hospital and doctors for surgery and treatment, and payments in relation to your rehabilitation.
• all inbound and outbound written correspondence – including emails to you, reports to and from your doctors, and independent medical examination reports.

Workcover will not provide you with a complete copy of your file (even if you ask for it), however they may provide you with some select documents. However, when a lawyer requests your complete file, Workcover are obliged to provide it in full. Once your lawyer has received your complete Workcover file, they will be able to determine whether your injuries have been appropriately managed and whether you require further treatment before your statutory Workers Compensation Claim comes to an end.

Employers are not usually prepared to terminate your employment following a workplace accident as there are laws in place to ensure this does not happen. However, not all employers follow the rules. Plus, your employer may not keep your job open if you cannot perform the required duties anymore due to your injuries or illness.

Yes – the law allows for a dependency claim to be made in the event of death. These claims can be made by anyone who financially depended on the deceased – typically their spouse and children.

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 private life insurance cover.