When catastrophic injuries strike in the workplace, lives are forever changed, and the road to recovery can be extremely daunting, including dealing with WorkCover, the NDIS or the NIIS. In this article, Jeremy Roche, Compensation Law Partner and Law Society Accredited Specialist in Personal Injury Law, explores the complex landscape of catastrophic work injury claims and the treatment options (including funding) available for individuals and families facing the aftermath of serious workplace accidents.
In the blink of an eye, life can take an unexpected turn. Catastrophic injuries at work can leave individuals and their families grappling with a difficult reality they never anticipated.
In these challenging times, the need for financial stability, access to long-term quality medical care, and expert legal guidance becomes paramount.
Serious or catastrophic injuries are not merely ‘accidents’; they are life-altering events that often bring about permanent disabilities and changes, rendering the person unable to return to work and dependent on extensive, ongoing treatment and care. Recovery is long, laborious, and challenging – so having timely, proper medical treatment and financial support in place is vital.
Attwood Marshall Lawyers routinely acts in catastrophic injury claims for those who suffer these devastating, long-term and often near-fatal injuries.
These cases involve high-level legal intricacies and require all-encompassing attention by expert lawyers, adept at dealing with injury compensation schemes and support agencies. Some example cases we have managed include:
- A factory worker who was crushed by faulty machinery in a processing factory suffered debilitating injuries, including severe crush fractures to the chest, sternum, ribs, left arm, left wrist and hand, left shoulder, left tibia, left fibula, left ankle, punctured lungs, amputation of fingers, severe nerve damage, and a debilitating psychiatric condition.
- A worker who suffered a traumatic brain injury when he was struck in the head, knocked out and almost killed, by the metal tines of a forklift that a co-worker was negligently driving. The brain injury led to significant cognitive difficulties, communication problems, long-term memory issues, permanent incapacity for work, and the need for lifelong treatment and substantial care and support services.
- An electrician who suffered extreme internal and external burns and extensive scarring to 40 per cent of his body following electrocution while working on a live electrical board under the direction of his superior. His psychiatric injury was such that he could never work as an electrician again and would struggle with any form of future employment.
- A general labourer whose right (dominant) arm was crushed and almost completely severed in an excavator’s closing hydraulic clam-shell bucket, resulting in an above-elbow amputation of the arm and a debilitating psychiatric injury. The labourer’s ability to work and earn income was substantially impaired, and he will struggle to work again in any capacity.
Despite continual improvements in industry knowledge, safety procedures, and technology, we continue to see new and horrific ways in which Australian workers incur catastrophic and life-changing injuries at work.
Seriously injured workers may obtain access to compensation, damages, insurance payments and benefits. Still, no amount of money can genuinely rectify the terrible and life-altering consequences of suffering severe or near-fatal injuries at work.
What is a Catastrophic Injury?
In the injury compensation world, “catastrophic” generally refers to the most severe injuries suffered in work, motor vehicles, public liability, or other types of accidents. Catastrophic injuries often occur in near-fatal accidents and have severe, long-lasting effects on the injured person and their loved ones. These injured individuals are often unable to work for lengthy periods of time and require high levels of care and support, comprehensive treatment, costly equipment, and aids, and sometimes home and vehicle modifications.
Examples of “catastrophic” injuries include:
- Brain Injuries
- Spinal Cord Injuries
- Amputation (multiple or high level)
- Crush Injuries
- Catastrophic Illness or Condition
- Severe Burns
- Permanent blindness caused by trauma.
Workers’ Compensation and National Injury Insurance Scheme (NIIS)
Claiming compensation for a catastrophic injury at work in Queensland
If you suffer a catastrophic injury at work in Queensland, you can claim for workers’ compensation benefits and for National Injury Insurance Scheme Queensland (NIISQ) benefits.
Both are administered under the Workers Compensation and Rehabilitation Act 2003 (Qld).
Here is a run-through of the process you can expect:
- Lodge a workers’ compensation claim with the workers’ compensation insurer (i.e. WorkCover Queensland, or your employer’s self-insurer). Claims for statutory workers’ compensation must be made within six months of the accident, although there are occasionally exceptions, and this time can be extended.
- Once lodged, WorkCover will review your claim and consider whether you are entitled to workers’ compensation and NIISQ benefits.
- If you can receive both benefits, WorkCover will arrange for NIIS to manage and pay for your treatment, care and support costs (instead of WorkCover doing so). You will be assigned an NIISQ Support Planner to facilitate your ongoing access to treatment, rehabilitation, care and support. Meanwhile, WorkCover will pay for your weekly payments (i.e. income supplements) while you cannot work.
- You will then be an “interim participant” of NIISQ for up to two years. At the end of those two years, WorkCover conducts an assessment to see whether you qualify as a “lifetime participant” of NIISQ. If so, NIISQ will continue to pay for your treatment, care and support needs for the rest of your life, unless you choose to “opt out” of NIISQ benefits.
A lifetime participant of NIIS would not “opt out” unless they have a common law claim for negligence against their employer for causing their work injuries.
If a lifetime participant does not “opt out” of NIIS, then they will be able to claim for general damages (i.e. pain and suffering), past and future income loss, and potentially some costs from their workers’ compensation claim (depending on whether they have a “certificate injury”). However, they cannot claim compensation for past and future treatment, or paid care and support costs from WorkCover because they already have lifelong access to those benefits via NIISQ.
If a lifetime participant of NIIS does “opt out”, they will be permitted to claim a lump sum for past and future treatment costs and paid care and support as part of their workers’ compensation claim for negligence, though they will be permanently precluded from receiving NIISQ benefits.
Whether to “opt out” or remain in NIIS has significant ramifications. For some claimants, it will be more advantageous to remain in the NIIS scheme, while for others, opting out and pursuing a larger common law settlement in their WorkCover claim will be more beneficial.
Some advantages of “opting out” include being able to claim a more considerable lump sum for your common law damages claim against your employer and then managing your own future treatment and care costs from your compensation amount rather than relying on NIIS or NDIS.
Some disadvantages of “opting out” include losing lifetime access to NIIS as a lifetime participant and being responsible for all your future financial and medical needs.
People who suffer catastrophic injuries in the workplace will generally have a strong common law claim in negligence against their employer (which is insured by WorkCover in all claims). As a rough rule of thumb, you will usually elect to opt out, but this important decision should only be made after carefully weighing up all of your options and receiving the right legal advice.
Catastrophic Work Injury Claims in New South Wales
Like Queensland, New South Wales defines catastrophic injuries as spinal cord injuries, brain injuries, multiple or high-level amputations, severe burns and permanent blindness, as set out in Part 9 NSW Workers Compensation Guidelines.
Those who suffer catastrophic injury in NSW can apply to the National Disability Insurance Scheme (NDIS) for treatment, care and support assistance. Similar “interim” and “lifetime” participant procedures apply.
However, NDIS may recover what it has paid towards a claimant’s treatment and care costs from any compensation payout they obtain in a common law damages claim against their employer/WorkCover for their work injuries. All catastrophically injured claimants must obtain expert legal advice concerning their injuries and entitlements.
Catastrophic Work Injury Claims in Victoria
Similar provisions in the Victorian legislation apply under WorkSafe Victoria. The interaction between the NDIS and the state workers compensation entity is almost identical, although the claims processes and amounts payable for compensation in all states are very different!
Total Permanent Disability claims
Workers who have suffered catastrophic injuries that prevent them from working in the future can also apply for any Total Permanent Disability (TPD) payments they may be eligible to claim through their superannuation, or an external insurer if someone holds TPD insurance outside their superannuation.
The claim for a TPD payout is made in addition to any common law compensation claim for the catastrophic work injuries suffered.
Often, workers will receive their TPD payout during their common law claim (i.e. before settlement or court award of their common law claim), providing them with some funding to get by.
You can read more about TPD claims in our previous blogs here:
- Are you unable to work due to an injury, illness, or medical condition? You may have a TPD claim
- Making a total and permanent disablement claim or terminal illness claim on your super
Attwood Marshall Lawyers – helping people through the toughest times for over 75 years
Our firm intends to help people and change their lives for the better. Our personal injury lawyers are trained to provide empathetic and multi-faceted assistance to severely injured workers and their families. We are community-focused, empathetic and determined to help you wherever we can.
If you can no longer work because of an injury, illness or condition, we want to help you get things back on track and achieve financial security as soon as possible.
We offer free, no-obligation initial consultations to provide you with all the information you need to understand what entitlements you may be able to access, options regarding your treatment, and how to get your claim underway. Please get in touch with our Compensation Law Department on 1800 621 071 to discuss your circumstances.