Attwood Marshall Lawyers Partner and QLD Law Society Accredited Specialist in Personal Injury Law, Jeremy Roche, discusses workplace injuries and WorkCover Queensland claims with Steve Stuttle on Radio 4CRB.
Introduction – if I’m injured at work – who pays?
Most people go through life without worrying about what might happen if they are injured at work. Injured workers usually don’t know where to start! Work injuries invariably cause pain, suffering, financial distress, and uncertainty about the future. Figuring out how to claim workers’ compensation can be confusing. Fortunately, as workers’ compensation experts, we can break it all down for you. Attwood Marshall Lawyers acts for hundreds of injured workers across Queensland in making compensation claims.
There is a common misconception that many injured workers have: if they make a WorkCover claim to compensate them for their injuries and loss of income, their employer will hold it against them, and they may lose their job. Another misconception is that their boss will have to pay any compensation and medical expenses out of their own pocket. This is not the case.
In Queensland, all employers must hold an insurance policy with WorkCover Queensland (or an alternative insurer).
The purpose of Queensland’s mandatory workers’ compensation scheme is to ensure that anyone injured at work can access benefits and compensation for their injuries. Accidents happen, and employers understand this, which is why employers are forced to pay for workers’ compensation insurance to cover their employees.
They pay workers’ compensation premiums based on their annual wages total, so that all employees are covered for loss of wages and medical expenses in the event they sustain an injury at work. This cover includes workplace deaths with lump sums payable to the spouse and dependants of the deceased worker.
When you make a claim, your employer does not pay for your medical treatment, your weekly income payments, or your return to work assistance – that is all paid for by your employer’s insurer (which, for 95% of Queensland employers, is WorkCover Queensland).
Remember – the insurer has raked in premiums from employers across Queensland and has been paid for the insurance that you are going to claim against. Your employer does not have to put their hand in their pocket to cover any of the costs for your claim. Your employer may incur additional insurance premiums if they have numerous claims, but this is the same with any insurance cover – the more claims you have, the higher the premiums are. Sometimes, having a number of claims results in better work safety and a review of the employer’s work systems.
Secondly, if your employer terminates you for making a claim (which in the vast majority of cases, does not occur) then the insurer must pay you weekly income payments to get by and provide you with return to work assistance (e.g. paid employment assistance providers). There can also be penalties for employers who unfairly terminate injured workers.
Now that we know that it is preferable to everyone (except for insurance companies) to claim compensation when you are injured, let’s dive into the rules around claiming workers’ compensation.
What is the role of WorkCover?
95% of employers in Queensland are insured by WorkCover Queensland. The remainder being self-insured large companies (e.g. Woolworths, Coles etc.) or companies covered by alternative workers’ compensation insurers.
The role of WorkCover is to provide fair and reasonable benefits, compensation and support to injured workers to patch them up over time and get them back to work so that they can move on with their lives and keep contributing to the economy.
For those workers who were injured through employer negligence (e.g. an unsafe system of work, faulty equipment, unsafe work procedures, lack of training, etc.), WorkCover answers those claims with a view to paying reasonable compensation to injured workers for their past and anticipated losses in the future.
WorkCover are also obliged to assist with any rehabilitation or retraining that may be required, depending on the injuries suffered and the effect this has on the injured worker. If they cannot return to their usual trade or occupation, WorkCover are obliged to assist and pay for retraining and placement in the workforce. Unfortunately, this rarely happens and, in many cases,, WorkCover washes its hands of the claim and offers to pay a paltry lump sum to conclude the claim.
There are two types of WorkCover claims
1. Statutory Benefits (“No Fault”) Claim
When you are injured at work, you can access workers’ compensation “statutory benefits”. These benefits include medical treatment expenses, weekly income payments, return to work assistance, and in cases of permanent impairment, a lump sum of compensation. Injured workers can access these benefits irrespective of fault. A worker who is injured through their own fault will still have access to these benefits – you do not need to provide evidence that the activity that led to your injury was unsafe. The “statutory benefits” system is temporary, and rather than fully compensating you for your injuries and losses, is designed to help patch you up, get you back to work (if possible) and propel you on your way. Claims typically last anywhere from a few weeks or months to 2-3 years.
At the end of your statutory benefits claim, you may consider whether to proceed onwards to the second type of claim available, known as a “Common Law” claim.
2. Common Law Claim (also known as a “Negligence” or “Fault-based” claim)
If your work injury was incurred due to employer negligence (e.g. an unsafe system of work, negligent co-worker, faulty equipment, or lack of training/procedures), you may be able to lodge a common law negligence claim for your injuries and losses.
Unlike statutory benefits claims, a common law claim is designed to compensate you for your past and future losses incurred as a result of your injury. If you go to work, and suffer an injury due to someone else’s negligence, you should be compensated for the pain, income loss, treatment costs, and other losses that occur (and may continue to occur over the rest of your life).
To succeed with your common law claim, you need to prove that the injury was caused through negligence and/or that you should have been protected from the injury occurring in the first place. That is usually much easier than most people realise. Employers owe a very high duty of care to their employees and are generally held accountable for most accidents.
Common law claims are for a once-off lump sum payment of compensation that includes your past and future income loss (including superannuation), past and future medical and rehabilitation costs, past and future paid care costs (e.g. professional cleaners/gardeners etc.), and an amount for general damages (pain and suffering). For those who have suffered serious injuries, or have been pushed out of their employment, common law claims can be the only way to get their lives back on track.
Again – it is not the employer that pays the compensation for your common law claim, it is the insurer.
To make a Common Law Negligence Claim, you will need to serve a new claim form called a ‘Notice of claim for damages’ on WorkCover and your employer.
First steps to take if you are injured at work
Employers should have a system in place for when employees are injured at work. First aid should be available, an ambulance called (if necessary), an incident report completed, a relative informed and/or a co-worker provided to assist the injured worker attend the doctor. The work accident should be investigated to ensure similar accidents are prevented in the future. Independent workplace health and safety investigations are often required. Employers are required to notify their workers’ compensation insurer of work injuries. Regrettably, not all employers have such systems in place. In a surprising number of cases, injured workers are left to fend for themselves and find their own way to treatment.
If you are injured at work:
Step 1: Health comes first. Get the medical treatment you need immediately.
Step 2: Report the incident. Most employers will provide a form for you to complete, however many do not ask you unless you request one. You should make sure you provide written notice if this is possible and keep a copy! Even if you email or text a report from your phone, this can be critical down the track if the claim is falsely denied by the employer. Remember to keep a copy of this somewhere in case your phone is lost or is replaced. Do your best to collect and report all the information relevant to your injury and how it occurred. This will be referenced later on if you make a claim as WorkCover will require a detailed incident report with witness details, photos or video footage of the accident and how it was caused, as well as photos or video footage of your injuries.
Step 3: Visit your GP and get them to complete a Qld Workers’ Compensation Medical Certificate.
Step 4: Get legal advice as early as possible. There may be a vital piece of information which will help you with your claim that you may overlook. When you are dealing with pain, trauma and injury you may not be thinking about all the details you need to support your claim later on. If you cannot do this, ask your partner, family member, or a friend, to do this for you. There are no costs involved for an initial appointment and claims are usually accepted on a ‘No Win, No Fee’ basis. What have you got to lose?
Time limits for WorkCover claims
In Queensland you have 6 months to lodge an application for workers’ compensation. This means you need to complete an application form on the WorkCover website (www.worksafe.qld.gov.au) and upload the Workcover Medical Certificate completed by your GP. The 6-month time limit is not always fatal; however, every effort should be made to comply with it.
You then have a 3-year time limitation from date of injury to commence a common law claim or your claim will be barred. This can be extended if you have not yet completed your statutory benefits claim or your injuries have not been assessed.
The earlier you see a lawyer, the easier it is to protect your entitlements.
What happens if WorkCover denies your claim?
Denying a Statutory Benefits Claim:
Once you lodge a workers’ compensation claim, WorkCover aims to make a decision on accepting your claim within 20 business days, or less.
When WorkCover denies a no-fault claim, they will send you a letter called a “Reasons for Decision” explaining why. You only have 3 months to apply to have this decision reviewed. If you miss that 3-month time limit, you will not be able to get back on statutory benefits, nor would you be able to make a common law (fault-based) claim.
You can appeal the decision of WorkCover by applying to the Workers’ Compensation Regulator.
Because of the intricacies involved with the appeals process, we recommend that you obtain legal assistance as early as possible. WorkCover is supported by their lawyers and internal legal personnel, so you are going up against it if you do not have legal representation of your own. The best approach is to have a qualified personal injuries lawyer fight your case for you.
Denying a Common Law Claim:
If WorkCover denies liability for your common law (negligence) claim, that does not mean that you will not win your claim or obtain a suitable out-of-court settlement.
A decision by WorkCover that your common law claim, or fault-based claim, is denied, is not final. WorkCover will still have to attend a compulsory settlement conference to try and resolve the matter, including issues of liability.
In many cases, WorkCover will deny liability all the way along your claim, only to make reasonable offers of settlement at a settlement conference.
In the rare cases that WorkCover denies liability for a legitimate common law claim for the entire way through your claim, then you can progress your claim to court to be determined by a Judge. If there was negligence, the court will award you the compensation that you deserve. Generally speaking, the vast majority of legitimate claims resolve at out-of-court settlement conferences rather than at trial.
How is the value of a workers’ compensation claim determined?
The value of a workers’ compensation claim is usually determined by reference to independent medical reports provided by qualified medico-legal assessors. These assessors read the medical documentation, examine the injured worker, and provide a report so that the parties can assess how the injured worker has and will be affected by their injuries. Only then can the parties start to accurately assess how much the claimant’s claim may be worth.
The value of a workers’ compensation claim primarily depends on medical evidence, financial documentation, and various personal characteristics (e.g. your age, pre-accident income and employment history, how many working years you have left, the severity and permanency of your injuries, etc.).
Generally speaking, a successful WorkCover claim will include an amount for general damages (pain and suffering), past and future treatment costs, past and future income loss, paid care costs, and return to work assistance. The largest part of most WorkCover claims is income loss – particularly anticipated income loss in the future. If your injuries prevent or restrict your ability to work, you will be compensated for the income loss that you have and will incur as a result.
How long does a WorkCover claim take?
The length of a common law (negligence) claim depends primarily on how long it takes the worker’s injuries to medically stabilize (meaning that they are not going to get too much better or worse from that point). This can take anywhere from a few months to several years, depending on the severity of the injuries and whether surgeries are required along the course of the claim. For most people, it takes 9-12 months following injury or any serious surgery.
Once your injuries are considered medically stable, it usually takes 6-9 months to reach a compulsory settlement conference between the parties. If the matter is unable to be resolved at the first compulsory settlement conference, there is usually another settlement conference called a mediation scheduled 6-9 months later. If the mediation fails, the matter can proceed to trial 6-12 months later.
The vast majority of workers’ compensation claims settle at the first or second conference (rather than proceeding to court). Claims rarely continue to trial. More claims resolve at the first conference stage rather than the second.
Important reminder to injured workers
- If you don’t look after your injuries, health, and future financial security, no one else will;
- It is not your employer that pays for your statutory benefits or common law compensation – the insurer pays;
- The purpose of the mandatory workers’ compensation scheme is to make sure that injured workers in Queensland have access to the medical treatment, weekly income payments, and compensation they need to get by. Employers pay workers’ compensation premiums for a reason – accidents happen at all workplaces, and you deserve to be covered;
- To assist with the process, get in touch with an expert workers’ compensation lawyer as soon as possible.
Possible TPD Claim on your Superannuation
You may be eligible to make a claim on your Total and Permanent Disability (TPD) cover under your superannuation, or separate insurance policies. It is important that you explore your cover and discuss this with your lawyer. This could provide an additional lump sum payment that will help you and your family through this stressful process.
Why choose an Accredited Specialist in Personal Injury Law to help you with your claim
There are many personal injury lawyers across Queensland, and it is difficult to know who you can trust to have the technical knowledge, expertise and resources to provide you with the best outcome for your claim.
In Queensland, only 3.85% of lawyers have been accredited by the Queensland Law Society as an Accredited Specialist in their area of law.
To be accredited by the Queensland Law Society, a lawyer must have adequate time and experience behind them and be recognised and recommended by their peers as an expert in the field of law. The lawyer must then go through a grueling series of examinations, assignments, and interviews to prove their expertise in their specialised area of law. The Accreditation course has a very high failure rate. Those who successfully complete the course are identified as an expert in their field and accredited by the Law Society as such. The Specialist Accreditation helps people in the community identify which lawyers can be trusted as the industry-leading experts.
As a Queensland Law Society Accredited Specialist in Personal Injury Law, Jeremy Roche has spent his entire career helping people of the Gold Coast, Brisbane, Northern NSW and all across Queensland, make injury compensation claims. He is passionate about helping people whose lives have been destroyed by injuries to get the treatment and compensation they need to help them (and their families!) on their road to recovery.
How can Attwood Marshall Lawyers help you?
We understand that following a serious work injury, your life can be turned upside down. We want to help you and your family get the support and treatment you need to recover as quickly as possible.
The priority is to make sure your treatment is taken care of and your financial security looked after. We can take some of that stress out of the equation for you so that you can concentrate on getting better. All you need to do is contact us and we will take care of everything.
Attwood Marshall Lawyers practices in all types of compensation claims, including WorkCover claims, motor vehicle accidents, public liability claims, TPD and superannuation claims, and historical sexual abuse claims.
Established over 75 years ago, Attwood Marshall Lawyers has truly stood the test of time as an industry-leading compensation law firm. Unlike small firms that usually provide a “jack of all trades” type service, or large firms that often neglect personal client service, Attwood Marshall Lawyers offers the best of both worlds – combining large firm expertise and resources, with small firm attention to client relationships and service.
Our intent is to help people and change their lives for the better. Empathy, support and client service are of paramount importance to us. We are proud to support our local community.
If you have been injured at work, you may be able to make a claim for compensation. Attwood Marshall Lawyers can help you every step of the way. Contact Compensation Law Department Manager, Kelli Costin, on 5506 8220, mobile 0432 497 383 or email firstname.lastname@example.org to organise a free and confidential initial appointment. You can visit our experienced team at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney or Melbourne.
Read more of our Compensation Law articles:
Read more: Contributory Negligence: What if my Employer or WorkCover blames me if I’m injured at work?
Read more: Proving what you cannot see. Workers’ Compensation and PTSD
Read more: WorkCover death benefits and Common Law Negligence Claims – the legal options for bereaved families
Read more: What is a TPD benefit?