Attwood Marshall Lawyers Compensation Law Partner and Qld Law Society Accredited Specialist in Personal Injury Law, Jeremy Roche talks about this hot topic and provides advice to injured workers and WorkCover Claims.
If you have been injured at work or whilst travelling to or from work in the past few years, the laws that apply to these claims have changed quite dramatically in recent times. We will cover the changes below and the relevant dates to be wary of. The most important thing in any claim with QLD WorkCover is not to sign off on any offers they make to you without first getting some decent legal advice on your rights and the consequences of accepting an offer from WorkCover. The majority of injuries suffered by workers are assessed by WorkCover doctors as being minimal percentage impairments which means if you accept their percentage and lump sum offer, you are effectively abandoning your rights to bring a common law claim for damages. Many serious injuries are wrongly assessed by WorkCover doctors and it is only corrected when lawyers become involved and the true medical position is established. That old adage ‘Don’t sign anything until you see us’ is absolutely true in these claims…
The 5% impairment threshold for claims after 13 January 2013
In 2013, the previous QLD Government introduced a number of unnecessary changes to the QLD workers compensation scheme to the considerable detriment of injured workers across Queensland.
Those changes included an unwarranted restriction upon injured workers in claiming compensatory damages for injuries sustained at work through negligence. The changes required all injured workers to have at least 6% impairment to be able to claim for their injuries and losses. The excessive impairment threshold was estimated as being likely to prohibit over 50% of all future workers compensation claims from ever being made – affecting thousands of Queenslanders across the State.
The widely-protested changes were unnecessary in circumstances where employer premiums were already the second lowest in the country and the scheme had superfluous funds to satisfy the estimated number of claims. In fact, the QLD Workers Compensation scheme had long been touted as the best in Australia, providing a strong and maintainable equilibrium between the competing interests of workers, employers, and WorkCover Queensland. Fortunately, the current government has taken steps to restore the Scheme to its previous configuration and to support injured workers and their families.
The 5% impairment threshold repealed from 31 January 2015
On 17 September 2015, QLD Parliament passed the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015. In doing so, the government followed through on its pre-election commitments of Restoring the Rights of Queenslanders Injured at Work by rolling back the changes introduced by the previous government in 2013.
The legislation largely reverses the effects of the damaging 2013 changes, achieving the following objectives:
- The legislation removes the previous government’s unnecessary and prohibitive restriction on a worker’s entitlement to seek common law damages without a degree of permanent impairment of 6% or more;
- The legislation removes the mandate that prospective employers are legally entitled to obtain a copy of any prospective employee’s workers compensation claims history prior to engaging the employee’s service;
- Firefighters (including volunteers) that are diagnosed with one of 12 specified diseases/cancer (and meet a qualifying period of active firefighting service) will automatically have their claims accepted and will be entitled to seek common law damages;
- The legislation allows injured workers who were affected by the 5% impairment threshold (between 15 October 2013 and 31 January 2015) to obtain some additional compensation.
Restoring this scheme to its proper configuration is welcome news to workers across Queensland. Importantly, these changes have been made without any increase in employer premiums. Further, WorkCover Queensland is expected to maintain a level of solvency that is higher than the solvency levels required by any other Australian workers compensation scheme.
Following these restorative amendments, Queensland will once again have the best workers compensation scheme in Australia for injured workers and their families.
Case Example
Attwood Marshall recently acted for an injured worker who sustained a complex and debilitating knee injury at work through the gross negligence of his employer in November 2013.
At the age of 48, our client was informed by his doctors that he required surgery, and could never again work in the field of concreting or similar physical employment. Our client had no other skills or qualifications and was the sole provider for a family of five. Shortly thereafter, he fell behind on mortgage repayments, lost his house, pulled his children out of school, and suffered a psychological injury as a result of his considerable financial hardship.
When WorkCover had him assessed for impairment (to ascertain whether he was over the 5% threshold to claim), he was initially assessed at 2% impairment, which prevented his claim. Following an appeal by Attwood Marshall Lawyers, he was later assessed at 4% impairment and still unable to claim.
Following a final appeal, he was assessed at 6% impairment – which (fortunately) allowed him to make a common law claim. If he had not been successful, all common law rights would have been lost and – like many other injured workers affected by the 2013 legislation – he would have been unable to claim.
After breaching the 5% impairment threshold (just), Attwood Marshall ran his common law damages claim which ultimately resolved for upwards of $600,000. These damages – which comprise monies for things like income loss, medical treatments costs, and out of pocket expenses – would not have otherwise been able to our client, despite him suffering enormous losses as a result of his employer’s gross negligence.
Clearly the 5% threshold was unfair and we welcome the recent legislative amendments to restore the Queensland Workers Compensation scheme to its former configuration.
Conclusion
This is an incredibly difficult area of complex laws and thresholds. Workers who have genuine ongoing disabilities caused by legitimate injuries suffered at work are often treated like criminals by Workcover and their ‘stable’ of doctors. They are poorly treated by the claims officers, who seem to make it their business to make the claims process as difficult as possible. We can help you with this process and make sure you receive your full entitlement to compensation. Many clients have accepted the offer made by Workcover simply to put an end to the stress and ongoing uncertainty. This can have a devastating impact on you and your family if you cannot continue with your usual occupation because of your injuries. We offer a free initial appointment and assessment of your case and take on most cases on a ‘no win no fee’ basis. However, you must get advice BEFORE you sign and accept the offer from WorkCover.
Don’t accept the offer they send you and get advice from us first!
If you require any further information about WorkCover Claims, please do not hesitate to contact Department Manager Kelli Costin on direct line 07 5506 8220, freecall 1800 621 071 or email kcostin@attwoodmarshall.com.au for a free initial consultation and discuss our ‘no win no fee’ service. We have a dedicated team of lawyers who specialise in this area of law and practice exclusively in compensation claims.
