The Ultimate Guide to WorkCover Claims in Queensland

Individuals who sustain injuries while working in Queensland have the option to make a WorkCover claim. Despite this, the process of making a claim may prove daunting and convoluted.

Ascent Lawyers offers a comprehensive guide to assist individuals through the entirety of the claim-making process for WorkCover claims in Queensland. The guide covers everything from defining what a WorkCover claim is and who may be eligible, to providing instructions on initiating the claim process, and outlining what benefits those eligible may receive.

0. What is WorkCover? 

WorkCover can be interpreted as a form of insurance for workers who are injured at work. It is designed to protect employees and employers alike by providing financial support for injured workers while also ensuring that employers are not financially burdened by workplace injuries.

All employers are required by law to take out a WorkCover policy to cover their employees in the event of a workplace injury or illness.

Generally speaking, for most claims there are two stages, the first stage is the Statutory Claim, and the second stage is the Common law Claim.

1. The Statutory Claim

In Queensland, the statutory claim process is designed to be simple and straightforward, with the aim of providing injured workers with prompt access to medical treatment and other support services.

1.1 How to make a WorkCover claim

Step 1: Report the injury to the employer

• The injured worker should report the injury to their employer as soon as possible.
• It is recommended that the injured worker reports their injury to the employer in writing.

Step 2: Completing a work capacity certificate

• The injured worker must submit a work capacity certificate.
• This certificate can be completed by their treating GP.
• In some circumstances, if the injured worker was taken to a hospital as a result of a work injury, the hospital can also complete a Work capacity certificate on their behalf to help initiate the claim process.

Step 3: Lodge the claim

There are multiple ways in which the injured worker can lodge a claim:

1. Online claim: The fastest and easiest method is for the injured worker to complete and submit an online claim.
2. Phone: The injured worker can call 1300 362 128 and talk to a member of the WorkCover team.
3. Claim form: The injured worker can complete a claim form and either upload it using the WorkCover online service, fax it to 1300 651 387, or post the completed form to GPO Box 2459, Brisbane Qld 4001.

It is important to note that these options might vary if the injured worker’s employer is self-insured.

If the injured worker requires professional guidance and support throughout the WorkCover claim process, it is highly recommended to reach out to Ascent Lawyers. With their expertise in handling workers’ compensation cases, Ascent Lawyers can provide the injured worker with the necessary legal assistance to ensure their rights are protected.

1.2 Who can make a claim?

In Queensland, most workers are covered by the WorkCover system, including:

• Employees (full-time, part-time, and casual)
• Apprentices
• Unpaid interns
• Contractors and subcontractors (in some cases)

The Workers’ Compensation and Rehabilitation Act 2003 defines a worker as an individual, who works under a contract, and is an employee for the purpose of assessment for PAYG withholding.

This definition of worker can often include sole traders or contractors. There are many factors to consider.

To determine eligibility as a worker and entitlement to compensation, Ascent Lawyers invites individuals to take the Worker Determination Test. The experienced team at Ascent Lawyers will carefully review their circumstances and assess their eligibility for a claim.

If any injured worker’s employer prevents the worker from making a claim, the injured worker can make the claim no matter what attitude the employer hold! Ascent Lawyers can help injured workers with Standing Up for Your Rights: Pursuing Workers Compensation Despite Employer Resistance.

1.3 When to make a statutory claim?

As outlined in section 131 of the Workers’ Compensation and Rehabilitation Act of 2003 (Qld), WorkCover claims must be lodged within six months of the injury occurring.

However, there are a few exceptional cases where this time limit may be extended, such as making an error or having specific medical conditions that are determined by a Medical Assessment Tribunal.

Therefore, it is crucial that injured workers avoid any delays in submitting their claim to avoid the risk of forfeiting their right to make a claim.

With the strict time limits in place for submitting a WorkCover claim, it is important for injured workers to seek legal advice as soon as possible to avoid the risk of losing their right to make a claim. Contact Ascent Lawyers today to schedule a consultation and get the legal assistance you need to navigate the workers’ compensation system.

1.4 How is a claim decided?

In order to determine whether a claim is valid, WorkCover assesses a number of criteria laid out in the Workers Compensation and Rehabilitation Act 2003. These criteria include factors such as

• whether the claim was made within the appropriate timeframe;
• whether the person making the claim was employed by the relevant employer at the time of the injury; and
• whether the injury was caused by a work-related incident.

However, each claim is unique, and additional criteria may be applied depending on the circumstances of the injury. For example, claims involving psychological or psychiatric injuries, industrial deafness, or latent onset illnesses may require more information to be assessed.

1.5 How long does it take Workcover make a decision?

WorkCover aims to make a decision on claims within 20 business days of lodgement, although this may take longer in cases where additional information is required. In such cases, the claimant will be notified and given reasons for any delay.

1.6 If the claim is denied

If WorkCover rejects a claim, WorkCover will provide written reasons. Injured workers can ask for a review of the decision by the Workers Compensation Regulator. Additionally, workers can provide feedback to WorkCover if they have concerns about the claim’s management.

For injured workers facing the disheartening situation of a denied claim, finding the right guidance and support is crucial. Ascent Lawyers stands ready to offer the expertise needed to navigate this complex process.

1.7 If the claim is accepted

1.7.1 What WorkCover Covers

Once WorkCover completes the assessment process and have decided to accept the claim, eligible injured workers can take comfort in the assurance that a wide range of payments and steadfast support is readily available to them. Workcover will be able to provide the following support:

• Lost Wages (Weekly Compensation)
• Medical and Rehabilitation Costs
• Travel Expenses
• Permanent Impairment Lump Sum
• Death Benefits and Funeral Costs

In addition to financial support, WorkCover may be able to provide additional support to help the injured worker get back to work. The following programs are available:

• Return to Work Program
• Employment Connect Program

1.7.2 What WorkCover Does Not Cover

While WorkCover provides a range of support, there are some things that are not covered. These include:

• Damage to Clothing or Jewellery
• Damage to Cars
• Unapproved Hospital Costs

Ascent Lawyers diligently advocate for injured workers, ensuring they receive the compensation they deserve to cover lost wages and essential expenses. Let us navigate the legal complexities, address payment delays, disputes, and insufficient adjustments on your behalf. Take the next step towards securing your financial well-being and a smoother recovery. Contact Ascent Lawyers today and let us fight for your rightful weekly compensation.

1.8 Notice of Assessment / Lump sum payment

1.8.1 Requesting an Independent Medical Examination

According to Section 178 of the Workers Compensation and Rehabilitation Act 2003, workers with accepted compensation claims have the right to request an independent medical assessment by WorkCover.

It is important to note that if the assessment request is not made within three years of the injury event, the injured worker may lose the opportunity to pursue a higher compensation claim through common law (this is when the claimed amount is much higher)!

Take a look at this article: Why You Must Secure Your WorkCover Claim with a ‘Notice of Assessment’ !

1.8.2 Degree of Permanent Impairment

WorkCover QLD will only offer the injured worker a lump sum payment, if the injured worker has suffered a permanent impairment. In practical terms, this means that for every 1% of DPI, an injured worker is entitled to receive $3,612.73. (1% * $361,273.10 = $3,612.73)

We have prepared a table for you to review, so you can easily understand the lump sum payment.

Some people may be disappointed with the determined degree of permanent impairment, which can sometimes be 0%. This means that the accompanying letter will confirm that they are not eligible for a lump sum offer of compensation.

Regardless of the degree of permanent impairment (DPI) indicated in the Notice of Assessment, Ascent Lawyers recommend to never accept the offer until legal advice has been sought.

1.8.3 What are the options?

In cases where the injured worker’s Degree of Permanent Impairment (DPI) is less than 20%, they must make an irrevocable choice:

• accepting a lump sum payment offered by WorkCover and finalising their claim, OR
• making a common law claim.

If the injured worker’s DPI is higher than 20%, they may accept the lump sum offer AND pursue a common law claim, which typically involves a much higher compensation amount.

WorkCover Qld will provide the injured worker with a lump sum offer via a Notice of Assessment. From the time of receipt of this document, the injured worker has 20 business days to respond and make their decision. If they do not respond, the offer will be automatically deferred.

For any injured workers, who are unsure what to do, Ascent Lawyers are dedicated to helping injured workers navigate through these choices and achieve the best possible outcome.

2. The Common Law Claim

2.1 Making a common law claim

It is important to note that not everyone is eligible to make a common law claim. This type of claim is only possible if:

• an employer is found to have breached their duty of care, and;
• an employee has sustained an injury that has caused them loss as a result of that breach.

A common law claim may offer a larger compensation amount compared to that of a lump sum payment. This is due to the fact that the compensation amount will be based on several factors, which may include:

• Pain and suffering – Compensation for the injury sustained, primarily depending on the type and severity of the injury.
• Past loss of income – Loss of income incurred as a result of the injury sustained and subsequent recovery period.
• Future loss of income – The income that the employee is likely to miss out on between the date the common law claim is resolved and retirement.
• Past and Future out of pocket expenses – Covers past and future medical, hospital, rehabilitation, medication, and travel expenses.

2.2 Legal Representation

WorkCover related legislation and procedure can be complex and difficult to navigate without legal expertise. Ascent Lawyers’ personal injury lawyers can support in numerous ways, including:

1. Assessing the claim

Ascent Lawyers provides a free initial consultation to assess the claim’s merits and types of compensation that may be available to the individual, without incurring any upfront legal fees.

2. Providing an understanding of the process

The personal injury claims process can be both bewildering and intimidating. Ascent Lawyers can explain the process in plain language and provide insight into what to expect at every step.

3. Gathering evidence to support the claim

Ascent Lawyers is equipped with the necessary expertise and resources to gather evidence in support of the claim, including accessing medical records, obtaining independent medical reports, and speaking to witnesses.

4. Negotiating with the other party

The Ascent Lawyers team has significant negotiation experience and can negotiate on behalf of the individual to obtain the maximum amount of compensation they deserve.

5. No Win No Fee

Ascent Lawyers offer a No Win No Fee agreement, which ensures that the client only pays legal fees if they receive compensation. This arrangement guarantees equitable access to justice without the concern of monetary costs.

2.3 Who is at fault / Employer Negligence

To establish negligence, there are 4 essential elements that must be proven. Understanding these elements can help injured workers determine whether they have a valid common law claim and what steps they need to take to prove their case.

2.3.1 What is Negligence?

• Negligence refers to the failure of a person or entity to take reasonable care, resulting in harm to others.
• It involves not acting as a reasonable person would in similar circumstances.

2.3.2 Elements of Negligence

1. Duty of Care
   • Employers owe a duty of care to provide a safe work environment.
   • Employers need to take reasonable steps to ensure the safety of employees wherever they are asked to work, whether it’s the main workplace or another location.
2. Breach of Duty
   • Occurs when employers fail to meet their duty of care.
   • The court assesses whether the employers’ conduct falls below the standard expected of a reasonable person.
   • Examples include a lack of safety equipment or training.
3. Causation
   • Even if it can be established that an employer breached their duty of care to the injured worker, it is necessary to establish that breach of duty caused the injury.
4. Damages
   • Refers to the harm or loss suffered by the injured work due to the breach of duty.
   • Includes physical injuries, emotional trauma, lost income, and medical expenses.

2.3.3 Defenses to Negligence

1. Contributory Negligence
   • When the injured person’s actions contributed to their injuries, compensation may be reduced accordingly.
2. Assumption of Risk
   • When the injured person voluntarily accepted the risk of harm, such as engaging in a dangerous activity.

Ascent Lawyers is here to guide you through the process and provide the advice you need. Our experienced team recognizes that every case is unique, and the outcome hinges on the individual facts and circumstances. By consulting with us, you can gain a clear understanding of negligence and how it relates to your situation. With our assistance, you can determine the viability of your legal claim and take the necessary steps to establish a strong case. Contact Ascent Lawyers today for expert advice and support in your WorkCover claim.

2.4 Settlement / Compulsory Conference

It might be surprising to learn that only about 1% of all personal injury claims in Queensland end up in court. The 99% of claims are resolved through negotiation between the parties and their lawyers, rather than through court proceedings.

The injured worker and WorkCover or self-insurer have a duty to negotiate and settle the claim in a speedy and fair manner. Both parties also have a duty to disclose relevant documents and material. Once both parties have received all relevant documents, they must then proceed to arrange a compulsory conference to settle the claim.

The compulsory conference is a meeting between all the parties involved in the claim. It is an important step in the process of resolving a personal injury claim and gives the parties an opportunity to discuss their respective positions.

There are only 2 possible outcomes of a compulsory conference:

1. If the parties can reach an agreement on the compensation amount, then the claim will be settled. The amount will be kept confidential.
2. If both parties are not able to reach an agreement, then they must exchange an offer in written form. This is called a mandatory final offer.

A mandatory final offer is basically an offer to settle the claim before going to court. The mandatory final offer will be valid for 14 days and cannot be withdrawn.

When it comes to settlement or compulsory conferences, relying on Ascent Lawyers can be a game-changer. Our expertise in this area allows us to provide invaluable advice and guidance throughout the process. We understand the complexities involved in settlement and compulsory conferences, and our team of professionals will be by your side, providing clear directions and support every step of the way.

2.5 Common Law Claims: case study

Significant Compensation Difference in Workplace Injury Case:

• Frank Mills sustained a workplace injury and received a DPI rating of 12%.
• He was offered a lump sum payment of $36,886.20 but pursued a common law claim.
• Frank received a significantly higher compensation of $1,013,131.89 through the common law claim.

Contributory Negligence and Breach of Duty in Left Shoulder Injury Case – Civilikas v Sunshine Coast Hospital and Health Service [2023] QSC 36:

• The defendant was found responsible for breaching their duty, while the plaintiff was deemed 25% contributory negligent.
• The plaintiff was awarded $196,193.33 in damages (excluding the WorkCover refund)

Breach of Duty of Care in Concrete Delivery Driver Case – Reddock v ST&T Pty Ltd & Anor [2022] QSC 293:

• The plaintiff suffered injuries due to the defendants’ negligence.
• Both defendants were held liable, with each directed to pay 50% of the respective judgment sums.
• The employer was ordered to pay $633,253.53, and Boral was liable for $727,133.81.

Employer Liable for Ankle Injury – Nkamba v Queensland Childcare Services Pty Ltd [2022] QDC 292:

• The employer was held liable for breaching its duty, leading to the plaintiff’s ankle injury.
• The damages awarded amounted to $197,013.98

Employer Liable for Lumbar Spine Injury – Norsgaard v Aldi Stores (A Limited Partnership) [2022] QDC 260:

• Aldi Stores was found liable for the plaintiff’s lumbar spine injury.
• The court highlighted inadequate training, instructions, and supervision as breaches of duty.
• The damages awarded were $162,390.97 (including the WorkCover refund).

Liability and Damages – Longbottom v L & R Collins Pty Ltd [2021] QSC 242:

• Longbottom sustained injuries during a workplace accident.
• The court found the plaintiff partly responsible for his injury (10% contributory negligence).
• The awarded damages amounted to $482,696.99

3. For Employees

3.1 Entitlements to WorkCover

With the relevant Queensland regulations, employers must provide accident insurance to workers within 5 days of employing them. If there is no accident insurance policy in place, there may be significant fines and penalties to the employers.

Even if employers did not provide WorkCover insurance to employees, WorkCover insurance will still cover medical costs and lost wages as well as payouts from possible common law claims for injured workers.

3.2 Working while on WorkCover

An injured worker can work while on WorkCover, as the system encourages them to return to work as soon as possible for both physical and mental recovery. However, injured workers must be careful of the following:

Increased risk of reinjury

• If the injured worker returns to work too soon or work beyond their capacity, there is a serious risk of reinjury
• injured worker must follow their doctor’s advice and not exceeding their physical capacity

Suitable duties

• The employer may also offer the injured worker suitable duties or even a different job that is within the injured worker’s capacity.
• The suitable duties must align with the injured worker’s physical limitations

Losing WorkCover benefits:

• Working while on WorkCover does not result in the injured worker losing their benefits.
• However, exceeding their pre-injury earnings may lead to reduced or discontinued WorkCover payments

3.3 Resigning while on Workcover

The injured worker may consider the option of resigning from their job while on WorkCover. However, it is crucial to recognize that such a decision can have implications for the worker’s entitlements under the WorkCover scheme.

If the worker resigns for reasons “unrelated to their incapacity,” their weekly payments may be terminated.

Nevertheless, it is important to note that even if the worker chooses to resign, they still retain certain entitlements, such as coverage for medical expenses or the ability to pursue a lump sum offer based on a permanent impairment.

In order to make an informed decision regarding resignation, it is highly recommended that the injured worker seeks guidance from our personal injury lawyers at Ascent Lawyers.

3.4 Protection from Termination / Dismissal

The Workers’ Compensation and Rehabilitation Act 2003 (the WCRA Act) provides important protections for workers who have been injured on the job.

The WCRA Act prohibits employers from terminating an injured worker’s employment within 12 months of the injury or illness, solely because the worker is unable to perform their usual job duties due to work-related injury.

3.5 Reopening Closed Claims

An injured worker has the right to reopen his or her WorkCover claim, if the current symptoms are linked to the original injury. However, this process requires medical evidence connecting the need for treatment to the original injury.

If WorkCover denies the request for medical expenses under the original claim, a  request for a review can lodged.

3.6 Common Types of Injuries

To have a successful WorkCover claim, the injured worker’s injury must be considered work-related. In other words, the injured worker’s employment must be a “significant contributing factor” to the injury.

This means that the injury or illness must have occurred as a result of the injured worker’s work-related duties or the injuries were sustained while travelling to, from, or for work.

The following are the types of injuries and illnesses that can be considered work-related:

3.6.1 Physical Injuries

• Cuts and lacerations
• Burns and abrasions
• Penetrating wounds
• Broken bones and fractures
• Spinal injuries

3.6.2 Psychological and Psychiatric Injuries

• Depression
• Anxiety
• Post-traumatic stress disorder (PTSD)

3.6.3 Occupational Disease

• Industrial deafness
• Q-fever
• Work-related respiratory diseases such as asbestosis, silicosis, and others.

3.7 Occupation

3.7.1 Industries with the Highest Rates of Work-Related Injuries

For men, the construction industry had the highest rate of work-related injuries, with 17% of workers reporting an injury or illness.

For women, the healthcare and social assistance industry had the highest rate of work-related injuries, with 27% of workers reporting an injury or illness.

3.7.2 Accommodation and Food Services

The accommodation and food services industry had the highest rate of work-related injuries in 2020-21, with 5.6% of workers reporting an injury or illness.

3.7.3 Agriculture, Forestry, and Fishing

The agriculture, forestry, and fishing industry also had a high rate of work-related injuries, with 5.4% of workers reporting an injury or illness.

3.8 Self-insured Employers / Self-insurers

In essence, if the injured worker’s employer is self-insured, this signifies that the injured worker’s own employer bears the responsibility for their workers’ compensation claims.

There are numerous restrictions and legal requirements:

• distinct and separate employer and insurer functions
• makes sure that workers are treated fairly
• comply to Workplace Health and Safety Queensland

3.9 ComCare

Comcare is a national system of occupational health and safety and compensation, established under the Safety, Rehabilitation and Compensation Act (SRC Act).

It serves as the insurer, regulator and scheme manager for Commonwealth employees and certain licensed corporations, including Telstra, Australia Post, NAB and CBA.

In essence, a ComCare claim does share similarities with a WorkCover claim. However, the two claim systems are governed by different legislation and have different restrictions.

4. For Employers

4.1 Covering Workers

According to the relevant Queensland laws, if an employer has failed to insure a worker after 5 days of employment, the employer can be given a fine of 275 penalty units (Please click here to see the current value of the penalty unit).  In 2023, it would equate to $39,531.25.

If a workplace injury does occur, and the employer is not insured, the claim will still be handled by WorkCover. This means that, even if the employers did not properly insure their workers, they still cannot escape their legal obligations to compensate an injured worker.

Under Queensland law, Workcover can then recover from the employers:

• the amount it has paid to the worker for compensation;
• an additional penalty of up to 50% of the amount paid to the worker; and
• the unpaid premium.

4.2 Employer’s Obligations

An employer plays a crucial role in helping injured workers. Here are some of the key responsibilities:

• Reporting Injuries and Initiating Claims: there is a responsibility to report any work-related injuries immediately and help initiate the claims process.
• Paying an excess: employers may need to pay an excess payment, if the worker takes time off from work and their claim is approved.
• Communication: Contacting the worker soon after the injury can establish effective communication channels.

To assist in the injured worker’s recovery, here are some helpful tips:

• Workplace Changes: Employers can work with the injured worker to implement workplace changes that support safe working conditions to prevent any further damage.
• Flexible Working Arrangements: Offering flexible working arrangements can increase the likelihood of workers coming back to work.
• Alternative Job Roles: If the worker is still unable to work, discussing alternative job roles with them is recommended.
• Progress Monitoring: Continual monitoring and tracking of the worker’s progress in their recovery process is crucial.
• Beneficial Changes: Providing beneficial changes to a worker’s work routine as required is also essential.

Employers must follow specific requirements to ensure the safety and well-being of injured workers. Below are some essential duties:

• Treatment: Employers must ensure that their workers are treated with respect and care during their rehabilitation process.
• No termination: No employee should face termination due to work-related injuries within 12 months.

5. Conclusion

In conclusion, navigating the intricate landscape of WorkCover claims in Queensland can be overwhelming for the injured worker and the employees. However, with the invaluable assistance of Ascent Lawyers, the journey becomes more manageable and less intimidating. Our comprehensive guide serves as a reliable resource, equipping claimants with the knowledge and guidance needed to navigate every aspect of the claim-making process