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0. What is WorkCover?1. The Statutory Claim1.1 How to make a WorkCover claim1.2 Who can make a claim?1.3 When to make a statutory claim?1.4 How is a claim decided?1.5 How long does it take Workcover make a decision?1.6 If the claim is denied1.7 If the claim is accepted1.8 Notice of Assessment / Lump sum payment2. The Common Law Claim2.1 Making a common law claim2.2 Legal Representation2.3 Who is at fault / Employer Negligence2.4 Settlement / Compulsory Conference2.5 Common Law Claims: case study3. For Employees3.1 Entitlements to WorkCover3.2 Working while on WorkCover3.3 Resigning while on Workcover3.4 Protection from Termination / Dismissal3.5 Reopening Closed Claims3.6 Common Types of Injuries3.7 Occupation3.8 Self-insured Employers / Self-insurers3.9 ComCare4. For Employers4.1 Covering Workers4.2 Employer’s Obligations5. Conclusion
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.
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.
In cases where the injured worker’s Degree of Permanent Impairment (DPI) is less than 20%, they must make an irrevocable choice:
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:Online claim
The fastest and easiest method is for the injured worker to complete and submit an online claim.Phone
The injured worker can call 1300 362 128 and talk to a member of the WorkCover team.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.
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)
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.
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
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
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.| DPI | Lump Sum Offer | Your Rights |
| 0% | $3,612.73 * 0 = $0 |
|
| 1% | $3,612.73 * 1 = $3,612.73 | Same as above |
| 5% | $3,612.73 * 5 = $18,063.65 | Same as above |
| 10% | $3,612.73 * 10 = $36,127.3 | Same as above |
| 15% | $3,612.73 * 15 = $54,190.95 | Same as above, AND
|
| 20% | $3,612.73 * 20 = $72,254.62 | Same as above, AND
|
| 25% | $3,612.73 * 25 = $90,318.28 | Same as above |
| 29% | $3,612.73 * 29 = $104,769.20 | Same as above |
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.
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.
- 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:- Assessing the claim
- Providing an understanding of the process
- Gathering evidence to support the claim
- Negotiating with the other party
- No Win No Fee
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
- 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.
- 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.
- 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.
- 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
- Contributory Negligence
- When the injured person’s actions contributed to their injuries, compensation may be reduced accordingly.
- Assumption of Risk
- When the injured person voluntarily accepted the risk of harm, such as engaging in a dangerous activity.
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:- If the parties can reach an agreement on the compensation amount, then the claim will be settled. The amount will be kept confidential.
- 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.
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.
- 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)
- 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.
- The employer was held liable for breaching its duty, leading to the plaintiff’s ankle injury.
- The damages awarded amounted to $197,013.98
- 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).
- 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
- 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
- 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.
- 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.
- 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 processDoes this feel familiar? Contact us and we'll explain your options clearly.
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