Have you suffered an injury at work? Has one of your employees been injured? Perhaps you know that WorkCover Queensland usually gets involved but you’re not quite sure how the process works? We know that workers’ compensation claims can be daunting, so we have prepared this article to give you an overview of the claims process.
How does the workers’ compensation system operate?
Under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) employers are required to insure workers against work related injuries or illness in Queensland.
When there has been an injury, a worker is able to lodge a statutory claim. In most cases, the relevant insurer will be WorkCover Queensland, although some larger employers are authorised to be self-insurers for the purposes of the workers’ compensation scheme. For the purposes of this article, we will assume that WorkCover Queensland is the relevant insurer.
What’s the difference between a statutory claim and a common law claim?
A statutory claim is occurs when a worker is compensated for a work-related injury with payments and benefits prescribed by legislation. This is a ‘no fault’ claim, meaning that a worker has the right to apply for benefits, irrespective of who was at fault for causing their injury. A worker can receive compensation for lost wages, travel, medical and rehabilitation expenses.
A common law claim is made after the conclusion of the statutory claim and involves an injured worker suing their employer for negligence. Compensation in these claims is generally higher as a worker is entitled to damages for pain and suffering, economic loss and future expenses.
Lodging a statutory claim
If a worker is injured at work, they may be able to lodge a statutory claim for workers’ compensation – provided the injury is work related. Work related injuries can include physical injuries, psychological or psychiatric injuries, diseases and death.
Acceptance of the claim
After a claim is lodged, WorkCover Queensland needs to determine whether to accept the claim. This requires a determination as to whether the:-
- claim was commenced within the correct time;
- person was a ’worker’ at the time;
- incident was work related; and
- work was a significant contributing factor to the injury.
Treatment, assistance, and return to work
During this phase, WorkCover will attempt to ensure the worker receives appropriate medical treatment and appropriate assistance with returning to work. If the worker requires suitable duties, and the employer cannot accommodate these duties, a host employer may be arranged in order facilitate the return to work.
Notice of Assessment
After a worker’s injuries are determined to be ‘stable and stationary’, according to medical experts, an independent examination is arranged to assess the degree of permanent impairment. Following this assessment, a Notice of Assessment is issued. Depending on the degree of permanent impairment, a lump sum offer may be made by WorkCover Queensland. This offer can either be accepted, rejected or deferred to make a decision later.
In what circumstances can a worker make a common law claim?
If the degree of permanent impairment is less than 20% and a lump sum offer is accepted, the statutory claim will be finalised and no further claims can be made. If the worker chooses not to accept the lump sum offer, a common law claim can be commenced.
If the degree of permanent impairment is more than 20%, a worker can accept the lump sum offer and still make a common law claim for damages.
What’s involved in making a common law claim?
Notice of Claim for Damages
A common law claim is commenced by serving a Notice of Claim for Damages on the employer and WorkCover Queensland. It is up to the worker to establish that the employer failed to provide a safe place or system of work and that the employer breached its duty of care. A worker must prove not only that the employer failed to provide a safe work environment but also that this failure caused the injury sustained.
The Notice of Claim for Damages outlines the allegations of negligence against the employer as well as the claim for pain and suffering, loss of income and other expenses incurred as a result of the injury (known as damages).
Appointment of a Panel Lawyer
Once a Notice of Claim for Damages is received, WorkCover Queensland will appoint one of its panel lawyers to respond to the claim on behalf of the employer and WorkCover. This lawyer will be in regular contact with the employer, WorkCover Queensland and the worker’s lawyers to ensure that the claim progresses as quickly as possible and that all appropriate investigations are undertaken.
These investigations may include a site inspection and obtaining statements to understand the system of work involved and how the injury occurred. Investigations will also include arranging specialist medical examinations to assess the injury, the level of impairment, how the injury affects the worker presently and the anticipated impact the injury will have on the worker’s life into the future.
After investigations are undertaken, WorkCover’s panel lawyer will make a liability decision and issue a formal liability response to the worker’s lawyers. This decision must be made within six months after receiving a complying Notice of Claim for Damages.
After the liability response is issued, and within the next three months, a compulsory conference is convened. This is meeting with the worker (and their lawyers), WorkCover’s panel lawyers, the employer and any other party which may be involved to discuss the claim, determine whether the employer breached its duty of care, whether the worker contributed to the incident in any way, and the amount of damages the worker might be entitled to.
Generally, a resolution can be achieved during this compulsory conference. However, sometimes an agreement cannot be reached. When this occurs, all parties make a final written offer, which is left open for 14 days. If a final written offer is not accepted, court proceedings will be commenced, with the final stage being a trial in a court. However, before that occurs, there are generally further attempts to resolve the matter, normally by way of a mediation, with an independent mediator appointed to assist the parties in reaching a resolution.
Workers’ compensation claims can be complex and daunting, not only for an injured worker but also for an employer. It’s also important to remember that there are certain timeframes for lodging both a statutory claim and a common law claim. Should you have any queries about this information, please speak to a personal injuries lawyer. If you are an employer and have some concerns, please contact our office.
This article is correct at the time of publication and was prepared by Jennifer Kratzmann, Senior Associate with collaboration from Carla Adams, Senior Associate and Emily Kelly, Solicitor, who are based in our Toowoomba office.