This is an especially important article for enquiries we receive from workers in Brisbane, Mackay and Townsville. We hope that this information helps clarify some of the questions that we receive on a regular basis from these clients.
Please keep these tips in mind when you have suffered a work injury and are considering a workers compensation claim. If you have any questions, please make sure to contact a personal injury lawyer with an accredited specialist designation in personal injury.
Remember the Deadlines
In Queensland, you only have 6 months from the date of injury to lodge an Application for Compensation or Claim Form with WorkCover Queensland, in order to be entitled to receive statutory workers’ compensation benefits (i.e. weekly compensation, medical expenses paid for and a lump sum for any permanent impairment).
For injuries that have occurred over a period of time, the time limit in that regard is 6 months from the date the worker first visited a doctor.
You can still lodge a claim if you are still working
A workers’ compensation claim can also be lodged if you are still working. You simply don’t receive weekly benefits (for lost income / wages), but you can get medical expenses paid for and receive a lump sum for any permanent impairment you end up having.
You can still lodge a claim even after you leave the job
A workers’ compensation claim can still be lodged even after leaving the job that caused the injury, but the worker / claimant may well have difficulty proving that the injury they are complaining of was caused by the work they were doing, given the temporal delay between when they were doing those duties and when they first reported any symptoms / injury.
This particular worker would face the difficulty of convincing the workers’ compensation insurer that his symptoms have not simply arisen as a result of pre-existing degeneration of the spine that everyone gets as they get older.
A Quick Briefing on Common Law Damages
It is possible for someone to make a claim for common law damages (where you sue your employer for negligence) even if they have not made a workers’ compensation claim, provided they do so within three (3) years from the date of injury. This would be called a common law only claim.
Limitation Period for a Common Law Claim
In cases where someone is injured over a period of time, you have to try and lodge the claim within three (3) years from when they first commenced those duties.
If some of that period was more than three (3) years ago, then they will technically be outside the three year time limit for lodging a personal injury claim. In that case, the claimant would need to rely on section 31 of the Limitations of Actions Act 1974 (Qld) which provides for an extension of the time limit for bringing a claim in relation to any out of time period (ie anything more than 3 years ago).
That section essentially gives a claimant a further 12 months from the date that they learn of a material fact of a decisive character to lodge a claim. A material fact of a decisive character is something that would normally indicate to a reasonable injured person that they need to seek legal advice regarding their options in terms of whether they should sue for compensation.
For instance, if an injury finally gets to the point where it is impacting on your work capacity (eg you can no longer do your normal job because of the injury), then that would probably be considered a material fact of a decisive character.
Why Do We Advise This?
A number of clients have been asking us similar questions. However, in particular, there was one client who was working in a heavy labor job operating heavy machinery. He recently transitioned into an office job. His years working in heavy labor have progressively led to neck and back problems and he asked us what his legal options were.
Of course, in this case the claimant has a number of difficulties, including proving that his injury is work related and is not due to natural degeneration and proving that there was any negligence on the part of his employer. Injuries suffered operating machinery does not normally attract a finding of negligence on the part of the employer, unless the machine was defective or faulty.
How does this apply to you?
The facts of your situation may drastically change how the laws apply to you. It is very important that you speak to an accredited specialist in personal injury who operates within your area to get a good understanding of your legal rights in workers compensation and under the laws of negligence.
The client we mentioned above represents a good number of people with circumstances where their factory or construction jobs cause continuing pain and debilitation later on in their lives. However, whether or not they have a legal right to compensation is a consideration that relies heavily on their personal circumstances.
Do not adversely affect your legal rights by failing to receive the proper legal advice on whether or not you should pursue a compensation claim. Some of the difficulties that may arise include:
- If you try to pursue the claim yourself, you may accidentally make errors that can seriously affect your success in court or in future settlement negotiations;
- If you rely on a lawyer who does not focus on personal injury and gives you improper advice, you may risk a delay in your claim or at worst, a serious effect on the outcome of your compensation claim; or
- If you wait too long to receive proper advice, you may risk missing your limitation period and your legal right to sue.
Workers Compensation does not have to be an impossible task. Give us a call or fill out our case review form if you have any questions.