If you have been injured at your place of work, whilst working or driving to or from work, you may have a right to lodge a claim with WorkCover Queensland or your employers’ own workers’ compensation insurer (NB some large employers are self-insured).
Employees on wages are eligible for workers’ compensation, but some workers operating under an ABN can also qualify. Whether a worker who is working under an ABN will be able to claim workers’ compensation benefits through that employer’s workers’ compensation insurance depends on the amount of control that the employer has over that worker.
If you are in fact an independent contractor, you will not be entitled to claim any workers’ compensation benefits and you will need to consider a public liability claim against the individual or company that caused your injury. For more information about public liability claims, click here.
How Do Workers’ Compensation Claims Work?
There are two (2) types of workers’ compensation claims, namely:
- Statutory workers’ compensation claims; and
- Common law claims.
Statutory Workers’ Compensation Claims
A statutory workers’ compensation claim is the claim that you make initially when you have been injured at work. Even if you caused the accident or injury, you can still make a claim provided that you did not intentionally hurt yourself.
WorkCover will be required to make a determination in relation to your claim, ie decide whether your claim should be accepted or rejected, once they receive your claim. In making that determination, WorkCover must consider the following matters:
- Whether you are effectively a worker or an independent contractor;
- Whether you have in fact suffered a diagnosable injury;
- Whether the injury arose out of or in the course of your employment; and
- Whether your employment was a significant contributing factor to your personal injury.
An aggravation of a pre-existing condition will be treated as an “injury”, provided that it is not simply a temporary flare up of your previous injury or condition.
In the case of psychiatric or psychological injuries, WorkCover will also consider the following:
- Whether your injury arose out of, or in the course of, reasonable management action taken in a reasonable way by your employer in connection with your employment;
- Whether your injury arose out of, or in the course of, your expectation or perception of reasonable management action being taken against you; and
- Whether your injury arose out of, or in the course of, action taken by the Workers’ Compensation Regulator or WorkCover (or a self-insurer) in connection with your application for compensation.
Once WorkCover has accepted your claim, they will pay the following compensation:
- Weekly benefits (which is normally 85% of your average weekly earnings for the first six (6) months, after which that amount often reduces);
- Any reasonable and necessary medical and rehabilitation expenses;
- Expenses relating to any return to work or host employment options that are available to you. In some cases, they will agree to pay for some re-training; and
- A lump sum for any permanent impairment that you have once your injuries are stable and stationary.
Please DO NOT accept any lump sum offer from WorkCover or your employer’s workers’ compensation insurer without first seeking legal advice from an expert personal injury lawyer. If the assessment of permanent impairment is less than 20%, you will NOT be able to pursue a common law claim if you have already accepted the lump sum offer.
Common Law Claims
To pursue a common law claim, you must prove that your injury was caused by the negligence (breach of duty of care) of your employer or a co-worker. A breach of duty can be established by showing that there was a poor system of work, excessively heavy or repetitive work, defective equipment, poor lighting, slippery surfaces or other dangerous working conditions. If the negligence or carelessness one of your co-workers has caused your injury, then your employer (and therefore WorkCover) will be vicariously liable for your injuries and any loss and damage suffered.
At your free initial interview, we will determine exactly how your injury occurred and provide you with our expert opinion as to whether you would succeed in a common law claim or not. If we believe you have reasonable prospects, and that your claim would be economically viable, we will offer to represent you on a “no win no fee” basis. Click here for more information on how we charge.
You can recover much more in damages from a common law claim than the compensation that is paid under a statutory claim. The damages that can be claimed in a common law claim include the following:
- Pain and suffering, loss of amenities and loss of enjoyment of life;
- Past economic loss (lost income);
- Past out-of-pocket expenses (eg treatment, rehabilitation and medication);
- Past paid services (eg cleaning, cooking, gardening, housekeeping, mowing), provided these services were not provided prior to your injury;
- Interest on any past economic loss, expenses or services;
- Future economic loss (likely loss of income/ earning capacity);
- Future likely out-of-pocket expenses; and
- Future likely paid services.
Beware! Very strict time limits apply with respect to workers’ compensation claims. Call today and speak with one of our expert injury lawyers to find out more about your rights and obligations and how best to deal with WorkCover (or the self-insured workers’ compensation insurer).
Claims Process for Work Injuries
Statutory Workers’ Compensation Claims Process
- You lodge a Claim Form with WorkCover Queensland (or your employer’s self-insurer);
- You will need to provide WorkCover Queensland (or your employer’s self-insurer) with a Work Capacity Certificate from your doctor setting out what injuries you have sustained and what medical treatment is recommended;
- WorkCover will then decide whether to accept your claim or not (ie whether they accept that your injury is work related etc);
- If you have an accepted workcover claim and ongoing work capacity certificates, WorkCover will pay for:
- Weekly benefits for some or all of your lost wages for any time off work;
- All reasonable and necessary medical and rehabilitation expenses; and
- A lump sum for any permanent impairment you have.
- WorkCover is also obliged to assist you with getting back to work, with your own employer or a Host Employer, as soon as possible following your injury.
- Once your injuries are considered to be stable and stationary, WorkCover will arrange for your injuries to be assessed for permanent impairment. If they simply close your file without having your permanent impairment assessed, then you will need to ask WorkCover to assess your injuries for permanent impairment.
- Once WorkCover has the medical reports setting out any permanent impairment you have suffered, they will issue a Notice of Assessment. The Notice of Assessment will contain one or more lump sum offers. They must make one offer for all your physical injuries and another separate offer for your psychological injuries, where applicable.
- Once you receive the Notice of Assessment, you have twenty (20) business days to decide if you will accept, reject or defer WorkCover’s lump sum offer(s). We would strongly recommend that you DO NOT accept any lump sum offer(s) from WorkCover without first seeking legal advice, as this may prevent you from being able to pursue a common law claim.
- At the end of the twenty (20) business days, your WorkCover claim will be closed and all payments will cease.
- Once your payments have ceased, if you are not back at work, then you will need to apply to Centrelink for benefits (if eligible). You should also look at whether you might be entitled to any income protection benefits under your superannuation policy or a private insurance policy. There are also litigation loan companies who offer loans that are repaid (together with any interest and fees payable) out of your settlement monies.
Common Law Claims Process
A common law claim can be commenced after you have received your Notice of Assessment from WorkCover Queensland (or the self-insurer).
The common law claims procedure is as follows:
- Step 1 – We serve a Notice of Claim for Damages (containing an Offer of Settlement) on your employer (at the time your injury occurred) and WorkCover Queensland (WorkCover handles the claim as your employer’s insurer)
- Step 2 – Medico-legal examinations are organised (for both sides)
- Step 3 – WorkCover provides their liability response indicating whether they formally accept that they breached a duty of care to you (this occurs around 6 months after they receive your Notice of Claim for Damages)
- Step 4 – The parties attend a compulsory settlement conference (within 3 months after receiving WorkCover’s liability response) (NB Around 70% of claims resolve at this stage)
- Step 5 – At the conclusion of the conference, if the parties cannot reach an agreement, then they must exchange Written Final Offers (which then remain open for 14 days and cannot be withdrawn)
- Step 6 – We file in the court registry a Claim and Statement of Claim on your behalf setting out the basis of your claim (within 60 days of the compulsory settlement conference)
- Step 7 – WorkCover’s Solicitors then file a Defence on behalf of the employer
- Step 8 – We file a Reply to the Defence on your behalf
- Step 9 – We serve a Statement of Loss and Damage on WorkCover’s Solicitors (setting out the quantum of your claim)
- Step 10 – The parties exchange other court documents including Lists of Documents
- Step 11 – Generally, a matter will then proceed to a Mediation under the court rules (NB Around 90% of claims will resolve by this stage)
- Step 12 – If the matter still cannot be resolved, then we start preparing for Trial whilst continuing to try and negotiate a settlement of your matter with the Defendant
- Step 13 – If there is no compromise or settlement, then the matter will proceed to trial where you, all medical experts and lay witnesses appear in Court to give evidence
(NB less than 2% of personal injury claims proceed to trial)
So, what is required of you during the common law claim process?
We will handle the majority of your claim so you can live your life normally. What might be required of you could include the following:
- We will need to speak with you in person or via Zoom about the incident;
- We will need your help with finalising any claim form, to ensure that we get your story right so you can then sign that claim form;
- We will need you to attend some medicolegal appointments for us and the insurer will require the same;
- We will need you to provide us with copies of any relevant documents including receipts for medication and treatment, financial documents and an impact statement (detailing how your injuries have affected you and are continuing to affect you);
- We will need you to approve any offer of settlement that we formulate on your behalf; and
- We will need you to attend a compulsory settlement conference so as to provide us with your instructions regarding any offers of settlement and to answer any additional questions we might have. We will not permit Workcover’s lawyers to ask you any questions directly. (NB Around 70% of claims resolve at this stage)
If the claim fails to resolve at the compulsory conference:
- We will need you to attend a mediation to provide us with your instructions regarding any further offers of settlement and to answer any additional questions we might have. (NB Around 90% of claims resolve by this stage)
- We will not permit Workcover’s lawyers to ask you any questions directly during the mediation.
If the claim fails to resolve at the mediation:
- We will need to discuss what further offers of settlement should be made, if any, prior to trial;
- We will need you to attend court to give evidence, if the matter actually proceeds to trial. (NB less than 2% of personal injury claims proceed to trial)
When to engage a personal injury lawyer?
You should engage a personal injury lawyer as soon as possible. This is so:
- We can make sure that what you are telling the doctors and WorkCover is consistent – ie your story needs to remain the same, or conflicting versions need to be clarified as soon as possible, as credibility is critical in these claims
- We can make sure that your work capacity certificate contains a list of all injuries you have sustained, no matter how insignificant – sometimes the doctors need some guidance in that regard
- We can make sure that WorkCover has officially “accepted” all injuries listed on the medical certificates – so you can be compensated for all injuries
- We can make sure that you are being paid the correct amount of weekly benefits by WorkCover and that they are fully investigating and treating all of your injuries
- We can start putting your Notice of Claim for Damages together, so that your common law claim can be commenced immediately once your “compo” claim ceases
How to lodge a workers’ compensation claim?
- Notify your employer of your injury as soon as possible, preferably in writing.
- Attend upon your doctor for treatment and to obtain a WorkCover Queensland “work capacity certificate”: https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0007/77119/form-132m-work-capacity-certificate-workers-compensation.pdf
- Send a copy of your work capacity certificate to your employer.
- Complete WorkCover’s online Claim form: https://ols.workcoverqld.com.au/ols/public/claim/lodgement.wc
Print the Claim form out, complete it and then upload it using WorkCover’s online service (https://ols.workcoverqld.com.au/ols/public/uploadNewClaim.wc?code=NEWCLAIM), or fax it to 1300 651 387, or post it to GPO Box 2459, Brisbane Qld 4001.
This is where the pdf of the Claim form can be found: https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0015/3057/Claim-form-FM106-v10.pdf
Where urgent surgery is required or where there has been a fatality / death, you can call WorkCover on 1300 362 128 to lodge the claim over the phone.
- Upload a copy of the work capacity certificate using WorkCover’s online service (https://ols.workcoverqld.com.au/ols/public/uploadNewClaim.wc?code=NEWCLAIM) or fax it to WorkCover on 1300 651 387.
- Once the claim form and work capacity certificate has been uploaded, WorkCover will contact you (usually via text and/or email) to confirm that they have received the claim. They will then contact your employer to obtain their version of events. If WorkCover accepts that you have suffered a work related injury, your claim will be officially accepted. WorkCover will then commence paying you weekly benefits for your time off work and any reasonable and necessary treatment and rehabilitation.
What if I was employed as a subcontractor?
A subcontractor working under an ABN will be considered to be a “worker” under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) if the subcontractor is effectively working as an employee. Anyone considered to be a “worker” will be entitled to receive workers’ compensation benefits.
To determine whether you are a “worker”, WorkCover will consider the following things (amongst others):
- How much control the company you are working for (“the employer”) has over you;
- Whether you wear the employer’s uniform / shirts or your own gear;
- Whether you can delegate or subcontract your work to another person;
- Your ability to decide where you work, when you work and your hours of work;
- Whether you or the employer decides how the work is to be done;
- How you are paid (hourly rate or a fixed fee);
- Whether you use your own tools, equipment and vehicles or the employer’s tools, equipment and vehicles;
- Whether you have to remedy any defects in the work you have done or whether the employer remedies any defects.
How long do you have to lodge a statutory workers’ compensation claim?
You only have six (6) months from the date you were injured to lodge your workers’ compensation claim. There are, however, some exceptions to the six (6) month rule, so you should speak with an experienced personal injury lawyer about your potential claim even if you are outside the six (6) month timeframe.
It is important to note that workers’ compensation benefits are only payable from the day you attend upon a medical practitioner and obtain a work capacity certificate. Any time off work prior to that date, then, will eat away at your sick leave (if available). It is therefore important to lodge the claim as soon as possible.
If you have obtained work capacity certificates from your doctor but then delay lodging your workers’ compensation claim, WorkCover will only be obliged to cover weekly benefits and expenses for the 20 business days prior to your workcover claim being lodged. So, it is important that you do not delay in lodging your workers’ compensation claim.
Even if you did not have a workers’ compensation (“compo”) claim and are now outside the six (6) month timeframe, you will still be able to pursue a “common law only” claim if you can prove that your employer breached their duty of care to you. One of our expert personal injury lawyers would be able to explain your options in that regard.
What injuries can I claim for?
- Fatal injuries / Death claims
- Catastrophic injuries
- Head injuries and brain injuries, including closed head injuries, traumatic brain injuries (TBI) and acquired brain injuries (ABI)
- Post-concussion syndrome
- Spinal cord injuries, including tetraplegia (also known as quadriplegia) and paraplegia
- Brachial plexus injuries
- Amputation injuries
- Neurological injuries
- Thoracic outlet syndrome injuries
- Complex regional pain syndrome injuries
- Cauda equina injuries
- Spinal injuries
- Facial injuries including injuries to the jaw
- Whiplash injuries
- Neck injuries
- Back injuries, often lower back injuries
- Bone fractures
- Pelvic injuries and hip injuries
- Joint dislocations, including ankles, knees, hips, shoulders, elbows, wrists and fingers
- Shoulder injuries
- Elbow injuries
- Hand injuries, wrist injuries and finger injuries
- Degloving injuries of fingers, arms, legs, etc
- Carpal tunnel syndrome injuries
- Repetitive strain injury (“RSI”)
- Vibration injuries
- White finger syndrome injuries
- Internal organ injuries
- Abdominal injuries
- Hernias, including inguinal hernias (groin) and umbilical hernias (belly button)
- Groin injuries
- Leg injuries and thigh injuries, including fractures
- Knee injuries, including ACL tears, PCL tears, MCL tears, LCL tears, torn meniscus, fractures and dislocations
- Foot injuries and ankle injuries
- Toe injuries
- Soft tissue injuries
- Electrocution injuries
- Industrial hearing loss injuries
- Cuts, lacerations and bruises
- Chemical injuries
- Chronic pain disorder
- Psychiatric and psychological injuries including depression, stress, post traumatic stress disorder, adjustment disorder, anxiety, traffic phobia, pain disorder
- Nervous shock injuries
- Sexual abuse injuries
- Physical abuse or assault injuries
- A disease caused by your employment
- Asbestos related injuries
- Silica dust related injuries
- Aggravation of pre-existing injuries
- Aggravation of pre-existing degeneration
Will an aggravation of a pre-existing injury or condition be accepted as a work injury?
Yes. If your pre-existing condition has been made worse by the work incident, then this will be considered a new injury and will be described by WorkCover as an aggravation of a pre-existing condition.
WorkCover is only liable, however, to pay for treatment that has been caused by the aggravation and is not liable to pay for any treatment that is effectively required as a result of the underlying pre-existing degeneration or condition.
How do I appeal against WorkCover’s decision to reject my claim?
Within three (3) months from the date of receiving WorkCover’s decision to reject your claim, you must lodge an Application for Claim Review with the Workers’ Compensation Regulator setting out your grounds for review. You will need to provide as much medical evidence and other evidence as possible to support your position.
We would strongly recommend that you seek legal advice from an expert personal injury lawyer before lodging an Application for Claim Review with the Workers’ Compensation Regulator, as how you frame your appeal / review application is very important.
If the Workers’ Compensation Regulator then agrees with WorkCover and rejects your claim, you have to appeal to the Queensland Industrial Relations Commission within twenty (20) business days of receiving notice of the Regulator’s review decision.
How long does a WorkCover claim go for?
An average worker’s compensation claim goes for around six (6) months. It all depends on the injuries you have suffered and how long they take to become stable and stationary (ie reach maximum medical improvement). Where there are serious personal injuries requiring ongoing treatment or multiple surgeries are required the workers’ compensation claim can last significantly longer than six (6) months.
Your WorkCover claim remains open until you return to work and no longer require any treatment OR until your injury is considered to be stable and stationary and WorkCover has assessed your permanent impairment.
Once the permanent impairment assessment has taken place, WorkCover (or the self-insurer) issues a Notice of Assessment with a lump sum offer for any permanent impairment. The claim will then remain open for a further twenty (20) business days after you receive the Notice of Assessment before it is then closed.
What are the time limits for commencing a common law claim?
You have three (3) years from the date you were injured to commence your common law claim. The time limit will be protected if you serve a Notice of Claim for Damages on your employer and WorkCover Queensland and receive a letter from WorkCover confirming “compliance” with the Workers’ Compensation and Rehabilitation Act 2003 prior to the three (3) year time limit expiring.
If those steps are not taken within the three (3) year timeframe, all rights to pursue a common law claim for damages will be lost.
There are some limited exceptions to this rule, however, so you should seek urgent legal advice from an expert personal injury lawyer if it appears that you might be outside the three (3) year time limit.
Who do you sue in a common law claim?
In order to pursue a common law claim you have to prove that your employer or a co-worker was negligent in some way. Your employer will be held liable for the actions of any co-workers, provided they were acting within the scope of their employment.
As a result, when you bring a common law claim you are effectively suing your employer for negligence but they are then covered by their insurer, which is WorkCover Queensland (or a self-insurer). WorkCover assumes the defence of the claim and ultimately pays out any settlement amount or court award.
How will my co-workers and employer be affected by me bringing a common law claim?
There is no adverse impact on your co-workers at all. They may have to give a statement about what happened but that would be it. They may also be required to give evidence if the matter went to trial, which is extremely unlikely (less than 2% of personal injury claims actually proceed to trial).
In terms of the impact on your employer, their future workers’ compensation premiums might be affected to some extent.
What is my claim worth?
How much compensation or damages you will be entitled to receive is dependent on a lot of different factors, including:
- What ongoing problems you have as a result of your injuries – obviously, we won’t know this until your injuries are stable and stationary and have been assessed by the medical experts
- What the doctors say about your injuries, particularly the degree of impairment and the level of disability you have as a result of your work related injuries
- Whether you have pre-existing degeneration, previous injuries or other conditions that were impacting on you, or are going to impact on you in the future
- What restrictions and difficulties you have, particularly with respect to your work capacity
- What your income and earning capacity was like pre-accident, compared to what your income and earning capacity is now like
- Whether you have needed paid care and support as a result of your work injuries and, if so, the nature and extent of that support
- How much ongoing treatment, medication, care and support you need in the future
Common law claims often settle for hundreds of thousands of dollars or more.
How long do common law claims take?
Once a common law claim has been commenced, it usually takes around 9 to 10 months to resolve (although some are settled sooner and others can take longer). Before a common law claim can be commenced, we have to wait until you have received your Notice of Assessment from WorkCover Queensland (or the self-insurer).
Factors that may delay the settlement of a common law claim can include:
- where there are multiple parties involved (eg a principal contractor of a construction site or building site, as well as your employer)
- if there is a significant dispute over whether the employer should be held liable for your injuries
- problematic opponents (ie WorkCover or their lawyers being obstinate / difficult)
- conflicting expert medical evidence from doctors
- complex employment arrangements (businesses, family trusts, etc)
Will I have to pay back what WorkCover has already paid me?
No. Any workcover common law claim is settled “clear of the refund to WorkCover”.
How do I start my common law claim?
Your lawyer will do this for you. The claim is commenced by serving a Notice of Claim for Damages on your employer and WorkCover Queensland. That claim form sets out your entire claim, including the description of incident and allegations of negligence against your employer, your past employment information, all treating medical practitioners that you have seen and how much you are claiming in damages (ie compensation).
A common law claim cannot be commenced until you have received a Notice of Assessment. Once you have received the Notice of Assessment from WorkCover (or the self-insurer), simply send it to us and we will then start preparing a draft Notice of Claim for Damages for your consideration.
Once that form is finalised, we arrange for you to sign it and we then serve it on your employer and WorkCover Queensland (or the self-insurer) as soon as possible thereafter. WorkCover (or the self-insurer), or their appointed Solicitors, then take the matter over and manage the claim.
How much will it cost me to bring a common law claim?
It depends on how much work is done. Every matter is different. Our hourly rates are extremely competitive. For more information on how we charge, click here.
Do I have to pay tax on any damages I receive from WorkCover?
No. This is because any claim we make on your behalf for lost income or economic loss is made on a net basis (ie after tax), so as you have not claimed tax from WorkCover you do not have to pay any tax on your settlement monies. Of course, if you subsequently invest your settlement monies and earn income from those monies, then you may be liable to pay tax on those earnings. You should speak with your accountant and/or financial advisor in that regard.
During your free consultation, we will take steps to:
- Determine exactly what injuries you have suffered;
- Work out precisely what caused your injury;
- Go over what training, directions and instructions your employer had provided in relation to the work task or events that caused your injury;
- Ascertain what could have been done by your employer to minimise the risk of injury to you;
- Decide whether there was a breach of duty of care on behalf of your employer;
- Consider whether your injury was actually caused by your employer’s negligence;
- Decide whether your claim is likely to be economically viable;
- Provide you with our advice on whether we believe you will win and whether your claim will be viable;
- Discuss the process of workers’ compensation claims and common law claims and what will be required of you;
- Discuss what costs will be involved and how we charge; and
- Respond to any questions that you might have in relation to your claim.