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Work Accident Injuries

Workers in Queensland are fortunate to have a compulsory system of Workers' compensation Insurance.

In accordance with the Workers’ Compensation & Rehabilitation Act 2003 (the WCRA), every employer must have workers' compensation insurance.

In accordance with the WCRA, there are obligations imposed on employers and employees to ensure that the system operates in order to achieve its aims.

“Worker” as defined within the WCRA.  If you are an employee for wages, you are a worker.  Further, if you work under a contract, or at piecemeal rates for labour or substantially for labour only, you are also a worker.  If you have any doubt, contact WorkCover Queensland and ask. 

If applying for compensation, the employment must be connected with the State of Queensland.  An application must be lodged with the workers compensation insurer within 28 days of the injury.

There is an approved form which should be available from your employer.  If not, you can download it from WorkCover Queensland’s website (www.workcoverqld.com.au), or ask WorkCover to send one to you.

You must also obtain a specific Q-Comp medical certificate and submit it with the application.

Your employer must complete a report on the incident and submit that report to WorkCover.

The insurer must make a decision to accept or reject your application within 3 months.

Entitlements

Injured workers have an entitlement to various benefits upon acceptance of their application for workers compensation benefits.

These entitlements are regulated by the provisions of the Workers’ Compensation & Rehabilitation Act 2003 (the WCRA).

All entitlements are dependent upon the worker being in receipt of current medical certification in the approved form.  This certificate will certify for a specific period of time:-

1. Total incapacity;
2. Partial incapacity allowing for a return to suitable duties; or
3. Partial incapacity allowing full duties but requiring ongoing medical treatment.

These medical certificates are a prerequisite for payments under the WCRA.  If your medical certification lapses, your claim and benefits will cease.

Wages.  If totally incapacitated, you will be entitled to payment of wages at 85% of your NWE (Normal Weekly Earnings).  After 26 weeks, if still totally incapacitated, your entitlement will reduce to 65% of NWE.  Further reduction in the payable compensation occurs after 2 years, unless you can show that the injury could result in a WRI (work-related impairment) of more than 15%.

Medical Expenses.  The workers' compensation insurer must pay the costs of medical treatment or hospitalisation that they consider reasonable.  There exists a table of costs, and the insurer will have regard to this table, in considering a particular expense.  Quite often the insurer may only fund part of an expense and accordingly it is advisable to seek pre-approval for the expense.  Again, current medical certification is essential.  The insurer will not pay for any expenses incurred where a worker was not in possession of a medical certificate.

Travelling Expenses.  Ambulance travel is generally paid, provided it occurs immediately after the injury and the injured worker is taken to a place where appropriate medical treatment is available, or in the event that subsequent travel is required and certified by a doctor.  You are entitled to seek reimbursement for travel expenses incurred if the requirement for travel exceeds 20km one way.

Permanent Injury

Despite a current medical certificate, benefits will not be paid by the workers' compensation insurer forever.

If a worker is not able to return to work, there will come a time when medical treatment is unable to improve the outcome for the injury.

Once your condition can neither improve nor become worse, the workers' compensation insurer will try to finalise your claim.

They will arrange for an assessment of your injury/ies either by a specialist, an external medical examiner, or by a Medical Assessment Tribunal.  They will ask for an assessment of whether the injury has reached a position where it is stable and stationary.  If this is agreed, the doctor will be asked to assess the level of permanent impairment attributable to the injury.

In accordance with the Workers’ Compensation & Rehabilitation Act 2003 (the WCRA), there are maximum lump sum payments set.

Depending upon the assessment of impairment, converted to a WRI (work-related impairment) assessment, a certain amount will be payable to you.  This offer will be made via a letter from WorkCover or the insurer enclosing a Notice of Assessment.

If you are assessed as having sustained less than 20% WRI, you will have to make an election to EITHER accept the lump sum payment OR pursue a damages claim against your employer (in appropriate circumstances).

If you are not satisfied with the assessment of impairment and you have only been assessed by a doctor, you have a right to disagree with the assessment.  If you do disagree, your assessment will be referred to the Medical Assessment Tribunal.

You will need to make this election within 20 business days of the Notice of Assessment being received by you.

If you receive an offer from the insurer, it is very important that you consider your options fully, seek all appropriate advice, and do not sign anything until you have considered your advice and your circumstances fully. 

A hasty decision at this stage of your claim can have permanent and tragic consequences.

Lump Sum Offer v Common Law Damages

The workers' compensation system in Queensland provides two separate but related systems - the statutory scheme prescribed under the Workers’ Compensation & Rehabilitation Act 2003 (the WCRA) and the common law damages system as regulated by the WCRA. 

The statutory scheme is a no fault system, and provided you are a “worker” and have sustained an “injury”, you will have a statutory entitlement to benefits (wages, medicals, rehabilitation etc) subject to the exceptions set out for psychological claims and overseas workers.

In order for you to have any entitlement to seek common law damages, you must be able to prove that your employer was negligently responsible for causing your injury.

A common law damages claim can only be accessed by rejecting a lump sum offer for an injury of less than 20% WRI (work-related impairment), but if assessed at 20% WRI or above you can accept the lump sum and in addition sue your employer for damages.

Damages in a common law claim is an “injured worker's” only means of obtaining appropriate compensation, which will go a long way towards compensating for your loss.

Unlike the statutory scheme, a damages claim is aimed at compensating you for the losses sustained as a consequence of your injuries.

A court will consider these losses in terms of various heads of damages, including:-

1. pain and suffering;
2. out of pocket expenses;
3. loss of wages;
4. loss of superannuation contributions;
5. assistance provided free of charge;
6. future assistance or commercial paid assistance;
7. future medical/rehabilitation expenses;
8. future loss of wages;
9. future loss of superannuation contributions.

An assessment of your claim requires a detailed consideration of all of these heads of damage.  A detailed review of the circumstances of your injury is also necessary.

You have no right to claim damages unless you can prove that your injury/ies resulted from the negligent conduct of your employer.

It is very important to seek advice in relation to these matters prior to making any decision about your lump sum offer from WorkCover Queensland or the insurer of your employer.