WorkCover and work place injuries

The WorkCover process can seem daunting. We have provided the following general information to help give you a basic understanding of this complicated process. For further information on this process and your rights contact us by clicking here to receive free legal advice.

STATUTORY CLAIM PROCESS

COMMON LAW CLAIM PROCESS

STATUTORY CLAIM PROCESS

Introduction

If you are a worker that has sustained an injury at work you are be entitled to make a worker's compensation claim (the ‘statutory claim’).

Generally, WorkCover Queensland are the insurer for workplace injuries. Some large companies self-insure. For a list of self-insured companies and their contact details click here. For the purposes of this section, the insurer will be referred to as WorkCover.

In Queensland, if you are a worker that sustains a workplace injury you are entitled to ‘statutory’ benefits for the time you have off work and any initial medical treatment or other rehabilitation resulting from the injury. However, you may also be eligible for a common law claim, in which case you may be entitled to more substantial compensation including future economic loss and future medical treatment. To find out if you are eligible for Common Law damages for a work accident, click here.

What should I do if I have been injured at work?

If you have been injured at work, you should take the following steps to apply for compensation.

  1. Report the injury to your employer immediately. WARNING: You have only 6 months to lodge an application for compensation with WorkCover.
  2. If you require medical attention or are unable to continue working, visit a doctor for treatment.
  3. If the doctor agrees your injury is work-related, they should give you a Workers' Compensation Medical Certificate. You should give the original copy of the medical certificate to WorkCover and a copy to your employer.
  4. Fill in an Application for Compensation. This form is available from your employer or nearest WorkCover office.
  5. Obtain and complete an Employment Declaration if you are claiming for lost wages. This form is available from WorkCover offices, your employer, the Australian Taxation Office or your local post office.
  6. Attach your Workers' Compensation Medical Certificate to the Application for Compensation and attach an Employment Declaration if required. WorkCover needs these forms and your Employer's Report to consider your application.

You are obliged to complete all the necessary forms when you apply for compensation.

You must provide accurate and true information to WorkCover at all times. If you are found guilty of fraud or attempted fraud you may:

  1. Lose your entitlement to statutory workers' compensation;
  2. Lose your right to claim damages.

It is important that you cooperate with all persons involved (e.g. WorkCover, your employer, your doctor, your solicitor) and minimise the effects of your injury through appropriate medical treatment and rehabilitation.

Some applications are more complicated than others and may take longer to process. To reach a decision, WorkCover may talk to you, witnesses to your injury, your doctor and your employer. As soon as a decision is made, WorkCover will inform you and your employer in writing.

If your application for compensation is of a complex medical nature, WorkCover may refer you to a Medical Assessment Tribunal. Medical Assessment Tribunals provide a way of reviewing and assessing injuries and impairment sustained by workers. Tribunals are composed of three doctors who are specialists in the area of your injury.

In order to protect your rights you must formally apply for compensation with WorkCover within six months of the date of the accident. If your application is rejected, you should lodge an appeal within three months of WorkCover's decision rejecting the claim. Failure to do so could preclude any future common law claim.

If you have been referred to a Medical Assessment Tribunal or WorkCover have rejected your statutory claim and you would like legal advice Click here for specific advice on your case.

Ceasing of WorkCover Benefits

Before you can progress a common law claim WorkCover statutory weekly benefits must cease. Usually it is not cost effective or necessary for solicitors to become heavily involved in the processing of your statutory claim. We wish to emphasise that your financial hardship will be reflected in your common law claim for damages.

If you are unable to return to work following the cessation of WorkCover benefits we suggest that you contact Centrelink and apply for the appropriate benefit, either New Start, Sickness Benefits or a Disability Pension.

We understand that many injured workers are unable to return to work and endure financial hardship following cessation of WorkCover benefits. Please note that you can claim any periods that you have been unable to work due to your injuries as the ‘past economic loss’ component of your common law claim.

Only once WorkCover have ceased your statutory claim can the common law claim [link to enquiry] and the Workcover pre-court process begin.

Assessment of Injuries by WorkCover

The WorkCover statutory claim will only continue until your injuries are medically ‘stable and stationary’ (meaning your symptoms are not likely to get any better or worse). It usually takes between six to twelve months for injuries to stabilize. Whether your injuries are stabilized is determined by a WorkCover doctor. If the doctor confirms the injuries have stabilized he will use medical guides to assess permanent impairment (expressed as a percentage) an issue a report to WorkCover.

Once WorkCover have received the doctors report they will issue a ‘Notice of Assessment’ displaying the date of the injury, the injuries suffered, the degree of permanent impairment (WRI – work related impairment) and offer lump-sum compensation based purely on the degree of permanent impairment.

If an injured worker has prospects of proving negligence (ie fault) on the part of their employer they can claim for common law damages. If you would like to find out if you can claim for common law damages, click here.

It is important to understand that any offer on a Notice of Assessment has no correlation to damages you may receive in a common law claim. Generally damages in a common law claim are usually far in excess of any lump-sum offer in the Notice of Assessment.

If negligence can be established, common law compensates under the following heads of damages in a common law claim:

  • pain, suffering and loss of amenities of life;
  • past economic loss;
  • future economic loss and loss of earning capacity;
  • future medical, rehabilitation, pharmaceutical and traveling expenses.

The Lump Sum offer from WorkCover DOES NOT take into account these factors and is based purely on a statutory formula.

It is very rare that these matters proceed to trial. In excess of 96% of matters settle without the need to go to trial.

You should contact us immediately upon the receipt of the Notice of Assessment to receive free legal advice. We can advise you how to respond to the Notice of Assessment. To proceed to common law it is usually necessary to reject any offer of lump-sum compensation. Following this rejection any entitlement to WorkCover statutory benefits will cease.

NOTICE OF ASSESSMENT

If the WRI is under 20%

If you are assessed as having a work-related impairment (WRI) of less than 20% you must choose between:

  • Accepting the statutory lump sum compensation offered by WorkCover. or:
  • Claiming damages at Common Law from your employer.

Your choice - to accept or reject WorkCover's offer of lump sum compensation is called the 'irrevocable election'. If the WRI is under 20% and you accept the lump sum then you will be precluded from proceeding with a common law claim for damages. By accepting the lump sum offer in these circumstances you are ‘signing away’ your rights to ever bring a common law claim.

Note: If you sustain work-related impairment from a psychiatric or psychological injury (less than 20%) and another injury (less than 20%) you cannot combine these to reach 20% or more.

If the WorkCover doctor does not believe that you have suffered a permanent impairment and has assessed you at 0% WorkCover will offer you ‘Nil’. However, you may still be eligible for common law damages.

You should seek legal advice before responding to a Notice of Assessment due to the very serious impact it can have on your legal rights, click here.

If the WRI is over 20%

If you are assessed as having a work-related impairment (WRI) of 20% of more, you have the right to:

  • Accept the statutory lump sum compensation offered by WorkCover; and
  • Claim damages at Common Law from your employer.

It is important to note that physical and psychiatric injuries can not be combined to achieve a 20% WRI. It can at times appear you have a WRI over 20% but in fact by accepting the offer you are ‘signing away’ your rights to ever bring a common law claim.

You should seek legal advice before responding to a Notice of Assessment due to the very serious impact it can have on your legal rights.

IF YOU HAVE RECEIVED A LUMP SUM COMPENSATION OFFER from WorkCover, contact us immediately before taking any further steps so that we may advise you further of your rights click here.

COMMON LAW CLAIM PROCESS

WorkCover Pre-Court Process

The WorkCover pre-court process represents a ‘cards on the table’ approach to litigation and is designed for the early cost effective negotiated resolution of disputes without the need to go to court. Only if this process fails can the matter can proceed to court.

The pre-court process can only start once WorkCover have issued the Notice of Assessment (see above). Proceedings cannot be lodged in court without passing through several ‘gateways’:-

Notice of Claim for Damages Form

This is a lengthy form that that concisely sets out the basis of your claim including the damages being claimed and allegations of negligence against your employer.

Once completed this form is served on WorkCover Queensland as well as the employer. The Notice of Claim form must be deemed ‘compliant’ by WorkCover before continuing.

Any areas of information WorkCover consider ‘non-compliance’ can be remedied in a statutory declaration.

Liability Response from WorkCover

Once that WorkCover’s solicitors have confirmed compliance they have a maximum period of six (6) months to provide a notice stating:-

  1. Whether WorkCover admit or deny liability for the injury;
  2. Whether they accept/reject the offer put forward in the Notice of Claim form.

WorkCover will usually reject the offer put forward in the Notice of Claim form and make a counter offer. WorkCover may provide the notice within the 6 months but are entitled to take the full 6 months before providing their response.

During this 6 month period WorkCover will undertake their own investigations and may require you to attend a further medical assessment. We will also arrange for you to be medically examined.

Compulsory Conference

Pursuant to the legislation it is necessary for the Compulsory Conference to be held before proceedings can be commenced in court. The compulsory conference must be held within three (3) months of WorkCovers liability response.

We will be able to advise as to the reasonableness of any offers made at the conference having regard to the circumstances of your matter. You may or may not be required to attend the conference in person. Often clients can attend the conference via telephone.

Court proceedings

Should the matter not settle at the compulsory conference proceedings must be commenced in court and served within 60 days. Despite this, further settlement conferences can be held following the compulsory conference and before the matter goes to trial. While it may be necessary to issue court proceedings very few matters actually proceed to trial.

As all the necessary information regarding your claim is known to both parties due to the pre-court process court proceedings are usually streamlined and can usually be concluded within around 6 months.

The above list is not an exhaustive list of all of the procedures which may be necessary to carry out and should be read as a basic guide only. Different cases take different amounts of time to resolve.

The WorkCover process can seem daunting. We have provided this general information to help give you a basic understanding of this complicated process. For further information on this process and your rights contact us by clicking here to receive free legal advice.

Workplace injury claim time limits

WARNING: You have only 6 months to lodge an application for compensation with WorkCover. However, lodging a statutory claim outside 6 months from the date of injury can also jeapardise any future common law claim. If your workplace accident occurred more than 6 months ago and you have not lodged a statutory claim with WorkCover you should contact us immediately to receive free legal advice.

Generally, in relation to accidents in Queensland you only have three years from the date of accident within which to issue proceedings in Court. Should you not issue proceedings within this time then you could lose your rights forever and be prevented from claiming.

Proceedings can not be issued in Court unless ‘pre-court’ procedures have been completed pursuant to the Workers’ Compensation and Rehabilitation Act.

If pre-court procedures have not been completed with and the three year limitation period is drawing near a Notice of Claim form can be lodged. If this document is deemed ‘compliant’ by Workcover within the three year period the limitation period is then extended until 60 days after a compulsory conference is held.

If a Notice of Claim is not lodged and compliant within the three year period the action will be statute barred.
Also, whether within the three year limitation or not, a matter can be statute barred if proceedings are not filed and served within 60 days of the holding of a compulsory conference.

As can be seen, time limits and procedures under the legislation are complex and can be fatal to a claim if not complied with. It is best not to delay. Protect your rights and contact us by clicking here to receive free legal advice.

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