If you were injured at work, understanding how to claim workers’ compensation (QLD) can make you feel more confident in your next steps. Workers’ compensation helps you cover financial hurdles such as lost wages and medical costs. In this article we explain how to claim workers’ compensation and what to expect along the way.
It’s important to note that if you have suffered a psychological injury at work, you should always seek legal advice before applying for WorkCover. This type of injury is a complicated process with many trips and hurdles, so you need to know it well for the best chance of your claim being accepted.
The two stages of workers’ compensation in Queensland
Did you know that the Queensland workers’ compensation system falls into two separate stages? The first is the statutory benefits stage where no negligence is required for medical treatment, rehabilitation services, and loss of wages to be covered. The second is the damages claim stage, a claim only available where employer negligence can be proven. The statutory claim must be completed, and your injuries assessed for permanent impairment before the damages claim can be commenced.
What is the statutory benefits stage of workers’ compensation (WorkCover Claim)?
If you have been injured at work, you may be entitled to workers’ compensation benefits to cover the cost of approved medical treatment, rehabilitation services, and loss of wages. This is informally known as a ‘WorkCover claim’ in Queensland. Strict time limits apply and you have 6 months from your injury date to lodge an application for a WorkCover claim.
So, how do you claim workers’ compensation (QLD) at this stage? You will either claim through WorkCover Queensland or your employer’s insurance if they are a self-employed employer. Unlike the common law damages stage (covered in the next section), the statutory compensation stage does not require you to prove fault on the part of your employer.
You are generally eligible if:
- You are a ‘worker’ as defined in the Workers’ Compensation and Rehabilitation Act 2003 (the WCRA)
- You have suffered an ‘injury’ as defined by the WCRA
- You suffered the injury at work, with some further requirements for psychiatric injuries.
What am I entitled to under WorkCover?
If your WorkCover claim is accepted you may be entitled to compensation for financial costs related to:
- Pre-approved medical and rehabilitation expenses
- In certain cases, the funding of assistance at home
- Loss of wages to a percentage of your average earnings before the injury
- In certain cases the costs of retraining/education
- If you have suffered a permanent injury, a payment of lump sum compensation
What should I do if I’m offered a lump sum to finalise my WorkCover claim
When your condition either cannot be improved, becomes worse and reaches a stable and stationary position (i.e. not improving and not getting worse), the workers’ compensation insurer will try to finalise your claim with a lump sum payment. It’s very important to seek legal advice in relation to these matters prior to making any decision about your lump sum offer.
At the end of the statutory compensation stage, you are offered a lump sum offer based on a % of impairment. This is generally assessed by an independent medical examiner. WorkCover or the insurer will send you to see this doctor for an assessment of Degree of Permanent Impairment (DPI) and will offer you a lump compensation payment depending on the outcome of this assessment.
If the DPI assessment is less than 20% you will need to accept the lump sum or pursue a damages claim (if you accept this you can’t pursue a damages claim as the election is irrevocable, so always seek legal advice before making a decision). If you’re assessed at greater than 20% you can accept the lump sum and also pursue a damages claim.
A review of the circumstances of your injury is necessary for us to provide advice on whether any client should pursue a common law damages claim. You aren’t entitled to claim damages unless you can prove that your injury/ies resulted from the negligent conduct of your employer.
How long does a WorkCover claim take?
WorkCover claims generally take anywhere up to five years to complete. This will depend on the complexity of your injuries, the treatment, and rehabilitation required, but your lawyer will confirm this for you at the start of the process. Generally speaking, the claim will last as long as it takes for you to receive all medical treatment and return to work, or if you cannot return to work until your injuries become stable and stationary.
How long can I stay on my WorkCover claim?
In Queensland, workers’ compensation typically lasts 12 to 18 months. It ends once your injuries reach maximum medical improvement, however payments may continue for up to five years if there is a catastrophic injury. Payments may also stop if you return to work, receive a lump-sum permanent impairment payout, or hit the maximum compensation amount. To learn more, read our article about workers’ compensation timings.
What does the WorkCover claim process look like?
What does it look like to make a WorkCover claim (QLD)? Below are the is a summary of the general steps:
- Arrange a medical appointment and obtain a workers’ compensation medical certificate: This will usually be at hospital if you’re taken there after injury, or your General Practitioner, sometimes a specialist if you have one.
- Submit your WorkCover claim: If you have suffered a physical injury our initial WorkCover claim application can generally be lodged over the phone. Pure psychological injury cases are more complex, and we recommend seeking legal advice before you submit an application to the insurer.
- Provide ongoing medical certification and seek treatment, rehabilitation etc: In order to receive payment for your loss of wages and medical expenses you need continued medical certification, and referrals for treatment. Once your treatment has concluded, WorkCover (or a self-insurer) may arrange for you to undergo an independent medical assessment to determine if you have a permanent impairment. If you do they may make an offer of lump sum compensation to finalise all possible claims you may have for the injury. It’s important you speak to your lawyer before signing any documents to make sure you’re getting the appropriate amount of compensation.
- Consider the lump sum offer as compared to a common law damages claim (Stage 2): Seek advice from an expert in workers compensation damages claims because this decision is very important and cannot be changed once you have made the election one way or the other.
What is the common law damages stage?
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 personal injury.
A common law damages claim can only be accessed by rejecting a lump sum offer for an injury of less than 20% Degree of Permanent Impairment. However, if you were assessed at 20% DPI 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 workers only means of obtaining appropriate compensation to go towards compensating for permanent and ongoing loss caused by the work-related injury. Unlike the statutory claim stage, a damages claim is aimed at compensating you for the losses sustained as a consequence of your work-related injury into the future.
To establish a claim for damages, a claimant must prove four essential elements:
- A duty of care must have been owed by the wrongdoing party.
- Breach of that duty: The wrongdoers actions fell short of the required standard of care.
- Causation: The breach of duty can be linked to the harm suffered by the claimant.
- Damage: The claimant must have suffered actual loss, as a result, e.g. injury, loss etc.
- If you can establish these elements then, in general terms, you may have a right to commence a claim to recover damages for the loss sustained.
What damages are included in a common law claim?
The damages are assessed based upon the loss the worker has and will sustain in the future under a number of different heads of damage. “Heads of damage” are different types of damage a worker may suffer such as general damages (pain and suffering) and economic loss (past or future earnings). Ultimately an assessment of every claim is based upon what a claimant is entitled to under each different head of damage:
- Pain and suffering
- Special damages
- Care and assistance
- Economic loss, past and future
- Future special damages, care and support
Damages are an extremely important part of any assessment of a claim. People often have a right to claim, but the damages are just not significant enough to justify a claim, the cost, and time delays just are too much. We look outside the box to make sure everything possible is claimed.
Most cases settle out of court (about 90%); however this is sometimes not until claims have proceeded through the pre-court and court processes and the matter is nearing a trial. If your claim doesn’t settle during the pre-court processes, we will start proceedings in Court and will be by your side making this process as smooth as possible.
Get workers’ compensation claim advice
We know this can be a stressful and daunting time but we’re here to answer any questions you have to help provide clarity on your unique situation. Get in touch on 0731447143 to discuss your potential for a claim.
