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Work Injury Compensation Claims

If you’ve had an accident while working or if your health and wellbeing have been affected in the workplace, you may be eligible to make a claim for workers’ compensation. This applies to workers who have sustained injuries at or as a result of their job and includes any pre-existing injuries, illnesses or diseases that are worsened by the workplace.
You do not need to show that the employer was negligent for that purpose but you need to show that your work contributed to your injury.
Workers’ compensation in Queensland does not continue indefinitely. The aim is to provide you with assistance as endeavours are made to returning to work however once reasonable rehabilitation efforts have been undertaken and your condition is stable the claim can be ended by the workers’ compensation insurer.
Provided you act within three years of your injury being sustained you can, if your injuries were due to negligence on the part of your employer, bring a claim for damages for longer-term loss (a “common law claim”).
WorkCover Queensland is the default insurer of employers in Queensland for both the statutory workers’ compensation claim and common law claims. Employers are required to take out workers’ compensation insurance.
Larger employers can apply to become self-insurers.
Self-insurers in Queensland include local Councils, Coles Group Limited, Woolworths Limited, Wesfarmers Limited, Westpac Banking Corporation, Queensland Rail Limited and BHP Group Limited.
Commonwealth employees are covered by a different scheme and different legislation (Comcare).
WorkCover Queensland acts as claims manager for the State of Queensland.
The governing legislation is the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”).
The WCRA, in addition to dealing with the statutory claim also contains provisions in relation to the conduct of common law claims by an injured worker against their employer including provisions in relation to liability and the damages recoverable.
Claims in relation to motor vehicle accidents are covered by the Motor Accident Insurance Act 1994 (“MAIA”) and the Civil Liability Act 2003 (“CLA”).
Other claims are covered by catch-all legislation being the Personal Injuries Proceedings Act 2002 (“PIPA”) and the CLA.
This might include a slip and fall, poor medical treatment or a work injury to the extent to which the claim is against someone other than your employer.
At times it may be advisable to bring claims against the same party under two separate Acts and at times it will be necessary to bring claims under multiple Acts because there are claims against multiple parties.
Common examples are injuries on commercial construction sites and injuries sustained while employed through a labour hire company.

Frequently Asked Questions

Got a question? Get your answer.

  1. Seek medical attention. Be aware that your employer has insurance which will fund treatment, including emergency treatment at a private hospital. Use your own general practitioner and do not rely upon doctors nominated by the employer.
  2. Ensure that your injury is reported at work. Do not sign any version of the accident in an incident report or investigation report if you do not agree with the description of the accident;
  3. Make an application for workers’ compensation. This can be done online or through paper form and also requires a medical certificate in the workers’ compensation format;
  4. Retain any available evidence as to the circumstances of your accident including:
    1. photographs of the accident scene or the equipment involved or of changes to the system of work initiated after your accident.
    2. Details of any witnesses, whether to the accident or to the work processes which caused the accident;
    3. photographs of any visible injuries.
      Keep the evidence secure. If the evidence is photographs or video on a phone or camera, back the material up to another device.
  5. Ensure that those people who will be recording the circumstances of your injury understand those circumstances, particularly where the work processes are difficult to understand, or you, or the person recording the incident have limited English. You may wish to take a friend or relative with you to explain the accident when you first see a doctor. If the work process is something which is hard to describe or outside most people’s experience, then photographs or video either of the actual work process and accident site or something similar found on the internet may assist.
  6. If you are suffering emotionally, either due to the traumatic nature of the accident or your pain and changed circumstances as a consequence of your injuries, speak to your doctor about possible referral to a psychologist or psychiatrist. The workers’ compensation insurer can fund that treatment also.
  7. Call AMK Lawyers about your legal rights, remembering that time limits do apply. Complete this enquiry form or call us directly.

Employees are covered by the scheme even though they might be employed on an ABN. They are covered whether they are permanent or casual, full-time or part-time.

In terms of workers under an ABN there are both a number of specific statutory provisions about who are, and who are not, workers and general law provisions, adopted by the legislation, based on such things as:

  • The extent to which the employer controls the work performed including when, where and how the work is performed,
  • Whether the worker is paid by the hour, or perhaps piece rates or whether the worker is paid to achieve a particular result and has responsibility for fixing the work (without additional reward) if it is defective.
  • Whether the worker performs work only for the one company;
  • The extent to which the worker is integrated into the business and held out to be an employee are also factors.

Where the worker provides substantial equipment or is paid to produce a certain object or outcome they more likely to be regarded as not being an employee.

Company directors and “shadow directors” are not covered. Trawler hands who receive their income as a share of the catch are not covered.

In order to bring a statutory claim, it is generally sufficient that you sustain your injury in the course of your work.

In most circumstances however, it is necessary for work to be “a significant contributing factor” to your injury. Therefore, if work is simply the place where the accident happens you might not be entitled to workers’ compensation.

For example, if you happen to be at work when you receive a telephone call in relation to a tragedy affecting a family member, and suffer a psychological injury or heart attack, a workers’ compensation claim is not likely to be available.

The statutory scheme is extended to some circumstances when people are not carrying out their work duties and work does not need to be a significant contributing factor in those circumstances. This includes injury suffered during a recess and injuries suffered during a journey to and from home.

A statutory claim can be brought if you are travelling from home to work or from work to home provided that there is no substantial deviation from, or interruption of, the journey. The coverage commences/stops at the front gate of your residence.

A pure psychological injury will not fall within the definition of injury under the WCRA if the only significant work contribution to the development of the condition relates to “reasonable management action taken in a reasonable way”. If an employer has grounds for disciplining, demoting or reassigning a worker (or to have a firm discussion with them) and carries out its investigation and decision making in an appropriate manner but the worker still suffers a psychological injury, the worker will not have a right to workers’ compensation for that injury.

By “pure psychological injury” we mean a psychological condition arising directly from events experienced rather than, for example, an adjustment disorder suffered because someone has a physical injury and experiences pain, poor sleep, restrictions in work and recreation, and concerns about their financial future, as a result of the physical injury.

If the employer has grounds for taking some action against an employee but does it in an unreasonable way or there is some other significant work contribution to the psychological condition which is not covered by this exception, then the psychological condition is still a work injury within the meaning of the WCRA.

There is uniform national legislation providing a multistep analysis for determining which State’s insurance scheme covers accidents with multistate aspects, for example a long-distance truck driver based in Queensland who suffers an injury at a delivery site in Victoria.

If one test does not provide a clear answer the examination moves on to another test. The initial test is where they normally work and the second is where the worker is based and where they are provided with instructions.

In addition to any protections you may have under the Fair Work Act, you have a specific 12-month protection under the WCRA against dismissal because of your work-related injury.

If your employer does not have suitable duties for a graduated return to work program during the rehabilitation phase, WorkCover can arrange for a host employer.

Employers, wanting to rid themselves of an employee, will commonly have a discussion with the employee in which they say that it looks better on the worker’s records when approaching future employers if they resign “to pursue other interests” rather than being dismissed.

There are a number of reasons not to accept that proposal including:

  1. If you are still on workers’ compensation WorkCover may say that you have interfered with your own rehabilitation by removing a possible work source and suspend or terminate your weekly compensation;
  2. If you do bring a common law claim the employer is likely to assert that your loss of income up to the date of any conference is not due to your injuries but rather due to your decision to resign from stable employment;
  3. If the employer is intent upon terminating your employment it may seek protection in terms of any unfair dismissal application by seeking a report, usually from an occupational physician, to the effect that you are unable to perform the essential aspects of your job, which will be a helpful report for any common law claim.

In Queensland leave entitlements continue to accrue while you are on workers’ compensation.

Whether or not the employer is required to continue to contribute towards your superannuation payments while you on workers’ compensation depends on the particular award you are covered by.

If the employer contributions to your superannuation stop your superannuation fund will, unless you direct them otherwise, cease paying premiums on any insurance policies they hold for you. If you wish to keep those policies in place you need to contact your super fund in that regard.

The application for workers’ compensation can be completed online or in paper form. It needs to be accompanied by a medical certificate in the workers’ compensation format.

The WCRA provides that the application for compensation needs to be made within six months of a determination by a doctor that you have a work-related injury requiring either treatment or time off work or both.

Benefits are normally only backdated by a maximum 20 business days from the making of the application.

Both time periods can be waived in some circumstances and the decision to waive or not waive the time limits is a reviewable decision.

There is a three-year limitation period in relation to common law claims for damages for personal injuries in Queensland. This means that if you suffer an injury on, say, 30 April 2021 you need to bring a claim by 30 April 2024. A failure to do so will generally provide the party responsible for your accident with a complete defence.

Starting the pre-Court process under the MAIA or PIPA does not in itself stop the three years ticking away.

Serving a compliant notice of claim under the WCRA entitles you to commence court proceedings within 60 days of completion of the pre-court process, without a limitation period defence being available to the employer.

In general terms, a notice of claim for damages cannot be lodged against your employer until you have a notice of assessment from WorkCover Queensland. As the WCRA prevents the damages claim being served until the notice of assessment issues, there are provisions to the effect that:

(a) if a notice of assessment issues within the last six months of the limitation period, then the limitation period is extended to a date six months after the issue of the notice of assessment;
(b) if you request a notice of assessment prior to the expiration of the normal limitation period, then even if the notice of assessment issues after the normal limitation period has expired, the limitation period extends to a date six months after the issue of the notice of assessment.

There is a similar extension if a statutory claim is made and the injury has not been accepted by the time the normal limitation period expires. If the statutory claim is finally accepted after all review and appeal processes are finalised, the limitation period is extended to a date 6 months after the process is completed.

For claims under the MAIA and PIPA there is an obligation to lodge a notice of claim within one month of consulting a lawyer (MAIA) or providing instructions to a lawyer (PIPA) or within nine months of the accident, whichever occurs first.

This is not as critical as the three-year limitation period but failing to meet the obligation can create difficulties.

If the notice of claim is not delivered in those required times the notice of claim should still be served, together with an explanation for the delay.

If the respondent has lost the opportunity to gather evidence, for example a witness can longer be contacted or premises or equipment have been changed, the respondent could attempt to rely upon that prejudice to prevent you pursuing a claim.

Even if there is no such prejudice, if the respondent asserts that there is no reasonable excuse for the delay and asserts that the notice of claim is therefore non-compliant, it can lead to the incurring of additional unnecessary costs.

If you are under 18 years of age when you are injured, the limitation period commences when you reach 18 years of age. This means that the limitation period expires on your 21st birthday.

This is because the person does not have “legal capacity” while they are a minor. Some people can lack “legal capacity” even when they are adults. They may have had a severe intellectual disability prior to their accident or they might suffer an immediate loss of capacity as a consequence of the accident itself. An incapacity arising from the accident will only stop the limitation period running if that incapacity commences with the accident and is continuous thereafter.

Work injuries, more than other types of injuries, may arise over a period of time whether that is by breathing in disease-causing dust, repetitive heavy work or unnecessarily stressful conditions.

There are some special rules relating to dust diseases.

Generally, in relation to injuries over a period of time the limitation period will gradually exclude more and more of the claim. If:

  • you commence working for a company in 2015;
  • you start developing symptoms in November 2022;
  • you are diagnosed with a condition and put off work in March 2023;
  • you performed substantially the same tasks for some 7 to 8 years and the medical view is that it is work over the whole 7 to 8 years which has caused your injury, and;
  • you bring a claim in July 2023.

the starting point is that the employer has a defence in relation to your claim to the extent that your injury was caused by work prior to July 2020 which may significantly reduce your damages.

But I just found out my injury is serious.

 

There is a provision for an injured person to seek an extension of the limitation period from a court in respect of a personal injury claim in limited circumstances.

Provided there is no substantial prejudice to the respondent in that regard the court may extend the limitation period to a date 12 months after some key information comes within the injured person’s means of knowledge which makes it worthwhile bringing a claim when, before that information became available, it would not have been worthwhile making a claim.

This is referred to in the relevant provisions of the Limitation of Actions Act 1974 as a “material fact of a decisive nature,” (in some other States the limitation period only commences to run when you are aware of grounds for a claim).

It is necessary to act promptly in those circumstances and to secure the cause of action by in some way stopping time from running within that 12-month period. It is not necessary to obtain an order of the court for the extension of limitation period within the 12 months but rather court proceedings should be issued or, in the context of a WCRA claim, a compliant notice of claim served within the 12 months. If a Court subsequently extends the limitation period to a date after the commencement of the court proceedings the defendant doesn’t have that defence.

You should avoid relying upon obtaining such an extension of the limitation period where you can take steps to preserve the normal limitation period.

If the new information, while important, does not change the case from one not worth pursuing to one worth pursuing, you will not obtain an extension of limitation period. If you had a recognised work injury two years ago and you have been off work ever since and not receiving any compensation for 18 months then you already had a worthwhile claim more than 12 months ago.

In terms of whether the information was within the means of knowledge of the injured person the test is an objective one, but an objective one having regard to the background of the injured person.

If your doctor expresses real concern in relation to your injury and gives you a referral for scans and stresses the importance of you arranging those scans and you do not arrange for the scans for 15 months you are unlikely to be able to rely upon the results of the scans as providing a material fact.

On the other hand if you know little in relation to medical matters and you make repeated attendances on a doctor who does not give you a referral for a scan, it is likely that a court would accept that it was reasonable for you to rely upon your doctor in that regard, and should another doctor subsequently refer you for a scan which shows a more serious injury than anticipated, it is likely that the information provided by the scan would not be regarded as previously within your means of knowledge.

The new information might not be about the nature of your injury. It might be information about consequences of your accident, the link between your work and your injury, or evidence of negligence on the part of the employer.

You cannot commence a common law claim until you receive a Notice of Assessment. A Notice of Assessment is issued as part of the ending of a long-running workers’ compensation claim but otherwise must be specifically requested.

The basic steps in a common law claim after receipt of a Notice of Assessment are outlined below, which are required to be undertaken as part of the pre-Court process.

  1. Lodge a Notice of Claim Form on the workers’ compensation insurer.
  2. The Insurer responds to Notice of Claim Form with a Compliance Response.
  3. The parties gather information and documents from third parties about the nature and extent of the injuries, such as medical records, photos, and the like.
  4. The Insurer investigates the circumstances of the accident and provides a Liability Response.
  5. The parties arrange independent medical examinations. AMK Lawyers have dedicated medico-legal experts who are very experienced and respected.
  6. The parties hold a Compulsory Conference with the assistance of a senior Barrister who can provide a second opinion regarding compensation.
  7. If the claim does not settle at a Compulsory Conference, the injured person starts Court proceedings.

As experienced personal injury lawyers we will guide you through the steps above and make the process very simple. Not all these steps need to be taken and matters can settle without the need to attend a settlement conference, thereby reducing costs.

In each case, AMK Lawyers will work with you to understand the circumstances surrounding your injury and then advise you on your prospects for achieving a successful common law damages claim. This claim could be used to compensate you for pain and suffering, medical expenses, physical or emotional rehabilitation needs, other direct expenses, plus loss of past and future earnings including overtime and (in some circumstances) care claims.

The amount of damages you receive will depend on a combination of factors including the nature and extent of your injuries, your age, your loss of earnings and likely loss of earnings in the future, your out-of-pocket expenses and any future expenses.

It is important to understand that every claim is unique, and it is very difficult to predict what a claim may be worth until we have gathered all the necessary information/documentation we need as part of the process to assess a claim. The seriousness of your injuries and how they impact your daily life and work capacity can provide some guidance.

Many clients are concerned about whether their matter will end up in Court. This can cause anxiety and stress. The good news is that statistically speaking 99% of matters are resolved without the need to go to Court. As such, there is very little chance your matter will need to go to Court to be finalised.

Most matters are normally resolved at the compulsory conference with the workers’ compensation insurer and failing this at a Mediation after a claim in instituted in Court. A claim being instituted in Court does not mean that your matter will go before a Judge, and there are many opportunities to resolve a claim in this stage. We will explain this further when we speak with you.

It can take around 12-18 months to resolve a claim, but it can take up to 3 years.

Much will depend on the nature and extent of your injuries as the key evidence we need to resolve your claim comes in the form of Medico-Legal reports. We cannot obtain such repots until your injuries are deemed stable and stationary (also known as maximum medical improvement).

For minor injuries and where there is no dispute as to who caused the accident, we can resolve such claims quicker, but if the injuries are severe and there are questions regarding the circumstances, it can take longer to finalise a claim.

The key factors which can impact the length of a claim are generally as follows:

  • The nature of the injuries
  • The recovery time from such injuries
  • The attitude of the Insurer toward a settlement process
  • Length of time it takes to obtain evidence in support of your claim.

At AMK Lawyers we can discuss the expected timeframe regarding your claim when you first chat to us.

Simply speaking, you will only be charged if you receive a settlement outcome. Our promise to you is that we are prepared to take the risk of running your claim, with absolutely no cost to you, if for whatever reason, your outcome is unsuccessful.

We will cover all the costs of running your claim, known as disbursements, until the successful settlement of your matter.

We are happy to help you make a claim on a No Win / No Fee basis. No interest, no uplift fees, no litigation lending arrangements and no surprises. We never charge any additional fees for taking on that risk, and this sets us apart from other law firms, who charge 25% uplift fees.

Helpful links:

WorkSafe – Queensland Government
https://www.worksafe.qld.gov.au/
Disclaimer: This information is designed for general information in relation to Queensland compensation law and does not constitute legal advice. We strongly recommend you seek legal advice in regard to your specific situation. For help understanding your rights, please call 07 3136 3287 or 0431 374 476 to talk to one of our lawyers today.