Information on Worker's Compensation Claims
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What is a WorkCover Premium and how is it calculated?
If you own a business in Queensland and employ workers, you must insure them against work-related injury or illness. Unless you are a self-insurer, you need to take out an insurance policy with WorkCover Queensland.
WorkCover Queensland offers several different insurance policies. If you are an employer in Queensland, you will be looking to take out an Accident Insurance Policy which covers you and your workers if a work-related injury or illness occurs and there is a need to claim workers’ compensation. This includes both damages (at-fault) claims and no-fault statutory claims.
The cost of your accident insurance policy will depend on several matters including:
- The amount your business pays in wages;
- Your claims experience (the cost of any injury claims against your business);
- Your industry.
You will pay your insurance premiums “provisionally” which means you will pay them at the start of the financial year, and they will be adjusted at the end if needed.
For a new policy, WorkCover will ask you to declare your estimated wages for the current financial year to work out how much you need to pay.
For an existing policy, WorkCover will need to know your actual wages for the previous financial year and the estimated wages for the current financial year. They will also consider the estimated wages for the previous financial year, which you would have already told them at your last renewal). If you under or overestimated your wages for the previous you, WorkCover will work out the difference and adjust the premium accordingly.
Other important factors considered in the calculation of premiums are your industry rate and your claims costs. The amount of wages you declare as an employer determines which model WorkCover Queensland will use to work out your premium. GST and stamp duty will also be added to your policy.
If you Pay $1.5 million or less in Wages
If your wage costs are $1.5 million or less, the policy premium is calculated by WorkCover using their simplified model. You are given a rating based on your claims costs from the previous financial year. Accordingly, the safer your workplace is and the more proactive you are in managing your claims, the better your rating is and the lower your premium.
WorkCover work out your premium by multiplying your wages by your industry rate, which you can find listed in the Queensland Government Gazette.
The industry rates are worked out based on the claims costs of all employers in the same industry and the percentage industry rate you’ll pay depends on the policy rating you’ve been given.
If you keep your claim costs down by creating a safer work environment, this can improve your policy rating and reduce the premiums you pay.
To the contrary, if your claim costs increase, this will negatively affect your policy rating and your insurance premium may increase.
If you Pay more than $1.5 million in Wages
If your wage costs are more than $1.5 million, WorkCover will work out your premium using an experience-based rating (EBR).
This means WorkCover will look at the wages for your business, the industry rate and
business performance when calculating what you will pay and what your claim costs might be next year.
When looking at performance, WorkCover will consider your claim experience, namely, the cost of claims against your business. They will consider a total of 4 years’ claims costs as follows:
- Statutory claims for the previous 3 years;
Common law claim costs for the 1 year before those 3 years.
What can effect the amount of the premium?
Creating a safer workplace by looking after your workers can help to lower your accident insurance policy premiums. This is because it results in few workplace injuries and WorkCover claims. The lower your claims costs are, the better your policy rating and the lower your premium.
Furthermore, if you employ an apprentice or multiple apprentices in your business, you are eligible for a discount on your insurance premium. The discount workers by excluding (not counting) any wages paid to an apprentice from the premium calculation. As the amount wages paid by your business is a large part of working out your premium, this will result in a cheaper insurance premium. Your apprentices will still be covered for injury or illness by the policy.
Our expert team at Queensland Workplace Law can work with you to provide advice and guidance on the best way to try and minimise insurance premiums payable by your business.
What should I do if an employee is injured at work?
Injuries or illnesses can happen in the workplace as a result of work-related incidents. Some can be serious or life-threatening, and others less serious, but they still need to be managed correctly.
A work-related injury can include physical injuries, psychological disorder, diseases, or even death. These can happen when an employee is at work, whilst they are traveling to or from their job or are on a scheduled break, or as a direct result of them doing their job.
If you are an employer, and a work-related injury or illness happens to one of your workers, there are certain steps you must take immediately. These include the following:
- If one of your workers is injured at work, you must make contact with them as early as possible after the injury to ensure that the necessary first aid is provided, and make sure that the injured person gets the right medical attention.People’s safety and well-being is the absolute priority. You will need to make sure
there is no danger to yourself or anybody else around the incident site. - As an employer, you are legally required to keep a record of all workplace incidents and injuries which occur. As part of setting up your business, you will have created a process for your workers to follow if incidents or injuries happen at work, so they
know what to do. - As an employer, under work health and safety laws and workers compensation laws, you must advise WorkCover Queensland that the workplace injury has happened, regardless of the severity of the work-related injury that’s happened.
All employers must report injuries sustained by workers for which workers
compensation may be payable by their workers’ compensation insurer regardless of whether the worker makes a claim, and even if you do not agree the injury is compensable. If you are a self-insurer, you need to let your insurer know.
As an employer in Queensland, you must lodge a report to WorkCover Queensland within eight (8) business days of becoming aware of it. This is usually through completion of an Employer’s Report form. - An employee should start their claim with WorkCover Queensland (or talk to an employer if they are self-insured), however, an employer can also start the workers compensation claim process on behalf of the worker if they have their consent to do so. This can be done by submitting a claim form (unless you are self-insured, as you will manage your own workers’ compensation claim), or by talking to a member of the WorkCover Queensland team over the telephone.
You will need the following information:- Your worker’s full name, date of birth and personal contact information;
- Your policy number – if you are not sure of this, you can provide your
business name, ABN or ACN; - The type of injury and details about how and when it happened;
A copy of the worker’s work capacity certificate; - Normal weekly earnings wage figures and working hours for the worker (if they are taking time off work). You will also need the amount payable under your worker’s industrial agreement.
- As an employer, you must work together with your injured worker to get them back to work quickly and safely, if possible. This is an important part of an injured worker’s recovery and helps them to get life back to normal quicker.
It is a team effort between your injured employee, WorkCover (or a self-insurer) and the medical or rehabilitation provider.
By understanding an injured worker’s injury and being prepared to be flexible, you
can strike a balance between what’s right for your worker and what’s good for your
business.
Reporting to Workplace Health and Safety Queensland (WHSQ)
If one of your workers has experienced a work-related injury or illness, you may need to notify Workplace Health and Safety Queensland of the incident under work health and safety laws. You must notify Workplace Health and Safety if any of the following happens at your place of work or is caused by the running of your business:
- The death of a person;
- A serious injury or illness of a person. This is defined in work health and safety laws as:
- as an injury or illness requiring the person to have;
- immediate treatment as an in-patient in a hospital;
- immediate treatment for the amputation of any part of his or her body, a serious head injury, a serious eye injury, a serious burn, the separation of his or her skin from an underlying tissue (such as de-gloving or scalping), a spinal injury, the loss of a bodily function, serious lacerations;
- medical treatment (treatment by a Doctor) within 48 hours of exposure to a
substance;
- any infection to which the carrying out of the work is a significant contributing factor, including infection that is reliably attributable to carrying out work with micro- organisms, that involves providing treatment or care to a person, that involves contact with human blood or body substances, that involves handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products;
- the following occupational zoonosis contracted in the course of work involving the handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products: Q fever, Anthrax, Leptospirosis; Brucellosis; Hendra Virus, Avian influenza, Psittacosis;
- as an injury or illness requiring the person to have;
- A dangerous incident. This is defined in work health and safety laws as an incident in a place of work that exposes a worker, or any other person, to a serious risk to their health or safety from an immediate or imminent exposure to:
- An uncontrolled escape, spillage or leakage of a substance;
- An uncontrolled implosion, explosion or fire;
- An uncontrolled escape of gas or steam;
- An uncontrolled escape of a pressurized substance;
- Electric shock;
- The fall or release from a height of any plant, substance or thing;
- The collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for sue in accordance with the regulations;
- The collapse or partial collapse of a structure;
- The collapse or failure of an excavation or of any shorting supporting an excavation;
- The inrush of water, mud or gas in workings, in an underground excavation or tunnel;
- Any other event prescribed under regulation, but does not include an incident of a prescribed kind.
Reporting to Electrical Safety Office
Pursuant to electrical safety laws, you must notify the Electrical Safety Office if any of the following happens at your place of work or is caused by the running of your business:
- A serious electrical incident (this is defined as a an incident involving electrical equipment if a person is: (a) killed by electricity; (b) receives a shock or injury from electricity and is treated for it by, or under the supervision of a doctor; (c) receives a shock or injury from electricity at high voltage, whether or not the person is treated for it by, or under the supervision of, a doctor).
- A dangerous electrical event (this includes: (a) when a person, or any reason, is electrically unsafe around high voltage electrical equipment, even if the person doesn’t receive an electric shock or injury; (b) significant property damage caused by electricity or something originating from electricity such as fire caused by electricity; (c) unlicensed electrical work; (d) unsafe electrical work; (e) unsafe electrical equipment or electrical equipment that doesn’t have electrical equipment safety system approval markings).
Our legal team at Queensland Workplace Law can assist your business by providing expert advice should one of your workers have been injured at work.
What should I do if I’m informed that an employee has made an application for compensation?
If you are informed that an employee has made an application for compensation, you will need to send an Employer’s Report form to WorkCover within eight (8) business days of learning of the worker’s injury. An employer should make sure all the questions are answered and enough information is provided on this form, as a decision on a claim will be delayed if WorkCover does not have all the information needed.
Every claim made by an employee for workers compensation goes through a decision- making process. WorkCover Queensland, or a self-insurer, will consider the following questions when deciding a claim:
- Has the claim been made in the right time frame?
- Was the person claiming working for the employer when they were injured?
- Is the person claiming considered to be a worker?
- Did a work-related incident cause the injury?
- Was the person’s job a significant contributing factor to the injury (this means a large part of the cause)?
To help WorkCover to reach a decision on a claim, they may wish to speak with you.
As an employer, you can respond to an employee’s statutory claim with your responses. It is important to respond to any investigation by WorkCover and to provide all details from the business’ perspective.
You may want to commence your own investigation if you have not already done one to ensure that you have all the evidence you require to respond to the claim. WorkCover will not investigate the facts and circumstances of the claim, therefore, it is up to you to provide evidence in response to the employee’s claim. WorkCover will also not actively speak to witnesses themselves.
Under workers’ compensation legislation, an employer has a responsibility to ensure that all information relation to a statutory claim is true, accurate and not misleading.
WorkCover will contact the person nominated on your Employer’s Report form as soon as a decision is made. Most claims are decided within two (2) weeks, however complex claims may take longer.
If WorkCover accept the application, the injured worker will receive compensation benefits and start rehabilitation, if it is needed. Depending on the injured worker’s injury, these benefit may include:
- Medical treatment costs (for example, doctor and physiotherapy expenses);
- Hospitalization costs;
- Weekly compensation payments;
- Rehabilitation costs; and
- Lump sum compensation for any permanent impairment.
If you do not agree with WorkCover’s decision regarding an employee’s WorkCover claim, you can dispute their decision through an appeal process (refer to “Can I Challenge a Decision by WorkCover to accept a claim”).
Our legal experts at Queensland Workplace Law can assist you with the statutory claim process should one of your injured workers lodged a claim and ensure the best outcome is achieved for your business.
What should I do if I get a request from Work Cover for information about an employee’s rate of pay?
If an injured employee’s workers compensation claim is accepted by WorkCover or a self-insurer, they will be able to receive weekly compensation for lost wages. This will be paid like wages normally would.
WorkCover will ask an employer to provide wages information, such as payroll reports or payslips to calculate the normal earnings and how much to pay an injured worker for weekly compensation. Therefore, it is essential that you comply with any such request.
When a claim is received, WorkCover will ask an employer to send the following via their secure online services:
- An itemised payroll report for 12 months before the date of injury. The report must show each payment including wages, penalties and allowances for each pay period;
OR
- Payslips for 12 months before the date of injury (or from the date the employee started employment, if less than 12 months).
Providing wage information is all an employer will need to do, WorkCover will take care of the calculation, using the payroll or payslip information provided. WorkCover will then confirm the payment amounts to you as the employer, and the injured worker.
If you are concerned with a calculation, WorkCover can be contacted via telephone to step you through the calculations. If they are unable to resolve your concerns, WorkCover can provide a written explanation and you can seek a review of the decision with the Workers’ Compensation Regulator.
Employer Excess
As an employer, you will need to pay an insurance excess if you worker has taken time off work due to their injury, their worker’s compensation claim is accepted and they receive weekly compensation.
The worker’s normal weekly earnings are one of the things that WorkCover consider when determining an employer’s excess. As an employer, you will pay your excess to the injured worker as their first payment of weekly compensation. You will need to pay the excess within ten (10) business days of being notified. If you don’t do this, WorkCover will pay the worker for you and then recover the excess from you, along with any penalty pursuant to section 66(6) of the Workers’ Compensation and Rehabilitation Act 2003.
Our legal team at Queensland Workplace Law can give you accurate advice with relation to the calculation of an employee’s rate of pay under a worker’s compensation statutory claim and any excess which becomes payable by you as the employer.
What is a Return to Work Plan and what does it mean?
WorkCover Queensland (or a self-insured employer) will work together with the injured worker, an employer and the injured worker’s doctor to formulate a Return to Work Plan.
It is a written document which outlines how an injured worker, an employer and an injured worker’s doctor will work together to get the employee back to work safely and quickly in a way which works for the employee and the employer. An employer has an obligation to help an injured worker return to work safely if they can, and this is part of the employee’s rehabilitation.
The Return to Work Plan is unique to an injured worker and their situation. When developing the Return to Work Plan, WorkCover will decide with the injured worker what their goals are, the steps to take to reach them and how long it may take. They will consider how the injured worker is feeling and the tasks that an employee and their doctor or specialist say they can or cannot do due to their injury or illness.
The Return to Work Plan will include any suitable duties or alternative duties, which an employer has for an injured worker if it is not safe or possible for them to perform the tasks that were part of their normal job.
The Return to Work Plan can include the following detail:
- An employee’s personal details as well as details of a support person and
rehabilitation and return to work co-ordinator; - The start and finish date of the suitable duties program;
- An employee’s return to work goals;
- Any ongoing medical treatment the injured worker may need;
- The ‘stages’ of return to work as recommended by the injured worker’s doctor;
- An injured worker’s physical or psychological capacity to perform tasks/duties;
- Specific work tasks/duties which the injured worker should avoid;
- Any changes which are required in the workplace to support the injured worker;
- A date for review of the Return to Work Plan.
The employer’s role in assisting the implementation of various stages of rehabilitation and return to work plans is critical to achieving a successful outcome. The employer has the responsibility for:
- Taking all reasonable steps to assist with rehabilitation at the workplace including informing managers, supervisors and co-workers of the existence of rehabilitation programs including a Return to Work plan;
- Ensuring appointed rehabilitation and return to work co-ordinators perform their functions;
- Developing suitable duties programs for individual workers;
- The facilitation and co-ordination of the suitable duties programs at the workplace.
Our team at Queensland Workplace Law can provide you with expert advice as to the best way to accommodate your injured worker in your workplace and ensure that the Return to Work Plan is suitable to you as the employer.
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What happens if an employee needs to take time off work to attend a medical appointment?
Whilst an employee can be encouraged to arrange medical appointments outside of work time, if an injured worker requires time off work to attend a medical appointment, the employer must support this, as the time taken to attend the health practitioner appointment is reasonable, given treatment requirements and the nature of the injury.
If an injured employee is required to take time off work to attend a medical appointment, and the appointment is in relation to their work-related injury or condition, they are entitled to be paid by the workers compensation insurer for lost wages. Furthermore, if the WorkCover insurer organises an appointment for a worker to be assessed by an independent medical examiner, they are entitled to be compensated for lost wages. The injured worker should ensure that this time absent from work is covered by the WorkCover Certificate of Capacity/Medical Certificate.
Can I challenge a decision by Work Cover to accept a claim?
If you are an employer who is unhappy with a decision made by WorkCover to accept a worker’s compensation claim, you may be able to ask the insurer for a Reasons for Decision document within 20 days of being advised of the decision.
An employer is then able to lodge an application for review with the Workers’ Compensation Regulator who is responsible for undertaking reviews of insurer decisions in Queensland, pursuant to Chapter 13 of the Workers’ Compensation and Rehabilitation Act 2003. The application for review must be lodged within 3 months of receiving the insurer’s written decision.
The employer lodging the application for review is referred to as the Applicant. The other party to the review will be the worker, if an employer has lodged the review.
When an application for review is submitted, you will be required to explain why you consider WorkCover’s decision to be wrong and provide any supporting documents (including medical reports, witness statements, photographs etc).
This review function of the Workers’ Compensation Regulator is delegated to and
undertaken by the Office of Industrial Relations, which aims to provide an independent, prompt, non-adversarial review of certain decisions made by insurers.
The review process is not a court process and it involves a review by a Review Officer. The Review Officer will look at all of the documentation available in relation to the worker’s application for compensation. The Review Officer will not re-investigate an application for compensation and will not request further information from the Applicant or other party.
The Workers’ Compensation Regulator has 25 business days to decide the outcome.
What is the Workers’ Compensation Regulator?
The Workers’ Compensation Regulator is responsible for undertaking reviews of insurer decisions pursuant to Chapter 13 of the Workers’ Compensation and Rehabilitation Act 2003, and this function is delegated to and undertaken by the Office of Industrial Relations.
Any application for review of an insurer’s decision must be made within 3 months of receiving written notice of the decision, and the entity/business lodging the application is referred to as the Applicant.
The application for review:
- Must be made in the approved form and given to the Workers’ Compensation Regulator;
- Must state the grounds on which the applicant seeks the review; and
- May be accompanied by any relevant documentation the applicant wants considered in the review.
The Workers’ Compensation Regulator must, within 25 business days after receiving the application for review, review the decision and decide to:
- Confirm the decision; or
- Vary the decision; or
- Set aside the decision and substitute another decision; or
- Set aside the decision and return the matter to the decision-maker with the directions the Regulator considers appropriate.
Within 10 days after making a review decision, the Workers’ Compensation Regulator must give the Applicant and the decision-maker written notice of the review decision. If the review application relates to a decision by WorkCover to allow an application for compensation, the Workers’ Compensation Regulator must also give a copy of the review decision to the claimant or worker.
Our legal team at Queensland Workplace Law are highly experienced in dealing with matters before the Workers’ Compensation Regulator and can work with you to ensure you business achieves the best outcome.
What happens if a claim ends up in the Queensland Industrial Relations Commission?
If a worker, claimant or employer is unhappy with a review decision made by the Workers’ Compensation Regulator, they can lodge an appeal with the Queensland Industrial Relations Commission (QIRC). An appeal must be lodged within 20 business days of receiving notice of the review decision.
The Office of Industrial Relations defends the review decisions on behalf of the Workers’ Compensation Regulator in the QIRC, and the parties to the appeal are as follows:
- The appellant – the aggrieved party who files the appeal;
- The respondent – the Workers’ Compensation Regulator.
Employers are not permitted to be respondents in an appeal made by a claimant or worker.
The correct form to be used by a worker, claimant or employer lodging an appeal is a Form 9 WCR Notice of Appeal. The form is to contain “grounds of the appeal” and “facts relied on.” The review decision of the Workers’ Compensation Regulator which is being appealed will need to be attached to this form, however, no other documentation is to be provided. There will be an opportunity in the course of the appeal to provide any documents or evidence to be considered.
The WCR Notice of Appeal will need to be filed with the Queensland Industrial Relations Commission via in-person, facsimile, post or email.
Once the WCR Notice of Appeal has been lodged with the QIRC, the appellant will be required to send a copy to the Workers’ Compensation Regulatory Services (WCRS), who represent the Workers’ Compensation Regulator in the appeal. This must be done within 10 business days.
Following receipt of the appeal, an Appeals Officer at WCRS is allocated to manage the appeal for the respondent. A worker, claimant or employer can contact the Appeals Officer to ask questions or discuss the case with them, however, they will not be able to provide any legal advice.
If a worker has lodged an appeal, the Appeals Officer will contact an employer to discuss their position regarding the appeal and they will ask for the employer to nominate an appropriate contact person with whom the Appeals Officer can discuss the appeal. If an employer has any additional information which they believe may assist the appeal, they are able to provide this to the Appeals Officer. Furthermore, the Appeals Officer may request the employer provide necessary documents, evidence and statements that are relevant to the appeal.
In order to defend the review decision, the Workers’ Compensation Regulator may engage Counsel to appear at the hearing of the appeal. The legal Counsel advocates for the Worker’s Compensation Regulator and is instructed by the Appeals Officer. The legal Counsel, will in most cases, provide the Workers’ Compensation Regulator with advice on prospects of success and protect their interests. The legal Counsel and the Appeals Officer may confirm with an employer’s staff as potential witnesses in the appeal, and staff may be called to provide evidence in a hearing before the QIRC. If this is required, the staff will be issued with Attendance Notices. The Attendances Notices will detail the time and place that they need to attend the hearing. The hearing can be watched from a public gallery by employers or their legal representatives.
If an Appeals Officer receives any new information during the appeal process, details of or copies of the information may be provided to an employer for their response.
An appeal will go before the Queensland Industrial Relations Commission in two circumstances:
- For an initial conference: this is an informal meeting between the parties, and a Member of the QIRC, with an aim of helping all parties to understand their respective positions in the matter and may also be beneficial in providing information, and explaining the steps and procedures with regards to the process of these matters in the QIRC, including when the matter will be heard by the allocated Commissioner.
- For a hearing: hearings are formal and conducted in a court room. Witnesses are called, documents are tendered as evidence (exhibits) and parties make submissions. The length of the hearing will depend upon the complexity of the issue/s, the number of witnesses etc. Sometimes appeals can be resolved without needing to proceed to a hearing. If a hearing is required, it can be several months before the case is heard before the QIRC.
If an employee has lodged an appeal, it is strongly recommended that an employer engage legal representatives to sit with them in the public gallery to observe the hearing. This is so that any queries that the QIRC or the WCRS resulting from the hearing can be answered promptly.
Furthermore, having a legal representative present can assist an employer to understand the complexity or importance of new developments which can occur during the course of evidence before a hearing.
Settlement options are also sometimes presented shortly before or during an appeal hearing, and if an employer’s representative is not present, it may be difficult for the WCRS to effectively obtain an employer’s input to such suggestions.
The onus of proof is on the Appellant in the matter before the QIRC. This means that if you are appealing a decision, then you bear the responsibility of proving certain matters on the balance of probabilities. The balance of probabilities means that it is more likely than not to have occurred, meaning that the QIRC must be satisfied of the relevant matters on the balance of probabilities, to a comfortable degree, based on clear and cogent evidence (Briginshaw v Briginshaw [1938] 60 CLR 336).
The WCRS may decide that the appeal should be conceded or compromised rather than proceed to a hearing before the QIRC. If this occurs, the Appeals Officer will contact an employer to explain the reasons for the Regulator’s position, the employer’s rights, proposed orders the QIRC will issue and what will happen next for the worker’s claim. This information will also be provided in writing by the Appeals Officer.
If a matter proceeds before the QIRC for a hearing, they are conducted before the appeal body as a “hearing de novo”, i.e. a full hearing of all issues in dispute. The hearings are recorded and transcribed. There is no jury, and the Commissioner will hear both sides of the appeal and make a decision either on the day or at a later date based on the facts and evidence presented during the hearing.
An Appellant may be required to pay appeal costs if:
- They engage a solicitor or other representative to assist in the appeal;
- Their appeal is unsuccessful and the QIRC orders appeal costs against the appellant.
Any costs order made by the QIRC will be paid according to section 133 of the Workers’ Compensation and Rehabilitation Regulation 2014 and Schedule 2, Part 2, scale C of the Uniform Civil Procedure Rules 1999. They will not cover a party’s entire legal costs.
If an Appellant or Respondent is not happy with the QIRC decision, an appeal can be lodged with the Industrial Court of Queensland. This is to be filed within 21 days of the decision using a form “2A- General Application to Industrial Court of Queensland”. A decision of the Industrial Court of Queensland is final.
Our legal team at Queensland Workplace Law are highly experienced in dealing with appeals before the Queensland Industrial Relations Commission and available to assist your business to be well prepared and achieve the best possible outcome.
What is the difference between a “statutory” claim and a claim for “common law damages”?
If a worker has experienced a work-related injury or illness, they may be able to make a claim for workers’ compensation with WorkCover, or a self-insurer. This is generally regardless of who or what caused the work-related injury (non-fault based) and is called a “statutory” claim.
If you have the worker’s consent, as an employer, you can start the “statutory” claim process on their behalf by submitting a claim form.
An application for workers’ compensation must be lodged within six (6) months of the injury occurring. If the injury is sustained over a period of time, it can be lodged within six (6) months of attending upon a doctor with relation to the injury. This time-frame can only be waived in a very limited range of circumstances.
If WorkCover or a self-insurer accepts the application for workers’ compensation, the injured worker will receive compensation benefits, which may include the following:
- Weekly compensation payments for wages;
- Medical treatment costs (for example, doctor and physiotherapy);
- Hospitalisation costs;
- Travelling expenses;
- Rehabilitation costs; and
- Lump sum compensation for permanent impairment.
If someone was responsible for a worker’s injuries, they may take the matter further than a statutory claim and lodge a common law claim for damages.
WorkCover Queensland cover these claims for damages and the common law claim involves the injured worker suing their employer if they feel they contributed to the injury through negligence. The claimant/injured worker is alleging through this claim that the employer didn’t provide a safe work environment and they breached their duty of care to the worker. The onus of proof is on the worker to prove this breach caused injury, pain and suffering and usually a loss of income. A loss of income includes any past and future earning capacity, namely what an injured worker would have earned in the past if they hadn’t been injured, and what they may have earned in the future.
When a decision is made to lodge a common law claim for damages, the worker’s ‘no-fault’ statutory claim for workers’ compensation (if one was made) will end.
A worker or their lawyer will lodge a Notice of Claim for Damages form to commence the common law claim. This form describes the allegations of negligence they are making against their employer and is lodged with both WorkCover Queensland and the employer. It generally needs to be done within three (3) years of the date a worker was injured.
After the common law claim is lodged, the claim will enter pre-proceeding phase and during this time WorkCover or the self-insurer will investigate the claim and then either admit or deny whether the employer is liable for the injury. The injured worker may be required to attend upon medical appointments, and the quantum (value) of the claim is investigated by way of medical reports, employment records and other relevant information.
If an injured worker, or an employer have relevant information relating to the common law claim, it must be shared through a process called “disclosure”.
If employer fault is identified, informal negotiations may start, and lawyers can discuss whether a claim can be resolved informally without going to court. If an agreement is not reached during informal negotiations, the next step is called a Compulsory Conference. This is a meeting between an injured worker and others involved in the matter, including an employer or other third parties. During this meeting, everyone will discuss the incident which caused the worker’s injury and who should be at fault or found liable. The amount of damages will also be discussed which will include the following:
- Pain and suffering damages: the amount of damages given for pain and suffering is formally defined in the legislation depending on the type and severity of the injury;
- Past and future wages or economic loss: the amount of damages if a worker has lost income because of the injury, or this might happen in the future;
- Past and future medical costs: if an injured worker is assessed as requiring ongoing medical treatment, past and future medical costs will be included in the damages claim. These costs can include future surgery, medically recommended therapies, pharmaceutical items (such as pain medication), travelling expenses, and in some cases only, past or future paid care.
The payment of common law damages is made once a settlement is reached between the parties. If a settlement agreement is not reached during informal negotiations or at a Compulsory Conference in the pre-court proceedings, a common law claim for damages will move to the next stage, a trial in a court of law.
Before going to a trial, documents need to be filed with the Court. Which Court will depend upon the monetary amount being claimed by the injured worker. Negotiations can continue between the parties during this stage and the matter can still be resolved before a trial. Most claims for common law damages are resolved outside the court system, following negotiations.
WorkCover, usually through their lawyers, will discuss the matter with an employer throughout the negotiation phase and also at the Compulsory Conference. This is because the common law damages payment agreed upon could affect an employer’s future premium rate.
Employers will be required to provide assistance to WorkCover and their lawyers in defending a claim and giving evidence at a hearing, however, it is important for an employer to remember that WorkCover Queensland is the insurer in a common law claim for damages, and therefore, the employer has little capacity to influence decisions made by the insurer.
Our legal team at Queensland Workplace Law are highly experienced in dealing with common law claims on behalf of an employer and can provide you with assistance to ensure the best outcome for your business.
